71 N.J.L. 478 | N.J. | 1904
The opinion of the court was delivered by
By the terms of the lease in this case, $285 was deposited by the plaintiff with the defendant, upon the fol
The lease was between the parties to this action, and was dated February 2lst, 1901, and ran for ten years from the 15th day of March, 1901. The rent was payable monthly, on the first day of each month. The plaintiff entered into possession of the premises under the lease.
On November 1st, 1903, the plaintiff defaulted in the payment of the rent for that month, and proceedings were taken by the defendant under the Landlord and Tenant act, under which the plaintiff was dispossessed from the premises. This suit was then instituted to recover the amount of the deposit, under the terms of the clause in the lease above quoted.
The plaintiff obtained judgment in the court below for the amount of the deposit, less the rent fot the month of November, 1903, and the water rent then due upon the premises, and to be paid by the plaintiff under the covenants in the lease. This, we think, was right. There was no allegation of any other default existing prior to the date of the dispossession of the plaintiff from the premises, for which the deposit could be held.
The deposit, under the lease, was a conditional one — first, to make good any default under the lease; that, we suppose, means any default in the doing of any of the things agreed by the lease, and, in default thereof, to pay damages; and second, if no default occurred, the said deposit was to pay the rent of the last three months of the term demised.
It was, as the New York Court of Appeals says, in Chaude v. Shepard,, 122 N. Y. (at p. 401), “an indemnity merely. The plaintiff’s relation as tenant can be terminated before the end of the term only by the act of consent of the defendant, and when he accomplished it and took possession of the premises, the damages with which the plaintiff was chargeable were those only which resulted from the breach of the covenants prior to the entry of the defendant upon the termination by the latter of the plaintiff’s tenancy, as there could, in the nature of the case, be no breach of them committed by the plaintiff after the effectual termination of such relation and re-entry by the defendant.” Scott v. Mantells, 109 N. Y. 1.
We think the District Court rightly held that the plaintiff was entitled to recover the fund deposited, less the November rent and water tax due under the lease.
The judgment is affirmed, with costs.