177 A.D. 760 | N.Y. App. Div. | 1917
Schwartz & Co., defendant, for $175, and after enlargement of the building, $275 per month, leased in writing a moving picture place to Minnie Geiger, who kept it some three months and assigned it, with the deposit, to plaintiff, who had it two months and was dispossessed for non-payment of rent, whereupon the landlord, defendant, was unable to rent it for three months and then got $250 for two months and then got $200 per month. This action is to recover a $1,000 deposit less certain rent due, and the questions are (1) for what does the lease show the deposit was made, and (2) should the defendant have been allowed to show that there was a mistake in drawing the lease. The lease provides: “ The party of the second part has this day deposited with the party of the first part the sum of One thousand Dollars as security for the faithful performance of the terms, covenants and conditions in the within lease contained, it being expressly understood and agreed that if the party of the second part surrenders said premises, or disposes thereof prior to the expiration of this lease, then and in that event said security shall belong to the party of the first part as liquidated and stipulated damages; and the parties hereby stipulate to treat said deposit as such liquidated damages, because they cannot ascertain the exact amount of damage which the party of the first part would sustain in the event of the breach or violation heretofore mentioned. If, however, all terms, covenants and conditions are fully complied with then and in that event, said security shall be returned to the said party of the second part.” The introductory words show that the money was to secure the tenant’s covenants, whatever they were, and the broad general sentence at the end of the paragraph is to the same effect. If there were nothing more, the defendant’s right to keep the money would be undoubted.
The judgment should be affirmed, with costs.
Stapleton, Mills and Rich, JJ., concurred; Carr, J., not. voting.
Judgment affirmed, with costs.