Folger v. Raczek

167 A.D. 167, 152 N.Y.S. 1041, 1915 N.Y. App. Div. LEXIS 7469

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1915
• Status: Published

Opinion

Per Curiam:

The lease contained a clause authorizing the landlord to re-enter in case the premises should become vacant, and then to relet on behalf of the defendant and to hold the tenant for any deficiency, but this remedy was not invoked. Taking summary proceedings and dispossessing the tenant was an election to re-enter and end the relation of landlord and tenant. By this act defendant waived all claim to the deposit, except to apply it in payment of rent then due or accrued. (Caesar v. Rubinson, 174 N. Y. 492, 498.) As the parties did not agree that the sum deposited should be liquidated damages, and, beyond the November rent, no breach or further damages appear, defendant has no ground to keep the whole deposit. (Feinsot v. Burstein, 161 App. Div. 651; affd., 213 N. Y. 703.)

As plaintiff’s brief now concedes, he cannot apportion the November rent, which, being payable on the first, was already due before summary proceedings were taken. (Berg v. Kaiser, 137 App. Div. 1.) Hence, defendant rightly holds $300 for the November rent.

Upon this submission, plaintiff should be adjudged $600, with interest from June 4, 1913, to the date of entry of judgment, also interest on the $300 from June 4 to November 1, 1913, being $7.30, together with costs and disbursements.

Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Judgment for plaintiff on submission of controversy in the sum of $600, with interest from June 4, 1913, to the date of entry of judgment; also interest on $300 from June 4 to November 1, 1913, being $7.30, together with costs and disbursements.