Yannuzzi v. Grape

46 Misc. 559, 92 N.Y.S. 819

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1905
• Status: Published

Opinions

MacLean, J.

In October, 1903, the plaintiff went into possession of premises in Fulton street, for a term of five years, under an instrument wherein he covenanted, among other things to pay the defendant, lessor, monthly in advance, rent at the rate of $1,200 the first year and $1,500 the years thereafter; that if any rent should be due and unpaid, or if default should be made in any of the covenants, it should be lawful for the lessor, herein the defendant, to re-enter the premises and remove all persons therefrom; that in case of default in any of the covenante the landlord might “ resume possession of the premises and rent the same for the remainder of the term at the best rent he can obtain for account of the tenant who will make good any deficiency.” The plaintiff, then lessee, further agreed to deposit and did deposit with the defendant $1,000 to be held by him “ during the continuance of this lease as security for the faithful payment of the rents and the performance of the covenants contained in this lease, but the same shall not be deemed a payment of rent under this lease excepting the last month’s rent which may become due.” On June 16, 1904, rent being unpaid and $400 being due therefor, including that for the month of June, the plaintiff was removed from and the defendant recovered possession of the premises under a warrant issued in statutory summary proceedings. The plaintiff brought this action for the recovery of the deposit. He has recovered judgment therefor less the arrears, that is for $1,000 less $400 besides some interest; under a construction of section 2253, Code of Civil Procedure. Under this section of statute the issuing of the warrant for removal of the plaintiff annulled the relation, between the parties, of landlord and tenant, and cancelled the agreement for the use of the premises, i. e., the contract of letting or lease. " Whether in the absence of provision (e. g. as in Hackett v. Richards, 13 N. Y. 138) for resumption of possession other than by the ancient method of reentry “ coeval with the common law,” resort to summary proceedings might effect the covenant to pay deficiency, arising from re-letting for account of the plaintiff, formerly the tenant, we are not called upon to decide, particularly as it is conceded that the defendant, whilom the landlord, has chosen to have hack again and to keep his own property. Termination of the contract of letting determined the period for which the defendant might hold the deposit as security, namely during the continuance of the lease. The plaintiff was entitled to his recovery. Fleishauer v. Bell, 44 Misc. Rep. 240.

Judgment affirmed, with costs.