Jahmes Co. v. Propper

Appellate Division of the Supreme Court of New York

Jahmes Co. v. Propper

238 A.D. 326, 264 N.Y.S. 219, 1933 N.Y. App. Div. LEXIS 9499

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 12, 1933

StatusPublished

Cited by6 cases

This text of 238 A.D. 326 (Jahmes Co. v. Propper) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jahmes Co. v. Propper, 238 A.D. 326, 264 N.Y.S. 219, 1933 N.Y. App. Div. LEXIS 9499 (N.Y. Ct. App. 1933).

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Opinion

Sherman, J.

The second cause of action in the complaint has been held sufficient. We have reached the view that this determination is erroneous and that the order appealed from should be reversed.

The tenant here sues the landlord to recover the sum of $10,000, delivered to the landlord under an unexpired nineteen-year lease [327]*327of premises in the borough of Manhattan, to be held by the lessor for the punctual payment of the rent and performance of the covenants and agreements in the lease, by the lessee. The pleading states that there were transfers of this realty by defendants, who as landlords executed the lease, to other parties who ultimately transferred the property back into the ownership of defendants. Each owner in turn became possessed of the deposit.

It is urged that because defendants, as well as the other owners of the realty, had mingled this security with their personal funds and used the same for their own purposes, and also failed to keep the sum intact and invested in such investments as are permitted to trustees under the laws of this State, the tenant has rightfully terminated the lease and, having demanded the return of his security, is entitled to a judgment in that amount.

The language of the lease does not impose upon the landlord the duty to hold this sum intact as a trust fund or to invest it in what are termed legal investments for savings banks in this State. No provision in the lease makes the relationship between the landlord and tenant with respect to these moneys other than that of debtor and creditor. (Levinson v. Shapiro, 238 App. Div. 158.)

The covenant to repay the security deposited was personal and its breach would not justify an abandonment of the premises by the tenant. Since the lease provides that the tenant would not become entitled to assert his claim to the return of that deposit until six months after the expiration of the full term of the lease and plaintiff has shown no right to declare it at an end, the action was prematurely brought.

The order appealed from should be reversed, with twenty dollars costs and disbursements, and defendants’ motion granted to dismiss the second cause of action, with ten dollars costs.

Finch, P. J., Merrell, O'Malley and Townley, JJ., concur.

Order reversed, with twenty dollars costs and disbursements, and motion granted, with ten dollars costs.

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Sherman, J.

The second cause of action in the complaint has been held sufficient. We have reached the view that this determination is erroneous and that the order appealed from should be reversed.

The tenant here sues the landlord to recover the sum of $10,000, delivered to the landlord under an unexpired nineteen-year lease [327]*327of premises in the borough of Manhattan, to be held by the lessor for the punctual payment of the rent and performance of the covenants and agreements in the lease, by the lessee. The pleading states that there were transfers of this realty by defendants, who as landlords executed the lease, to other parties who ultimately transferred the property back into the ownership of defendants. Each owner in turn became possessed of the deposit.

It is urged that because defendants, as well as the other owners of the realty, had mingled this security with their personal funds and used the same for their own purposes, and also failed to keep the sum intact and invested in such investments as are permitted to trustees under the laws of this State, the tenant has rightfully terminated the lease and, having demanded the return of his security, is entitled to a judgment in that amount.

The language of the lease does not impose upon the landlord the duty to hold this sum intact as a trust fund or to invest it in what are termed legal investments for savings banks in this State. No provision in the lease makes the relationship between the landlord and tenant with respect to these moneys other than that of debtor and creditor. (Levinson v. Shapiro, 238 App. Div. 158.)

The covenant to repay the security deposited was personal and its breach would not justify an abandonment of the premises by the tenant. Since the lease provides that the tenant would not become entitled to assert his claim to the return of that deposit until six months after the expiration of the full term of the lease and plaintiff has shown no right to declare it at an end, the action was prematurely brought.

The order appealed from should be reversed, with twenty dollars costs and disbursements, and defendants’ motion granted to dismiss the second cause of action, with ten dollars costs.

Finch, P. J., Merrell, O'Malley and Townley, JJ., concur.

Order reversed, with twenty dollars costs and disbursements, and motion granted, with ten dollars costs.

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238 A.D. 326, 264 N.Y.S. 219, 1933 N.Y. App. Div. LEXIS 9499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jahmes-co-v-propper-nyappdiv-1933.

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