157 N.Y.S. 1042 | N.Y. App. Term. | 1916
Lead Opinion
The plaintiff has recovered a judgment for one month’s rent payable in advance on March 15, 1915. The complaint alleges that on March nineteenth a final order was duly made awarding possession of
In my opinion, however, the trial justice erred in dismissing the counterclaim without prejudice. The defendants have concededly deposited $500 under the lease and the plaintiff now holds that sum. The lease contains no covenant on the defendants’ part to pay
It follows that the defendants are entitled to judgment on the counterclaim. Judgment should be reversed, with $30 costs, and judgment ordered for the defendants in the sum of $250, with costs.
Dissenting Opinion
(dissenting). Action for one month’s rent, payable in advance, due March 15, 1915. The answer besides denials set up a counterclaim for the return of $500 deposit made to secure the performance of defendants’ covenants. The motion to dismiss the counterclaim was granted without prejudice by the court. The answer also pleaded that the plaintiff “ ousted the defendants from the said premises and took possession thereof and informed and instructed the undertenants not to pay any rent to the defendants herein * * * and that on * * * 10th day of March, 1915, the defendants have surrendered possession of said premises to the plaintiff and the plaintiff remained and still remains in possession thereof.”
The lease was made January 13, 1914, for three years at a rental of $250 a month, payable on the fifteenth of each month, and the lease recites: “ It being distinctly understood and agreed that time is of the essence of this contract.”
In addition the lease provided as follows: “ The party of the second part has this day deposited with the party of the first part the sum of Five hundred ($500) dollars, as security for the faithful performance of all 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 is dispossessed therefrom prior to the expiration of this lease, then in that event the said sum of Five hundred ($500) dollars shall belong to the party of the first part as liquidated and stipulated damages, and that the parties hereto 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 any breach or violation hereunder. If, however, all terms, covenants and conditions are fully complied
At the time of the leasing the Christopher Pitkin Company was the owner of the premises, but in January, 1915, it deeded by a full covenant and warranty deed the premises to the plaintiff together with ‘ ‘ all its right, title and interest in and to the within lease * * * and the security thereunder.”
The plaintiff put in evidence the deed to her and the assignment of the lease, and testified that she demanded rent of the defendant Morris Feldman on the evening of the fifteenth of March, when the defendant was- on the street not very far from his house, and that she did not go to the house until she went with the marshal on the nineteenth day of March,' when the marshal was executing a warrant of dispossess, and rested. It appears that Max Feldman, one of the defendants, died subsequently to the leasing of the premises. The defendant on his part testified that about eight days after the plaintiff acquired title to the house she came to see him in his room in the house and stated “ she told me that she comes for the house ” and “ she said I should transfer the house and the lease.” The defendant informed her that if she would give him the $100 provided for in the lease he would “ transfer the lease.” to her (the wording of the lease is not clear, but it appears that upon fifteen days’ notice the lease might be canceled by a payment of $100 to the tenant). It further appears from the testimony of defendant and his witnesses, that before the dispossess proceedings plaintiff directed the subtenants to pay her the rent, and that thereafter they refused to pay it to the defendant. The testimony in this regard is not as clear as might be desired, but it must he borne in mind that the witnesses were not very
Upon the retrial the questions raised by the counterclaim for the deposit will arise, so that they must be considered here. In the lease at bar, it appears that there is no provision whereby the covenants survive the termination of the lease by dispossess proceedings. In consequence, the damages at the time of the dispossess are easily and exactly ascertainable, and hence the retention of the deposit by the plaintiff is by way of a penalty and not liquidated damage. Caesar v. Rubinson, 174 N. Y. 492; Feinsot v. Burstein, 78 Misc. Rep. 259, and cases there cited; 161 App. Div. 651. The case of Feyer v. Reiss, 154 App. Div. 272, is not contra because in that case the court expressly found that ‘ ‘ the proceedings for dispossession did not affect the covenants under which the defendants alleged the right of retention of the deposit as liquidated damages ” and it does not appear but that the covenants to pay rent and make repairs survived the dispossess proceedings. Judgment should therefore be allowed on the counterclaim less the amount which
Order reversed, judgment vacated and a new trial ordered, with thirty dollars costs to appellant to abide the event.
Judgment reversed, with costs.
Concurrence Opinion
(concurring). I concur in the result reached by Mr. Justice Lehman, but I believe that the provision was one for a penalty because since there was no' covenant to pay which survived summary proceedings, I think that the contingency provided against was one in which no damages could accrue. See Caesar V. Rubinson, 174 N. Y. 492; Feyer v. Reiss, 154 App. Div. 272.
