201 A.D. 12 | N.Y. App. Div. | 1922
The complaint herein alleges that on or about November 17, 1919, plaintiff and defendant entered into a written lease, whereby plaintiff leased to defendant the apartment known as No. 122 in the premises 884 West End avenue, borough of Manhattan, city of New York, for the term of five years, commencing October 1, 1920, and ending September 30, 1925, at the annual rental of $4,500, payable in equal monthly installments of $375 in advance on the first day of each and every month during said term. The lease, among other promises, covenants and conditions] contained the following:
“ First. The tenant hereby agrees to pay the rent as above stipulated without any deduction, fraud or delay, and the tenant also agrees that if said rent is not paid at the time and in the manner above provided, or if default shall be made in any covenant or agreement herein contained, or if the said premises or any part thereof shall become vacant during the term hereby demised, or if this lease is terminated by the landlord as provided in Article 15th hereof, the landlord may resume possession of said premises by summary proceedings to dispossess or otherwise, without notice to the tenant, which notice is hereby expressly waived. And in the event of the landlord so resuming possession, an amount equal to the whole of the rent herein reserved for the balance of the term as herein originally demised, shall thereupon become immediately due and payable by the tenant to the landlord, and the tenant hereby expressly agrees that he will forthwith pay the same to the landlord and that he will also forthwith pay to the landlord any damage and expense which it may suffer in resuming possession and reletting said premises, including cost of redecorating said premises and putting the same in rentable condition, the cost of advertising and a reasonable commission for reletting, and the landlord agrees that if it thereafter relets said premises, which, in its option, it is hereby expressly authorized to do either by written lease or otherwise, and the tenant has made the payments as in this article provided, the landlord will pay to the tenant on the last day of each month during the balance of the term herein
The complaint further alleges that defendant entered into possession and occupied the apartment until about December 30, 1920; that during December, 1920, defendant moved from the apartment, and it thereupon became vacant; that on January 1, 1921, pursuant to the terms of the lease, there became due and payable to plaintiff the sum of $375, the installment of rent for the month of January, 1921, which, although duly demanded, defendant has failed, refused and neglected to pay; that on January 1, 1921, there remained unexpired four years and nine months of the term originally demised in the lease, and by reason of the vacancy in said apartment and the non-payment of the January, 1921, installment of rent, the rent for the unexpired term, amounting to $21,750, became immediately due and payable, pursuant to tha clause above quoted; that plaintiff duly performed all the terms, covenants and conditions of the agreement on its part to be kept and performed, and that demand has been duly made for payment of the sum of $21,750, which has been refused. Judgment is asked in the sum of $21,750, with interest from January 1, 1921, and costs.
The answer admits the making of the lease containing the clause in question, and occupancy of the apartment until December, 1920, but denies the other allegations of the complaint. It also sets up four separate defenses: The first alleges fraud and mis-
representation attending the execution of the lease; the second sets up that the walls of the building were poorly constructed and the rain came through; that the premises were excessively heated by reason of certain steam pipes running through the apartment, and that the apartment was uninhabitable, and the unhealthful condition amounted to a nuisance, forcing defendant to abandon the premises; the third alleges that, because of the facts set out in the second defense, he was evicted from the apartment and put to the expense of removing therefrom, whereby he suffered damage in the sum of $1,235; the fourth defense alleges by way of setoff that, after the abandonment of the premises, plaintiff took possession of the same and rented the premises on February 1, 1921, at a rental of $3,500 per annum, to a responsible person, and that plaintiff has collected the rent at that rate since said date.
The plaintiff’s case consisted of the testimony of the manager of the premises in question who proved the defendant’s entry into possession of apartment 122 therein about the middle of September under the written lease, which was received in evidence, and his departure therefrom on December thirtieth. It was conceded that the January rent, which became due January first, had been
An examination of the article of the lease in question shows that the following are the eventualities, in any of which the landlord may resume possession of the premises and become entitled to payment of an amount equal to the whole of the rent therein reserved ($22,500) less rent actually paid and plus (a) any damage and expenses which the landlord may suffer in resuming possession and reletting the premises; (b) the cost of redecorating the premises and putting them in rentable condition; (c) the cost of advertising; (d) a reasonable commission for reletting:
First. Failure to pay any monthly installment of rent when due;
Second. Default in any covenant or agreement' of the lease;
Third. If the premises or any part thereof shall become vacant during the term;
Fourth. If the lease is terminated as provided by article 15 thereof.
