177 A.D. 765 | N.Y. App. Div. | 1917
When a lease was made, $1,000 was deposited “as security for the faithful performance of the terms, covenants and conditions ” in the lease, with the agreement that it should be kept by the landlord as liquidated damages upon the happening of either of two events: (1) if the tenant surrendered the premises, or (2) if the tenant “ disposes thereof prior to the expiration of this lease.” The tenant was dispossessed for non-performance. By the strict reading of the lease, the landlord was not entitled to keep the money, and this court so decided upon an appeal from a judgment for the plaintiff in an action to recover the deposit. (177 App. Div. 760.) But it was also decided that the defendant could show that the clause, “disposes thereof prior to the expiration of this lease,” was a clerical error in drawing the lease and hence not in accordance with the agreement, which defendant asserts required the reading “or dispossessed there from prior to the execution of the lease. ” Defendant tendered testimony of Hartman, who drew the lease, concerning a conversation with the lessee’s father, and the father also was questioned concerning a conversation with Hartman and to hearing his dictation of the lease. The probable intention was to show that the agreement which Hartman undertook to dictate to the stenographer was in accord with defendant’s .present contention, and that Hartman so dictated it, but that error resulted. The evidence was excluded and the ruling was sustained by this court, as it did not appear that the lessee’s father had authority to represent her either in making the
Jenks, P. J., Stapleton, Rich and Blackmar, JJ., concurred.
Judgment reversed on reargument and new trial granted, without costs of this appeal to either party.