45 N.Y.S. 342 | N.Y. Sup. Ct. | 1897
The plaintiffs hired a theatre from the owner, and subleased it to the defendants for a term from December 2, 1894, to April 30, 1896, at the yearly rent of $27,000, payable monthly in advance at $2,250 per month. It was contracted that the defendants should pay to the plaintiffs the sum of $4,500 upon the formation of the contract, to be applied in payment of the rent for the months, of March and April, 1896, the' last two months of the term of the lease, unless before March, 1896, the defendants should violate the terms of the contract, in which case the plaintiffs were to keep the $4,500 as their “ liquidated damages ” for the breach of the contract by the defendants. , It was specially stipulated that this sum of $4,500 was to be regarded as “ liquidated damages and not as a penalty.” The defendants paid this money to-the plaintiffs, who now have the same.
About a year before the expiration of the lease the defendants broke the contract by defaulting on the rent due
Plaintiffs bring this action to recover for the rent of' the months of April and May, 1895, which they claim in addition to the right to keep the $4,500 already paid to them as liquidated damages. Defendants maintain that this sum so paid should be applied in payment of the rent due from the defendants to plaintiffs and they also counterclaim for damages caused by their being evicted by the owner through the fault of the plaintiffs in not paying the rent due from them to such owner. The plaintiffs terminated the contract of lease on the 5th day of June, 1895, by obtaining a warrant for the removal of their tenants, the defendants, from the demised premises; and their only claim against their former tenants is for the rent payable at the time the warrant was issued. See Code, § 2253; Fursman v. Pennace, 15 Civ. Pro. 341. The defendants remained in possession of the premises until the 5th of June, 1895, when they were evicted both by the plaintiffs and by the owner. Had there been no agreement as to liquidated damages in the contract, the measure of plaintiffs’ damages for defendants’ breach of contract would have been the unpaid rent for the months of April and May, 1895, and for the fews days of June, 1895, that they still continue 1 in possession, in spite of the efforts of plaintiffs to remove them. See Fursman v. Pennace, supra. But the contract especially fixed and liquidated the damages beforehand at the sum of $4,500, which defendants paid to plaintiffs.
With-regard to the counterclaim of defendants, I am of the opinion that it should, also be -dismissed.. In the first place) no damage has been shown, and, in the second place, the defendants violated the contract by 'defaulting on the rent for April and Hay, 1895, and proceedings to dispossess them had been commenced by plaintiffs before the owner had obtained judgment in his proceedings to dispossess both the plaintiffs and defendants, and the warrant in plaintiffs’ case was issued on the same "day on which the warrant was issued in the .owner’s case.
Judgment directed dismissing /both the complaint and the counterclaim.