33 Misc. 472 | N.Y. App. Term. | 1900
The action is to recover the sum of ninety dollars, the balance of two hundred dollars, deposited by the plaintiff with the defendant at the time the lease hereafter referred to was executed. The controversy was submitted to the court below upon an agreed statement of facts, which, in summarized form, is as follows:
On the 6th day of October, 1896, the plaintiff leased the premises in suit of the defendant for a term of five years and six months from the 1st day of November, 1896, at a rental of $110 per month, payable in advance by the fifteenth of each month. Among the covenants contained in the lease was the following: “ Whereas the party of the second part has paid to the party of the first part the sum of $200, security for the faithful performance of the covenants herein contained on his part; therefore, in case the party of the second part shall fail to perform each and every covenant herein contained, or in case the party of the second part shall be dispossessed from the premises by due process of law, for the nonpayment of rent or any cause, the party of the first part may retain the said sum of $200 as liquidated damages for the failure of the party of the second part to comply with the agreement as aforesaid, without any rebate or allowance in the event of dispossession. In case, at the expiration of the term, said tenant shall have fully performed the covenants herein contained on his part, the said sum of $200 is to be returned to him by the party of the first part.” The plaintiff took possession under this lease in November, 1896, and on June 2Y, 1898, was dispossessed for failure to pay rent for that month. The warrant was issued July 1, 1898, and the
As one ground for a reversal the appellant seeks to rely upon the rule, established by section 2253 of the Code of Civil Procedure, that the issuance of a warrant in summary proceedings for the removal'’of a tenant from the demised premises operates to annul the lease and all rights, obligations and liabilities created with it, with the single exception that the liability will still exist to pay rent accrued prior to the issuance of the warrant, and cites numerous cases in which the rule has been applied. This argument, however, loses sight of the fact that in the present case there is an express covenant in the lease that the $200 in question may be retained by the defendant as liquidated damages, “ in case the party of the second part shall be dispossessed from the premises by due process of law,” and the further similar provision that there shall be “ no rebate or allowance in the event of dispossession,” It is obvious that these provisions were intended to survive the issuance of a warrant in summary proceedings. Lewis v. Stafford, 24 Misc. Rep. 717.
The remaining point taken by the appellant is that the sum deposited should be regarded, not as liquidated damages, but as a penalty. This contention is based upon the rule “ That where there are several covenants or stipulations in an agreement, some of which are of a certain nature, and others uncertain, with one entire sum to be paid upon the breach of any of them, such sum will be regarded as a mere penalty to give place to an inquiry as to the actual damage sustained by the breach.” 13 Am. &. Eng. Ency. of Law, 865. And the further rule, that where a party agrees to do several things, one of which is to pay a sum of money, and in case of failure to perform any of the stipulations agrees to pay a fixed or larger sum as liquidated damages, such fixed sum is regarded as a penalty, and being a penalty as to one stipulation, it is as to all. Id. 864, Lampman v. Cochran, 16 N. Y. 275. The appellant argues that since the full amount of $200 was, un
The case at bar is distinguishable from that of Chaude v. Shepard, 122 N. Y. 397, for the reason that it therein appeared, that the sum deposited was to be held merely as security for the faithful performance of the covenants of the lease, the same to be applied as payment of rent on the last three months of the term, provided the lease was not sooner terminated by plaintiff’s failure to perform, in which last event it was declared that the sum paid should be forfeited and become the property of the defendant absolutely. Here the situation is entirely different, the covenant in suit, con
It might he argued with some plausibiEty that, when the last installment-was reached, the tenant would then be under obEgation to forfeit $200 for the failure to pay $110, but this is a strained construction of the agreement and it should not be supposed, in order to defeat the contract, that the parties intended any such unreasonable result. Wherever a deposit, in such a case as this, equals or exceeds the aggregate of the remaining installments of rent and there are no other covenants for the performance of which the landlord is entitled to retain the full amount of the deposit, it is plain that he should, if the tenant insists, take the installment out of the deposit and not call upon the tenant for further payments.
We conclude that the judgment should be affirmed, with costs.
Beekman, P. J., 'and O’Gokman, J., concur.
Judgment affirmed, with costs.