Mann v. Taylor

258 A.D. 461, 17 N.Y.S.2d 121, 1940 N.Y. App. Div. LEXIS 8217

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1940
• Status: Published

Opinion

Per Curiam.

Action on a written lease to recover unpaid rent. The essential facts were undisputed. Whether or not there was an acceptance of a surrender of the premises was at best, so far as the appellants were concerned, a question of fact for the jury. (Levitt v. Zindler, 136 App. Div. 695; Tootle Theatre Co. v. Shubert Theatrical Co., 175 id. 530.) The evidence was ample to justify a finding that there had been no acceptance. It may well be that as a matter of law there was no acceptance.

The provisions respecting the deposit of $450 did not constitute that sum liquidated damages. The real damages in the event of a breach could be readily ascertained and computed. The deposit, therefore, of that sum was merely as security. (Emsheimer v. Thorner, 83 Misc. 432; Caesar v. Rubinson, 174 N. Y. 492; Stimpson v. Minsker Realty Co., 177 App. Div. 536.)

The judgment for the plaintiff should be affirmed, with costs.

Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.

Judgment of the County Court of Nassau county unanimously affirmed, with costs.