75 N.Y.S. 544 | N.Y. App. Div. | 1902
Lead Opinion
On June 27, 1899, the defendants and Jacob Goldberg and Adolph Goldstein made a lease of certain premises situate in the borough of Brooklyn. There was no building upon the said premises when the lease was entered into, but the defendants agreed to and did erect thereon a brick building containing stores, halls, a gallery and meeting rooms. The premises were demised for a period of ten years from the time of the completion of the building, and the rent stipulated in the lease was $3,300, payable in monthly installments of $275 on the first of each month. At the time of the making of the lease the lessees deposited with the lessors-the sum of $1,000 under the following conditions, as provided in the lease: “ The said tenants shall deposit and have deposited, with said landlords the sum of one thousand ($1,000) dollars* the-receipt whereof is hereby acknowledged, as security for the faithful performance of this agreement on their part, and in case of any breach thereof by said tenants said amount shall be paid and retained by said landlords as liquidated damages for such breach, but in case the actual damages suffered by said landlords through such breach shall be greater than said sum of one thousand ($1,000) dollars then said sum shall be applied on account of such damage and said tenants be still liable for the balance thereof.
After the erection of the building the tenants entered- into possession, and rent was duly paid up to March 1, 1901; but the rent for the month of March was not fully paid, a balance of $45 remaining unpaid. Summary proceedings were commenced for the possession of the premises, and, on April 3, 1901, a warrant was issued to remove the tenants from the premises. ' All right, title and interest in the aforesaid $1,000 was duly assigned by the lessees, and the plaintiff herein now holds the same. This action was brought to recover the sum deposited as security for the faithful performance of the covenants of the lease. At the close of the trial both parties moved for the direction of a verdict. The court denied the defendants’ motion and directed a verdict in favor of the plaintiff for the sum of $955, being the amount on deposit less the amount of rent remaining due and unpaid, and to such direction the defendants duly excepted.
The disposition of this case turns upon the question as to whether the deposit is to be treated as liquidated damages for a breach of the covenant contained in the lease or as a penalty. The rule of law which governs the construction of such contracts is reasonably well settled. The question is to be determined upon the intention of the parties as gathered from the language used in the contract considered in the light of the circumstances and conditions as they existed at the time when it Was made. Where the language is clear and explicit, providing that the sum reserved is to be regarded as liqui
The language in the present case is clear and unmistakable in providing that the §1,000 should be regarded as liquidated damages. These are the terms of the instrument, and in addition thereto provision was made for an award of further damages in excess of the sum of $1,000 in the event it should be sustained. So far, therefore, as the language of the contract is concerned, the parties have in definite terms expressed their intention respecting the deposit. In addition thereto it appears that at the time when the contract of lease was made the land was vacant and the arrangement between the parties contemplated that the defendants would be put to a very large expense in order to enable them to furnish a building which should answer the requirements of the lease. It is not unreasonable, therefore, to presume that the parties had in mind that a breach of the contract, in view of this large expenditure of money, might inflict upon them serious damage which would be difficult of accurate ascertainment and in many respects might be impossible to establish. It is readily seen that had the lessees made breach of their contract during the course of the building, or after it was finished and before entry, the defendants might be damnified thereby much more than the sum of $1,000. So that there existed in this
Respondent claims that the case of Chaude v. Shepard (supra) is controlling and conclusive of her right to recover and that the necessary construction of this clause is that the deposit was a penalty and not liquidated damages. An examination of that case, however, shows, that it was an ordinary lease of a building in existence at the time when the lease was made; that the breach of covenant was for the non-payment of rent; and that, as the- damages arising out of such breach were capable of accurate ascertainment and the sum reserved was largely in excess of such damage, the court was required under well-settled authority to construe thetsame as a penalty and not as liquidated damages. In the present case, as we have seen, both of these elements were lacking. The damages; which might have been sustained by reason of the erection of the building, might not have been accurately ascertained, and damages for a breach arising out of it might be much in excess of the sum deposited, and the parties evidently contemplated this condition by making provision for the payment of such further damage as might be established in the event of a breach. The two cases are, therefore, clearly distinguishable.
It follows that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.
O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., and Laughlin, J., dissented.
Dissenting Opinion
(dissenting):
I do not think that the $1,000 can be considered as liquidated damages. According to the language of- the agreement if there was any breach of its condition, the $1,000 were to be liquidated damages in case the damages to be proved were not equál to that amount, but in case the damages which could be proved exceeded that amount the $1,000 were not to be liquidated damages: I am unable to comprehend how the amount fixed in an agreement can, by the terms thereof, be both liquidated and unliquidated.
Dissenting Opinion
(dissenting):
I dissent on the ground that the deposit was made as security for the damage and not as liquidated damages. Here no damages are shown éxcept the forty-five dollars rent which has not been paid, and, therefore, that is the only amount recoverable on this record.
Judgment and order reversed, new trial granted, costs to appellant to abide event.
