Opinion
January, 1936.
Action to recover $1,750 damages, an amount equal to ten months' rent under a written lease. Judgment of the County Court of Suffolk county in favor of defendant, entered upon the verdict of a jury, reversed on the law, with costs, and judgment directed in favor of the plaintiff against the defendant dismissing the counterclaim on the merits and for $175, and interest thereon from October 1, 1934, with costs. Notwithstanding the presence in the complaint of certain surplus allegations, that pleading is sufficient to permit the recovery of $175, being the month's rent falling due to the plaintiff from the defendant, under the lease, on October 1, 1934. The cause of action alleged, properly read, is not to recover damages for breach of the lease caused by the defendant's conduct resulting in the revocation of the liquor tax certificate, which damages it is not entitled to recover. ( Hermitage Co. v. Levine, 248 N.Y. 333.) The doctrine of anticipatory breach of contract does not apply herein. (See Ga Nun v. Palmer, 202 N.Y. 483, 493, and cases cited.) Disregarding such surplus allegations, a valid recovery of the said month's rent may be had. At the close of the case there was no proof to sustain the counterclaim to recover the amount of $500 for the security deposited with plaintiff's assignor by defendant; nor was there any proof tending to sustain the defense of surrender and acceptance. Defendant actually occupied the demised premises until October 12, 1934, when he vacated them. Young, Carswell, Davis, Adel and Taylor, JJ., concur.