Pakas v. Shinberg

49 Misc. 238, 97 N.Y.S. 209

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1906
• Status: Published

Opinions

Scott, J.

I am of opinion that the plaintiff can recover in this action no more than the sum which was tendered by ■defendants and paid into court. The lease, in the first place, provided for a yearly rental of $2,500 per annum, payable monthly. In a later clause, it was agreed that the owner should allow the tenant the sum of $150 per year from, the afore-mentioned rent for repairs, lighting the halls and keeping the halls and stairs cleaned at all times which the tenant hereby agrees to do.” It is further provided : “ said sum to be deducted in equal monthly parts ■from the rent when due.” This provision had the effect of reducing the amount to be paid each month by one-twelfth •of $150, for it was to be allowed from, the rent and to be deducted therefrom when due. As the clause was worded, the amount allowed to the tenant was not to be treated as a •claim against the landlord independent of the rent, but as a monthly reduction of the amount to be paid. The deduction was not made to depend upon whether or not the tenant •did actually light and clean the halls and stairs, but- was positively agreed upon, in consideration of which the tenant agreed to do certain things. If, as the plaintiff claims, the tenant failed to live up to his agreement in these particulars the landlord’s remedy was to sue for damages.

The judgment should be reduced to the sum of $391.66, less the defendants’ costs in the court below, as provided for in section 148 of the Municipal Court Act; and, as so modi:fied, should be affirmed, with costs to the appellants.

Dowling, J., concurs.