As to the first provision, a default of one day in making payment of a month’s rent would make the whole amount of rent for the balance of the term due.
As to the second provision, the lease is made upon many conditions which the tenant covenants to perform, embraced in sixteen articles, some important, many trivial, such as not driving picture
As to the third provision, it is to be noted that, if the tenant moves out, he is obligated to pay the rent for the balance of the term in a lump sum, even if not in default and ready, willing and able to continue his monthly payments.
As to the fourth provision, this refers to an article of the lease under which the landlord is entitled to terminate the lease on giving three days’ notice and to take possession of the premises and institute dispossess proceedings in the following cases: (1) If the landlord shall deem objectionable or improper any conduct on the part of the tenant, the occupants of the apartment leased thereby or visitors thereto; (2) if the tenant violates the restriction against assignment or mortgaging of this lease or subletting, or if the tenant shall permit the premises to be occupied by persons or for purposes other than those allowed by this lease, or (3) if the tenant violates any covenant, agreement, condition, rule or regulation therein contained. Furthermore, while the tenant is required to pay the rent for the balance of the term at once, if the landlord rqlets the premises he is only to pay over the rent received by him from month to month as received, thus making the tenant lose interest on the balance of the sum deposited over the rent as turned over to him. Nor is the landlord obligated to relet or to make any effort so to do. It will be seen that this lease,- most exhaustive in the restrictions and burdens placed upon the tenant, leaves him at the mercy of the landlord, who for breach of the most trivial requirement has the right to declare a default and to call for payment of the rent for the remainder of the term. Some of the conditions under which this may happen are so insignificant and trivial, involving either no damage whatever or a nominal amount, as to show that the provision for the payment of the whole rent reserved is in reality a penalty entirely disproportioned to any damage that could possibly ensue for the tenant’s acts. Nor is this case comparable to those where an acceleration of the date for payment of the principal of a mortgage is provided in case of failure to meet interest due. There the obligation to pay the entire principal is fixed and certain, and the whole amount is payable in any event. Here the 8th article of the lease provides that, in case of fire rendering the premises unfit for occupancy, rent shall be suspended while the repairs are being made; and, if the landlord decides to rebuild, the term shall cease and the accrued
“ There is little satisfactory discussion on this question in the higher courts of the State. Reference is made to the matter in Jackson v. Baker (2 Edw. Ch. 470); Cotheal v. Talmage (9 N. Y. 551); Niver v. Rossman (18 Barb. 50); Lampman v. Cochran (16
It was held in Keck v. Bieber (148 Penn. St. 645) that the presumption is that a lump sum named by the parties to a contract is a penalty, rather than liquidated damages; the name by which it is called is of slight weight, the controlling elements being the intent of the parties and the special circumstances of the case; and where there are numerous covenants of the most varied kinds and importance, and yet the sum named is payable for the breach of any, even the least, it is a penalty.
Appellant now insists that it was entitled in any event to recover judgment for one month’s rent. It is sufficient upon that point to cite what occurred in the trial court: "Mr. Steiner [plaintiff’s counsel]: Will your Honor reserve your decision on
the defendant’s motion and allow us to go into the case and allow me to submit briefs? The Court: No. Of course, there is a
question whether you have not made out a cause of action for $375. If you wish to press that question, I am open to anything you may say. Mr. Steiner: I do not simply wish to rest on that account, your Honor. The Court: You do not care to press the case as an action for $375? Mr. Steiner: No, your Honor.”
The judgment appealed from should be affirmed, with costs.
Clarke, P. J., Smith, Page and Greenbaum, JJ., concur.
Judgment affirmed, with costs.