56 N.Y.S. 632 | N.Y. App. Div. | 1899
This is an action to recover rent under a written lease whereby the plaintiffs rented to the defendant a house in the city of Poughkeepsie from May 1, 1897, to May 1, 1898, for $25 a month, payable in advance. In September, 1897, the rent for that month not having been paid, the defendant personally moved to another house in the neighborhood, leaving a number of subtenants in occupation of the premises in question. The plaintiffs thereupon refused to allow the defendant to collect any more rent from these subtenants, and proceeded to collect all such rent themselves. They have credited to the defendant the aggregate amount thus collected, and taken judgment for the difference between that amount and the rent reserved by the lease. The right to do this is asserted by virtue of a provision in the instrument to the effect that if the premises, or any part thereof, should become vacant during the term, the lessors might re-enter and releí: the property, applying such rents as they should receive upon such reletting to the payment of the rent due under the lease, which provision also declared that the lessee should remain liable for any deficiency. Underhill v. Collins, 132 N. Y. 269, 30 N. E. 576. The learned county judge was of the opinion that, because the defendant abandoned the premises to the plaintiffs, after they had asserted the right to collect the rents from her subtenants, they might rightfully re-enter as they did, and hold the defendant liable for the deficiency in the rent under this clause of the lease. It does not seem to us that this is the fair legal import of what the defendant did. It is practically conceded that both parties contemplated that the tenant should let furnished rooms in the demised premises. The privilege of reletting on account of the tenant, who should still remain liable for any deficiency in the rent, was to be exercised only in case the premises became vacant. The house was not rendered vacant within the meaning of the lease by the fact that the defendant herself went to live in another house during the term. She explains why she did this, intending to keep “roomers,” as she called them, in the plaintiffs’ house, and use the other house for table boarders. When she moved out, however, the plaintiffs not only refused to allow her to collect the rent from her “roomers,” but insisted upon collecting it themselves, thus depriving her wholly of the beneficial use of the leased property. It is true that the defendant, after the plaintiffs had thus virtually taken the
Judgment reversed, with costs. All concur.