Schwartz v. Ribaudo

Appellate Terms of the Supreme Court of New York

Schwartz v. Ribaudo

110 N.Y.S. 352

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 29, 1908

StatusPublished

This text of 110 N.Y.S. 352 (Schwartz v. Ribaudo) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwartz v. Ribaudo, 110 N.Y.S. 352 (N.Y. Ct. App. 1908).

Pincite

Opinions

McCALL, J.

The action was one brought to recover rent for a stated period, to wit, for the month of December, 1905. Through summary proceedings instituted by the plaintiffs, appellants herein, the original term as fixed in the contract of lease was curtailed, and when the precept was issued the lease then became fulfilled so far as payment of rent was concerned. Chaude v. Shepard, 122 N. Y. 397, 25 [353]*353N. E. 358. No possible obligation could be imposed upon defendant (respondent) as to payment of future rent, and December, 1905. necessarily became the last month of the term; and, conceding the proposition of the survival of the covenant governing the deposit, it nowise affects the last assertion as a proposition of law. The wording of that covenant as to the purposes to which this sum must be devoted, it seems to me, is specific and unambiguous, and it is therein declared that one-half of the same is to be used in paying the rent of the last month of the term; and it would seem that is the only use for which it can be employed. As has been heretofore stated, the action was for the December rent, and, as demonstrated, this month was by plaintiffs’ (appellants’) procedure made the last month of the term, it necessarily follows that, being possessed of the fund to liquidate this claimed indebtedness, they should have applied it to that end.

As to the rulings of the trial justice in excluding evidence of asserted necessary repairs on the part of the landlord, I think he was clearly correct. If the question before the court had been the disposition of the entire fund on deposit, a different question would have presented itself; but as the proposition was merely for the rent due for the specific month, and as the fund to pay same was in possession of the landlord and must be devoted to that purpose, and was not subject to impairment or depletion of any kind, the rulings were sound, and the conclusion reached just, and should be affirmed.

Judgment affirmed, with costs.

FORD, J., concurs.

Free access — add to your briefcase to read the full text and ask questions with AI

McCALL, J.

The action was one brought to recover rent for a stated period, to wit, for the month of December, 1905. Through summary proceedings instituted by the plaintiffs, appellants herein, the original term as fixed in the contract of lease was curtailed, and when the precept was issued the lease then became fulfilled so far as payment of rent was concerned. Chaude v. Shepard, 122 N. Y. 397, 25 [353]*353N. E. 358. No possible obligation could be imposed upon defendant (respondent) as to payment of future rent, and December, 1905. necessarily became the last month of the term; and, conceding the proposition of the survival of the covenant governing the deposit, it nowise affects the last assertion as a proposition of law. The wording of that covenant as to the purposes to which this sum must be devoted, it seems to me, is specific and unambiguous, and it is therein declared that one-half of the same is to be used in paying the rent of the last month of the term; and it would seem that is the only use for which it can be employed. As has been heretofore stated, the action was for the December rent, and, as demonstrated, this month was by plaintiffs’ (appellants’) procedure made the last month of the term, it necessarily follows that, being possessed of the fund to liquidate this claimed indebtedness, they should have applied it to that end.

As to the rulings of the trial justice in excluding evidence of asserted necessary repairs on the part of the landlord, I think he was clearly correct. If the question before the court had been the disposition of the entire fund on deposit, a different question would have presented itself; but as the proposition was merely for the rent due for the specific month, and as the fund to pay same was in possession of the landlord and must be devoted to that purpose, and was not subject to impairment or depletion of any kind, the rulings were sound, and the conclusion reached just, and should be affirmed.

Judgment affirmed, with costs.

FORD, J., concurs.

Cite This Page — Counsel Stack

Bluebook (online)

110 N.Y.S. 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-ribaudo-nyappterm-1908.

Opinions

Related

Cite This Page — Counsel Stack