Opinion
November, 1914.
Lewis F. Glaser, for appellant.
Robert C. Moore, for respondent.
The plaintiff's complaint was dismissed at the close of its case upon motion of defendant's counsel. The facts shown by the plaintiff must, therefore, be taken as true. The parties herein entered into a written lease, by the terms of which defendant leased an apartment for the term of one year from October 1, 1912, the rent to be paid monthly in advance, at the rate of $780 per year. The lease contained a clause to the effect that the letting and hiring should be deemed extended and renewed for the further term of one year from the expiration of the first term, unless either party, on or before June first next, ensuing, after the commencement of the term, gave notice to the other by registered letter addressed "if to the tenant at the premises, or, if by the tenant, to the landlord's agents as above, of an intention to surrender or have possession of the premises as the case may be, on the 1st day of the following October." The lease also contained a clause that upon default in any of the covenants, or if the premises became vacant by the voluntary removal of the tenant, the landlord might re-enter said premises and relet the same, the tenant obligating herself to pay the landlord "such other expenses as he may incur in putting the premises in good order and condition, and to pay each month the difference between the rent reserved and the amount of rents collected and received from the demised premises for such month or months during the residue of the term herein provided remaining after taking possession by the landlord." The testimony shows that the tenant failed to give the notice provided for, and that she voluntarily abandoned the premises in the latter part of September, 1913. The plaintiff thereupon entered upon the premises and claims that it expended the sum of $108 in renovating and repairing the same suitable for a new tenant, and then relet the premises from October 1, 1913, for the term of one year at a yearly rental of $720, being $60 less than the amount the defendant agreed to pay in her lease. This action was begun in November, 1913. The action was brought to recover the sum of $60 for deficiency in the yearly rental, and $108 for repairs. Upon the trial plaintiff showed that it had relet the premises for one year for $720 as aforesaid, and it offered testimony tending to show that it had expended said sum of $108 for necessary repairs, before the new tenant took possession. This offered testimony was excluded, upon objection made by defendant's attorney. The court below dismissed the complaint saying, "the plaintiff offered no proof whatever that rent was unpaid or of its efforts to rent the premises. The mere fact that it rented them for a less amount does not entitle the plaintiff to recover damages. Under the clause of the lease they were bound to rent them at the best price possible." The dismissal was error. It has repeatedly been held that a clause in a lease similar to the one first quoted is an agreement that the lease should be automatically renewed unless the notice provided for therein was given. Hopkins Realty Co. v. Kirschbaum, 84 Misc. 51. The defendant, by failing to give such notice, became liable for a second year's rent. The landlord had a right to permit the premises to remain unoccupied and hold the tenant for the monthly rent reserved in the lease, or to relet the premises and hold the defendant for the deficiency for each month's rent. At the time this action was commenced the tenant's obligation to pay rent for the month of October only was due, and the difference between the rent reserved in the lease, and the amount of rent received by the landlord under the reletting, was but $5 for that month; and for this sum, as rental deficiency alone, a cause of action had accrued. This would not apply, however, to the cost of repairs; the defendant was liable, under her lease, for such sum as was necessary to put the premises in suitable condition for a new tenant, and plaintiff should have been allowed to prove the expense of so doing.
Present: SEABURY, BIJUR and COHALAN, JJ.
Judgment reversed, new trial ordered, with costs to appellant to abide event.