45 Misc. 603 | N.Y. App. Term. | 1904
In an action brought by the lessee to recover moneys deposited as security for his performance of the covenants of the lease, a counterclaim based upon a loss in reletting for the lessee’s account was dismissed, upon the ground that the lessee’s covenant to respond for that loss fell by reason of the termination of the lease through dis
In Michaels v. Fishel, the landlord’s right to relet for the tenant’s account depended upon his “ re-entry ” for the tenant’s default, and the court, giving the strict common law meaning to the term, interpreted the lease as excluding such a reletting, where possession was not assumed by the landlord through resort to the remedy of ejectment to enforce the right of “ re-entry,” as technically understood; hence the covenant was held unavailable where- possession was resumed by invoking the summary remedy given by the statute.
The covenant in the lease before us gives the landlord the right to “ resume possession,” a term of no technical meaning and obviously not inconsistent with the maintenance of summary proceedings to enforce the right. The word “ re-enter ” is not used in the covenant, and, beyond the possibility of argument, the rule of Michaels v. Fishel, does not apply.
Such a covenant is enforceable notwithstanding the termination of the lease by summary proceedings (Lewis v. Stafford, 24 Misc. Rep. 717), and there was, therefore, error in the dismissal of this counterclaim.
The court below also erred in the construction of the pleadings leading to the ruling that the plaintiff’s case was established without proof. The answer contained certain specific admissions and then proceeded to deny each and every other allegation of the complaint “ not hereinbefore specifically admitted, controverted or denied.” This sufficed as a general denial. Griffin v. Long Island-R. R. Co., 101 N. Y. 348. There was no ambiguity in what was covered by the denial, depending upon the discovery of allegations “ not qualified,” as in Clark v. Dillon, 97 N. Y. 370, and the latter case is to be distinguished from the case at bar precisely as it was distinguished in the Griffin case.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event..
Freedman, P. J., and Gildersleeve, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.