104 N.Y.S. 996 | N.Y. App. Div. | 1907
Lead Opinion
The demurrer is upon the ground that the. complaint does not state facts sufficient to constitute a cause of action, - The complaint shows that the plaintiff leased, by an instrument in writing, the mez ' zanine floor of the “ Slater Buildings ” at N.o. 11 West Forty-second street, borough of Manhattan, New York, to the defendants for a term of years, commencing on the loth day of February, 1902, and ending on-the 1st day of May, 1907, for the annual rental of $2,600 until the 1st day of May, 1905, and $3,000 thereafter, to be paid in
Of course, it is the law that an eviction by summary proceedings cancels the lease so far as it relates to the relation of landlord and tenant, and terminates the liability of the tenant to pay future rent as such. (Code Civ. Proc. § 2253; Johnson v. Oppenheim, 55 N. Y. 293; McAdam Landl. & Ten. [3d ed.] 1301; McCready v. Lindenborn, 172 N. Y. 406.) There is no statute, however, forbidding an agreement in the lease or otherwise, between the landlord and tenant, by which the tenant may obligate himself to pay damages sustained by the landlord in consequence of his failure to pay rent, even though the landlord regains possession of the premises through summary proceedings or otherwise, nor is such an agreement prohibited by public policy. ' It is entirely competent, therefore, for the parties to agree that the tenant in such event shall pay the dam- • ages sustained by the landlord, and- it is well settled that such a covenant, if made, survives the severance of the relation of landlord and tenant by the summary proceedings. (Hall v. Gould, 13 N. Y. 127; McCready v. Lindenborn, supra; Baylies v. Ingram, 84 App. Div. 360; Anzolone v. Paskusz, 96 id. 188.) Michaels v. Fishel (169 N. Y. 381) is hot opposed to this doctrine, The
"This action is brought not for rent, but for the damages caused]
It follows that the amended complaint states facts sufficient to constitute a 'cause of action and the demurrer thereto should have been overruled. The interlocutory judgment should, therefore, be reversed, with costs, and the demurrer overruled, with costs, but with leave to defendants to withdraw the demurrer and answer on payment of the costs of this appeal and of the demurrer.
Clarke and Scott, JJ., concurred ; Ingraham and Lambert, JJ., dissented. '
Dissenting Opinion
I dissent. By the execution of the warrant in the dispossess proceedings the term demised .came to an end and the relation of landlord and tenant ceased, and there could be no claim for damages against the tenant that accrued after the legal termination of the-demised term. Undoubtedly the parties could have agreed that the tenant should be liable for the rent until the landlord was able to rent the premises, but no such agreement is alleged. The tenant would also be liable for any 'direct damage springing from his failure to comply with the covenants of the lease. But the only damage that is alleged results from the failure of the landlord to rent the premises after the lease terminated, and this loss to the landlord does not at all flow from the failure of the tenant-to pay the rent prior to the termination of the lease, but arises from the act of the landlord in terminating the relation.of landlord and tenant by dispossessing the tenant. The tenant would have been liable under the lease for the rent, and the damage that the landlord sustained in virtue of non-payment would be the interest upon the amount of the rent from the time it was due until it was paid.
I think, therefore, this judgment should be affirmed.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendants to withdraw demurrer and to answer on payment of costs. ■