66 How. Pr. 186 | City of New York Municipal Court | 1883
— The issuing of the warrant in the summary proceedings cancels the agreement for the use of the premises, and annuls the relation of landlord and tenant, except that it does not prevent a landlord from recovering by action any sum of money which was, at the time when the precept was issued, payable by the terms of the agreement (Code, sec. 2258; Hinsdale agt. White, 6 Hill, 507). The plaintiff claims that as the lease has been annulled by the act of the landlord, and by operation of this statute, that after deducting the rent from June first to June eighth, the day on which the warrant was issued, that the covenants of the lease have been performed by the tenant, as far as performance is possible, and that by the terms of the agreement, under which the deposit was made, the sum deposited, less said deduction must be returned. But this result does not follow. The tenant did not “ faithfully perform the covenants on her part, contained in the lease.” She made default in the payment of the June rent, and the summary proceedings commenced by the plaintiff were founded on that default. The issuing and execution of the warrant, it is true, terminated the rights of the tenant under the lease and restored the plaintiff to the possession of the premises demised. Whether this was advantageous or disadvantageous to the plaintiff is an inquiry not necessary to make, nor is it requisite to inquire whether the deposit made is inadequate or more than sufficient to recover any loss which the tenant’s default may have occasioned. It is enough that by the agreement of the parties,
The' cancellation of the lease, by operation of the statute in question, is not tantamount to a voluntary rescission of the contract by the mutual assent of the parties, so that each is to be restored to the position she originally occupied. It is more in the nature of a judgment of condemnation against the tenant, by which she is adjudged in default, and for such default is, by act of the law, deprived of rights which she otherwise might have retained.
If the tenant had paid her rent and performed the substantial covenants of her lease, and the landlord had refused to return the deposit solely on technical grounds, a different question might have arisen ; but in the present case the tenant concedes, and the judgment of dispossession establishes the breach of a substantial covenant upon her part, and this without any legal excuse for non-performance. There can be no apportionment in such a case in favor of the wrong-doer.
A number of reported cases between vendor and vendee of real estate will be found to contain principles analogous to those to be decided here. A few of them will be referred to. Thus, in Ketcham agt. Evertson (13 Johns., 346), it was held that the sale of property by the vendor after the refusal of
In Hayes agt. Hunt (42 Barb., 58), judge Johnson said: “Ho case can be found where a purchaser has been allowed to recover back partial payments after default in making further payments, when the vendor has merely kept the property agreed to be sold or sold it to another in consequence of such default.” To the same effect see Page agt. McDonald (46 How. Pr., 52; affirmed by the court of appeals, lb., 299). Another view may be taken of the case with the same result. The rent was payable in advance, and the landlord became entitled to the rent for the entire month of June, notwithstanding the dispossession of the tenant (Healy agt. McManus, 23 How. Pr., 238; Cushingham agt. Phillips, 1 E. D. Smith, 416), and the month’s rent equals the amount of the deposit. So that, upon either ground, it follows that there must be judgment for the defendant.