Webel v. Clark

29 Misc. 329 | N.Y. App. Term. | 1899

MacLean, J.

One Maggi leased the premises 35 West Forty-third street from the defendant for five years from and after October 1, 1898, at $1,200 per annum, to be paid in equal monthly payments in advance on the first of each and every month. In consideration of the letting and of one dollar, the defendant, under seal, covenanted and agreed that if at any time Maggi made default in the payment of the rent and the performance of the covenants in the lease, he would pay the rent and all damages “ without requiring any notice of any such default from the party of the first part,” the plaintiff. Maggi remained until on or about the twentieth day of February, when he wrote the plaintiff that he was sorry he had to close the store, asked him to do his best to let it soon, and sent the keys by one Kellette, whom he had left in the place as watchman. Maggi paid no rent for the first three months of 1899. Action No. 2 is brought to recover the rent due on the first days of January and February; action No. 1, for the rental due on the 1st day of March, 1899. As his chief defense to both actions, the defendant pleaded that he had received no notice, of the alleged default of Maggi, that accordingly no opportunity had been given him to protect his rights in the premises, and the plaintiff had retaken possession of the premises without any notice to the defendant, and assumed control thereof, discharging him, the defendant, from all liability •under the alleged covenants.

It may be the fact in some States, as appears by a citation for the defendant from Leonard v. Jones, 92 Ind. 240, “ that sureties are favorites of the law,” but in this State “ the weight of authority is altogether in favor of construing guarantees by rules at least •as favorable to the creditor as those which courts apply to other written contracts, irrespective of the consideration that the guarantor is a surety.” Denio, J., in Gates v. McKee, 13 N. Y. 232. Moreover, the defendant, though called a guarantor, had made ■an agreement for himself and expressly waived the requirement of notice.

The defendant also set up other defenses, e. g., in action No. 1 that the plaintiff had accepted a surrender of the premises, and in action No. 2 that they had been rendered untenantable by fire for a portion of the term, without any fault of the tenant Maggi. The value of these defenses rested upon questions of fact, wherein the evidence relating to which, as the justice found, was decidedly in favor of the plaintiff. The judgment should be affirmed.

Freedman, P. J., and Leventritt, J., concur.

Judgment affirmed, with costs.