189 A.D. 608 | N.Y. App. Div. | 1919
Lead Opinion
The material facts are stated in the opinion of Mr. Justice Mebrell, but I am unable to agree with his conclusion that the plaintiff’s motion for judgment on the pleadings was properly granted.
If the order stands, it necessarily follows that the plaintiff will be entitled to enter judgment thereon for the relief demanded in the complaint which is not only for the interest but for a repayment of the money deposited with the defendants’ intestate.as security for the payment of the rent and for reimbursement for any expenses or damage incurred or suffered by the landlord through the failure of the tenant to keep and perform each and every of the conditions, covenants and agreements on his part contained in the lease. It is well settled that the plaintiff in an action is not entitled to have a motion by him for a judgment on the pleadings granted, unless on the pleadings he is entitled to judgment for all the relief he demands, for necessarily such a judgment
Clarke, P. J., Dowling and Page, JJ., concurred; Merrell, J., dissented.
Dissenting Opinion
Defendants have appealed from a determination of the Appellate Term of the Supreme Court, First Department, which unanimously affirmed an order of the City Court of the City of New York granting plaintiff’s motion for judgment on the pleadings. The pleadings consisted of plaintiff’s complaint and the demurrer of the defendants thereto.
The action was brought to recover the sum of $1,833.33 together with interest on $3,666.66 at the rate of five per cent per annum from December 15, 1913, less interest paid on account. According to the allegations of the complaint the plaintiff leased of one Robert S. Stedman, defendants’ intestate, on December 11, 1913, certain premises on West One Hundred and Forty-fifth street in the borough of Manhattan, for the. term beginning December 15, 1913, and terminating December 14, 1918, a period of five years. As security for the payment of the rentals agreed to be paid by the plaintiff to the defendants’ intestate for said premises the plaintiff deposited with the said lessor the sum of $3,666.66 under the following conditions, as specified in the lease:
“ 18. The party of the second part hereby deposits with the party of the first part the sum of Three thousand six hundred and Sixty-six and 66 /100 ($3666.66) Dollars, receipt whereof is hereby acknowledged, to be held and retained by the party of the first part as and for security for the payment of the rent agreed to be paid hereunder, and for the reimbursement of the party of the first part for any expenses -or damage incurred or suffered because of the failure of the party of the second part to keep and perform each and every of the conditions, covenants and agreements herein agreed by him to be kept and performed during the entire term hereby leased; and the said party of the first part, provided the party of the*612 second part has in all respects complied with the terms and conditions of this agreement, will apply the said sum of Three thousand Six Hundred and Sixty-six and 66/100 ($3,666.66) Dollars on .account of the rent for the last two (2) months of the said term, and agrees further to .pay mnto the said party of the second part the sum of five per cent (5%) interest per annum on the said deposit during the term of this lease, payable on December 15th of each year of said term.”
The complaint further alleges that the plaintiff has duly complied with all the terms and conditions in said lease contained on his part to be performed, except such conditions the performance of which had been waived by the said lessor and by his said personal representatives after his death, and such of the conditions performance of which was made impossible by the said intestate and by his said personal representatives, and except that certain violations of the tenement house department of the city of New York, the removal of which would cost about fifty dollars, were not removed by the plaintiff.
The complaint further alleges that the lessor and his personal representatives, the defendants herein, failed to apply the said sum of $3,666.66 on account of the rent for the last two months of the term of the lease, but applied only one-half thereof for one of said last two months of the term.
The complaint further alleges that the defendants refused to repay to the plaintiff the said sum of $1,833.33, and that the lessor and the defendants have failed to pay the .interest on the said sum of $3,666.66 at five per cent according to said agreement in the lease, except for two years of said term.
To said complaint the defendants demurred upon the ground that it appeared upon the face of the complaint that the complaint did not state facts sufficient to constitute a cause of action.
Cross motions were made by both the plaintiff and the defendants for judgment "upon said pleadings. The motion of the defendants was denied, and that of the plaintiff granted, and judgment has been ordered for the .plaintiff, together with ten dollars costs.
The appellants contend that such determination was improper and that the complaint did not state a cause of
Robert S. Stedman, defendants’ intestate, died on or about April 3, 1918, and it is the contention of the defendants that immediately thereupon title to the real estate in question rested in the heirs at law of said decedent, and that the moneys in question which had been deposited by the plaintiff with the decedent were in effect rent for said real estate and did not pass to the administrators, but descended with the real estate to the decedent’s heirs at law.
It is also claimed by the defendants that the complaint fails to show due performance by plaintiff of the conditions mentioned in the lease. In this respect the defendants seem to base their contention upon the allegation contained in the-complaint that there were certain violations of the tenement-house department of the city of New York, costing about fifty dollars, which had not been removed by the plaintiff, and that it does not appear from the complaint that plaintiff, the lessee, has paid the rent for the last two months of the-term.
And, finally, the defendants attack the order appealed from as improperly awarding costs to the plaintiff and against the defendants in violation of the provisions of sections 1835 and 1836 of the Code of Civil Procedure.
