Opinion
November 9, 1942.
Action to recover the amounts unpaid under a lease agreement. Resettled order of the County Court, Suffolk County, and the judgment entered thereon, affirming a judgment of the Justice's Court of the town of Babylon in favor of defendant, reversed on the law, with costs, the judgment of the Justice's Court vacated, and judgment directed in favor of the plaintiff as in the complaint prayed for and dismissing the counterclaim, with costs. All findings of fact are approved. The lessee was dispossessed for nonpayment of rent in the tenth month of the twelve-month lease term. Paragraph "Tenth" of the lease agreement provides that upon re-entry the lessor may at its option re-let the premises as agent of the lessee; and, further, that whether or not the lessor has re-let the premises, the lessee will remain liable for the rent. The trial and the appellate courts have held that in the absence of proof by the lessor of an honest attempt to re-let the premises there can be no recovery. We hold that the burden was on the defendant-tenant to show failure on the part of the landlord to take reasonable steps to minimize the damages and not on the landlord to show affirmatively as a part of its case that a new tenant was sought and not found. We do not decide whether or not such a defense, if pleaded, would be sufficient in law, in view of the language of the agreement in suit. Moreover, the return of the Justice of the Peace shows that the landlord had not been able to re-let the premises. Lazansky, P.J., Carswell, Johnston and Adel, JJ., concur; Close, J., concurs in result.