104 Misc. 547 | N.Y. App. Term. | 1918
The parties hereto entered into a written lease whereby the defendant agreed to pay to the plaintiff in monthly installments a stipulated rent for certain premises for a period of five years from the 1st day of May, 1916. The defendant failed to pay the rent for the month of July, 1917, and ivas thereupon dispossessed. The lease contained a covenant that if any rent shall be due and unpaid, or if default shall be made in any of the covenants therein contained, then it shall be lawful for the plaintiff to re-enter and resume possession of the said premises and the same
The defendant now claims that this decision of the " Court of Appeals is a binding authority to support its views, whereas the plaintiff claims that the decision in the case of the Matter of Hevenor has been subsequently explained by the Court of Appeals in the case of People v. St. Nicholas Bank, 151 N. Y. 592, and that the rule finally laid down by the Court of Appeals permits a recovery under the facts proven in this case. In that case the tenant bank became insolvent, and.in statutory proceedings for the dissolution of the corporation a receiver was appointed. Shortly after his appointment he vacated the premises, whereupon the landlord re-rented the same as he might do under the lease to another tenant for the balance of the term at a rental per annum of $3,000 less than the original
It is to be noted, however, that in the opinion both of the Appellate Division and of the Court of Appeals in the St. Nicholas Bank case the courts recognized that a receiver of a corporation is bound to recognize not only debts which are due but debts which will become due in the future, and the courts in that case assumed that any debt of the St. Nicholas Bank for a deficiency in rent was a debt which was not due at that time. In the present case, however, if the debt was not due at the time when the action was brought the plaintiff cannot recover in this action.
In the ease of Harding v. Austin, 93 App. Div. 564, the facts were entirely analogous to the facts in the case before us, but the landlord in that action asked for judgment only for the rent unpaid at the time the
It seems to me that although this part of the opinion' of the court is only a dictum, it correctly represents Ihe rule applicable to the present case. Under the agreement made, there were two covenants: first, to pay the rent for the premises; and second, to pay any deficiency in rent that might arise if the landlord should re-enter and relet the premises for the tenant’s benefit. The agreement to pay rent created an obligation which arose every month and at the beginning of each month a cause of action accrued for the rent then payable. The obligation to pay a deficiency in the rent could, however, from its very nature, arise only when such deficiency could be ascertained, that is at the end of the term, and until then no liability existed against the defendant and no cause of action had accrued to the plaintiff.
It may perhaps be urged that since the landlord has re-rented the premises till the end of the term, as he had a right to do, for an amount less than the rental which defendant agreed to pay, he has parted with his right of possession of the premises, and that, therefore, in no event can he obtain from a new tenant any reimbursement for the loss of rentals which he had sustained while the premises were vacant and that he should, therefore, have a right to bring this action for such established loss waiving his right to- claim any further deficiency. It does not seem to me that this contention can aid the plaintiff in this action. In the first place, if under the terms of the agreement the
In vieAv of the conclusion I have reached on this point, it becomes unnecessary for me to consider the other points raised by the tenant. Judgment should therefore be reversed, Avith thirty dollars costs, and complaint dismissed, Avith costs.
Pendleton and Finch, JJ.-, concur.
Judgment reversed, with costs.