Considering appellants’ points in the order named, it seems to me that the covenant contained in the lease respecting the deposit of $3,666.66 did not run with the land and was a personal agreement between the plaintiff and the decedent for which his estate is responsible. At the time the deposit was made it was not in payment of rent, but strictly as security for the performance on the plaintiff’s part of conditions by him to be performed under the terms of the lease. The moneys thus deposited were in the possession of the decedent at the time of his death. At that time they were not applicable as rent and might never be so applied. They certainly would not be applied as. rent except upon the faithful performance by the tenant of the conditions of his lease. For example, the moneys thus held as security would never be applied as rent in case the tenant, by some act of his, violated the terms
The cases of Fallert Brewing Co., Ltd., v. Blass (119 App. Div. 53) and Mauro v. Alvino (90 Misc. Rep. 328) seem in principle to uphold the contention of the respondent herein. In the former case, Mr. Justice Rich, writing for the court, said: “ The learned counsel for appellant contends, however, that the covenant to return the money ran with the land, and defendants’ title was taken subject to the agreement contained in the lease. In this we think he is mistaken. The covenant for the return of the money was a personal agreement between the original lessor and the lessee, and while an action might be maintained against the original lessor to recover the difference between the amount deposited with her and the sum owing at the time the sub-lessee was dispossessed, the covenant to return was collateral.”
And in Mauro v. Alvino (supra) it was said: “ The obligation to return the deposit does not run with the land, consequently the grantee of the land, subject to the lease, cannot be held liable for its return. Fallert Brewing Co. v. Blass, 119 App. Div. 53. The defendants are, therefore, the proper parties to this action.”
The appellants seek to distinguish these cases upon the ground that the covenant in the leases there under consideration provided that the security at the expiration of the demised term should be returned to the tenant, whereas in the present case the lease provides that in case of faithful performance by the tenant the security deposited by him was to be applied in payment of the rent for the last two months of the term of the lease. It seems to me that in principle the defendants do not distinguish the two cases cited from the condition prevailing in the present case. The distinction made is in form rather than in substance, and merely goes to the disposition of the security at the expiration of the lease. In the present case the moneys put up as security were not to be returned, but were to be applied in payment of the last rent due for the term. Under both circumstances the security thus held is a personal one, unattached to the premises leased. Unquestionably, after the decease of the lessor the real estate
The complaint alleges full performance of the conditions of the lease by the plaintiff, except in a single minor particular, and it also alleges the failure of the administrators to keep the agreement of their intestate and apply $1,833.33 of such deposit in payment of the final month’s rent of the leased period. Under such circumstances it seems to me that the complaint states a valid cause of action against the defendants.
As to the contention of the appellants that the complaint does not show full performance on plaintiff’s part, I think their position in that respect is without merit. While it does not specifically appear in the complaint that the plaintiff has
As to the absence of an allegation that the entire rent has been paid by plaintiff, the complaint does allege that the administrators have applied $1,833.33 toward the payment of one month’s rent of the final two months of the term. It is to be assumed that such application was made by the administrators in a proper manner, and that .the remainder of the deposit, to wit, the sum of $1,833.33, still remains in their hands to be applied or paid over according to the rights of the interested parties as fixed in the lease. As the heirs are not parties to this action, the decision thereof will not be res adjudicata as to them. Were this an action against the plaintiff for rent, plaintiff would have the right to set up the fact of the deposit and to interplead the defendants, administrators, for the purpose of compelling them to properly apply the surplus in their hands toward payment of rent. So far as the administrators are concerned, the money does not belong to them, or to the next of ldn on distribution. It may be possible that such sum, so in the hands of the administrators is subject to administration by them and, in default of sufficient personal property, might, in certain events, be applied to the payment of debts and funeral expenses. The administrators, however, should take advantage of these facts by answer, and if it is the claim of the administrators that the heirs lay claim to the rent, the administrators should seek to bring the heirs in as parties in order that they may be bound by the judgment in this action. As the case stands, however, the administrators cannot take advantage of the fact that there is no specific allegation contained in the complaint to the effect that the plaintiff has paid the last two months’ rent to the heirs. That concerns the heirs at law and not the
Moreover, plaintiff is entitled to recover under his complaint the interest agreed to be paid by decedent upon the deposit at five per cent per annum payable annually on December fifteenth in each year of said term, and all of which interest, with the exception of the interest for two years of said period, remains in arrears and unpaid. Thé demurrer admits the obligation to pay such interest and as to that the complaint states a good cause of action, and this being so the demurrer was properly overruled.
The awarding of ten dollars costs on granting plaintiff’s motion was not, I think, contrary to the provisions of sections 1835 and 1836 of the Code of Civil Procedure. Those sections seem to apply to the award of costs in a final judgment in an action, and do not relate to the award of interlocutory motion costs.
The defendants have stipulated that upon affirmance of the order appealed from herein, judgment absolute may be rendered against them.
The determination appealed from should be affirmed, and judgment in favor of plaintiff and against defendants should be directed in accordance -with the order of the City Court.
Determination of the Appellate Term and order of the City Court reversed, with ten dollars cost and disbursements in this court and in the Appellate Term, and plaintiff’s motion denied, with ten dollars costs.