48 N.Y.S. 398 | N.Y. App. Div. | 1897
The action is brought upon an undertaking given by defendants to obtain a stay of the execution of a warrant awarding' the plaintiffs as landlords the. delivery and possession of certain premises in the possession of Canary and Lederer as tenants, the said- warrant having been granted for the non-payment of the sum of $2,250, rent alleged to be due on the 1st day of April, 1895, for the said month of April. The said tenants having failed to pay the rent, the proceeding in which this undertaking was given was instituted hy the landlords to obtain possession of the leasehold premises, and a warrant was granted removing the tenants from the premises and directing the delivery thereof to the plaintiffs as landlords. The undertaking recites that the said tenants had appealed from the order awarding the warrant, and that a justice of the Court of Common Pleas having fixed the amount of the undertaking at $5,000, these defendants, by such undertaking, did thereby j “ jointly and severally, undertake that if, upon the appeal, a final determination is rendered against the said tenants and appellants, we will pay all rent accruing or to accrue upon the premises, not exceeding the sum of $5,000.” It appears that .subsequently, and on the 16th day of December, 1895, the appeal from such final order was decided and the order affirmed by the General Term of the Court of Common Pleas, and judgment was-entered upon such affirmance, a copy of which judgment, with notice of entry, being served upon the attorney for the tenants, and more than ten days before the commencement of the. action upon the defendants -who executed the undertaking. It also appeared that the plaintiffs were in possession of the premises under a lease executed by one Benjamin Sire; that subsequently, and on May 18, 1895, the said Benjamin Sire commenced proceedings to dispossess both the plaintiffs, his lessees, and Canary and Lederer as sub-lessees; and that such proceedings were
The original answer interposed by the defendants alleged that upon the execution of the lease from the plaintiffs to Canary and Lederer, in pursuance of this provision, the sum of $4,500 was paid' by Canary ánd Lederer to the plaintiffs, which was to be applied to the payment of the rent of the premises for the two last months of the term, namely, April and May, 1896, providing that the tenants, Canary and Lederer, should comply with all the covenants and conditions of the lease up to that time, with a provision, however, that in case they should fail to comply with all the terms and conditions •of the lease up to that time the amount should be retained by the ' plaintiffs as liquidated damages for a failure to comply with such te>'ms and conditions, or for a breach of the obligation contained in ■ such lease; that as the plaintiffs had received this sum of $4,500, they were entitled to deduct it from the amount due for rent; and that nothing was due to the plaintiffs from Canary and Lederer for the months of April and May, 1895. By a supplemental answer it was alleged that the plaintiffs had commenced an action ■ against Canary and Lederer to recover the rent for the months of April and May, 1895 ; that such cause having come on to he tried, judgment was entered dismissing the complaint, and that such judgment was ■res adjudicada as to the claims of these plaintiffs against these •defendants under the undertaking, and was a bar'to any recovery in this action. The plaintiffs, on the other hand, insist that the judgment of the District Court dispossessing Canary and Lederer was itself an adjudication that the rent for these two months was due •and unpaid.
The principle is well established that a proceeding to dispossess for non-payment of rent, which has proceeded to final Order or judgment, is, as between the parties, an adjudication as to. the relation of landlord and tenant, and that rent was due at the time of the commencement of the proceeding. It is not, however, an adjudication '
As before stated, this undertaking was riot given to secure the payment of any rent due under that lease, but was, by' express terms, given to secure the payment of the rent of the property during the time that the appeal was pending from the order dispossessing the tenants. These defendants agreed to pay the rent pending that time. This was an independent agreement upon their part based upon a sufficient consideration and upon the happening of the contingency named, viz., upon the affirmance of the final order in the proceedings against the tenants and appellants, these defendants agreed to pay all rent accruing, or to accrue, upon the premises, not exceeding the amount named in the undertaking. This undertaking was executed on the 1st day of May, 1895. Under the lease the rent for the month of April had already accrued. R became payable on the first day of April. The time for which that payment was to give to Canary and Lederer the possession of the property had expired, and the execution of the warrant would not give to the plaintiffs any right to receive the proceeds of the property for the month of April. The rent for that month, therefore, was not within the obligation assumed by the defendants when they executed this undertaking. We think, however, that the plaintiffs were entitled to recover the amount of rent for the month of May. During that month the defendants were kept out of possession of the property by the stay of proceedings which was procured by this undertaking. But for the execution of this undertaking the plaintiffs would have been entitled to have possession of the. property on the first day of May, and thus would have been entitled to its use during that month. The rent for that month was, therefore, rent accruing or to accrue, pending the appeal, and comes within the obligation assumed by the defendants-upon the execution of-the undertaking.
The defendants in this case, however, insist upon the right to apply, or to have applied, the $4,500 paid by Canary and Lederer to the plaintiffs under the lease between them, to the rent that should become due and owing during- these two months, and thus to be relieved from liability to pay such rent, on the ground that
Row, the meaning of this provision is quite clear. If the lessees should comply with the conditions of their lease up to the 1st day of April, 1896, then this deposit was to be applied to the payment of the rent for April and May, 1896. If, however, they should fail to comply with the covenants contained in. the lease up to that time, then the sum of $4,500 was to be retained by the lessors as liquidated damages for a breach of the covenants contained -in the lease. Row, the damages stistained by such a breach would not be the amount of rent that accrued prior to the time when any covenant was broken, which would entitle the plaintiffs to retain this deposit as liquidated damages.. Irrespective of the damages sustained by the plaintiffs upon a breach of the covenants by Canary and Lederer, any sum of money due and unpaid for -rent prior to the time of' the breach would be an obligation that the plaintiffs could collect from their tenants, not as damages for a breach of the lease, but as money due under the covenants contained in the lease. The agreement between the parties by which this sum of $4,500 should be retained by the plaintiffs as liquidated damages for a
We think, therefore, that the plaintiffs are entitled to recover from these defendants the rent for the month of May, 1895, and that the verdict must be reduced from $4,500 to $2,250 and interest, and judgment must be directed for the plaintiffs for this amount, with costs in the court below and in this court.
Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.
Verdict reduced to $2,250 and interest, and judgment directed for plaintiffs for that amount, with costs in the court below and in this court.