21 Misc. 477 | N.Y. App. Term. | 1897
The. tenant was dispossessed for nonpayment of rent. The landlord’s petition alleged an indebtedness of $35.47,-for rent due April 10, 1897, demanded on or about that date, and again on May 10, 1897; an indebtedness in excess of the sum of $39.53, for rent due May 10, 1897, demanded on that date; an indebtedness of $374.34, due as rent on April 10, 1897, for the use of electric light, demanded on that date and again on May id, 1897; and an indebtedness of $8.87, as rent due on May 10, 1897, and demanded on that date.
The tenant’s answer denied that on- April 17th there was due a sum in excess of $39.53 for rent, or that there is any sum due for rent, sets up a tender of $34.58 on May 13, 1897, as being all the rent then due, and that the landlord refused to receive that sum. - -
As to the rent due on April 17, 1897, amounting to $35.47, it . appears that a check, given by the tenant for that amount was refused payment' at the bank, and that when, on May 10, 1897, a demand of that rent was made, -the tenant offered to pay it, if the check was surrendered.
Upon the trial, the tenant offered to pay $34.58 of the sum demanded and refused to pay more for the reason already given. He thus remained in default for rent conceded to be due and for which demand had been made, and the landlord was entitled to a warrant. While a demand of the rent due is necessary to uphold these proceedings (Code, § 2231; People ex rel. Simpson v. Platt, 43 Barb. 116; Wolcott v. Schenk, 16 How. Pr. 449), it is not essential that the demand should be of the exact amount due. “A tenant has no right to retain possession, when he confesses, or when it is proved, that he is in default in the payment of any part of his rent. * * * It is idle to argue that the tenant is not in default until the landlord has demanded the exact sum that is due. He is in default if, when demand is made, he does not pay what is due, whether it be the sum that the landlord demands or less or more.” Durant Land Imp. Co. v. East Side Elect. L. Co., 15 Daly, 337. By the last expression the court undoubtedly meant that, though the landlord demanded less than was due and the tenant paid the amount demanded, he remained in arrear for the balance and could be put in default again by a new demand of the residue. No precept can issue if the tenant pays what is demanded, though the demand be for less than what is due. It may be a question whether he is in
The effect of the decisions of the court of last resort has undoubtedly been to relieve the summary proceedings of many possible technicalities. Since the justice’s judgment therein 'is- not binding upon the parties in any subsequent litigation as to the amount of rent due, the proceeding will not fail for want of demand for the exact amount due. It is enough to show that the demand set out in the petition has been made and that when so made the rent demanded was either the whole or a part of what was due.
We do not overlook the embarrassment which may result from the inconclusiveness of the jiistice’s finding as': to the amount of. rent due, when it comes to question of payment or security to stay
Final order affirmed, with costs.
McAdam and Bischoff, JJ., concur.
Final order affirmed, with costs.