Opinion
November, 1907.
Katz Greenberg, for plaintiff.
Wm. A. Goodhart, for defendants.
This is an action upon a covenant, contained in a lease, to recover in damages the difference between the rent reserved for the months of November and December, 1906, and the sum realized by the landlord during that time and after he had repossessed himself of the estate. The complaint sets forth the lease, its breach, the issuance of a warrant of dispossess, re-entry, subletting and the difference between the rent reserved and the rent collected since the dispossess, which the plaintiff claims the defendants agreed to pay under the terms of the lease, and for which judgment is prayed. It appears by the admissions in the pleadings and the testimony that the lease was for four years and one month, beginning August 1st, 1906, at a rental of $12,800 per year, or $1,066.66 per month, payable one-half on the 10th and one-half on the 15th of each month. Neither installment of the rent due November, 1906, was paid, and on November 21, 1906, the landlord caused a warrant to be served and dispossessed the defendants. The defendants contend that the rights of the landlord under the lease were terminated by the issuance and service of the warrant of dispossess, and set up a counterclaim demanding the return of money deposited to secure the fulfilment of the terms of the lease by the tenant. Section 2253 of the Code of Civil. Procedure provides: "The issuing of a warrant, for the removal of a tenant from demised premises, cancels the agreement for the use of the premises, if any, under which the person removed held them, and annuls accordingly the relation of landlord and tenant, except that it does not prevent a landlord from recovering, by action, any sum of money, which was, at the time when the precept was issued, payable by the terms of the agreement, as rent for the premises." It is well settled that under this statute the issuance of a warrant of dispossess terminates the lease and relieves the tenant from further liability, except for such rent as shall have accrued prior to the issuance of the warrant. Michaels v. Fishel, 64 N.Y.S. 1007; affd. 169 N.Y. 381; Roe v. Conway, 74 id. 201; McCready v. Lindenborn, 172 id. 400; Caesar v. Rubinson, 174 id. 492. This is a statutory provision which may be waived by agreement. As was stated in Michaels v. Fishel, reported below ( 64 N.Y.S. 1007), "it is entirely competent for the parties to contract with a view of preserving a liability on the part of the tenant to pay rent, or to pay deficiency arising from a failure to rent the property after dispossession by summary proceedings," and, in affirming the case ( 169 N.Y. 381), Mr. Justice Vann says: "While it was within their power to agree that the lessee should continue to pay rent after the premises had been taken away from him owing to his default, still a covenant to pay, with no right to enjoy, should be clear and unambiguous as to the event which calls it into action." In the case at bar, the lease provides that the tenants "shall take good care of the premises" during said term, "and shall at their own cost and expense make ail inside repairs of whatever nature necessary." By the 8th paragraph the parties agreed that if the premises became vacant during the term, the landlord might re-enter either by force "or otherwise," and relet the premises as agent of the tenants, receive the rent therefor, applying the same first to the payment of such expenses as he may be put to in re-entering, and then to the payment of the rent due by the terms of the lease, "the balance, if any, to be paid over to the tenants, who shall remain liable for any deficiency." Paragraph 13. "That if default be made in any of the covenants herein contained, then it shall be lawful for the said landlord to re-enter the said premises and the same to have again, repossess and enjoy." The said tenant hereby expressly waives the service of any notice in writing of intention to re-enter, as provided for in the third section of an act entitled "An act to abolish distress for rent and for other purposes," passed May 13th, 1846. Paragraph 15. In case of the default in any of the covenants or conditions, "The landlord may resume possession of the premises by force or otherwise, and the same to have again, repossess and enjoy. In case of such repossession of, if the premises became vacant, or the tenants dispossessed by summary proceedings, landlord may relet the premises for the remainder of the term for account of the tenants, who agree to make good any deficiency, including the expense of the landlord in re-entering. The tenants expressly waive all right to quit possession or terminate this lease under the statute." Paragraph 17. "The tenants have simultaneously with the execution of this lease deposited with the landlord the sum of $2,200, to be held by the landlord or his assigns as security for the rent herein reserved, and for the faithful performance by the tenants of each and every one of the covenants, conditions and agreements in the lease contained, during the entire term herein demised. * * * It is further understood and agreed that the sum so paid shall be additional security for the liability for any rent that may be accrued under this lease at the time of the said breach or violation, and also additional to the liability for any rent or sums regarded as rent that may accrue under this lease after said breach or violation, or after the expiration or earlier termination by legal proceedings, or otherwise, of this lease. * * * The said two thousand two hundred dollars ($2,200) is to be returned to the tenants at the expiration of this lease, provided the tenants shall have complied in all respects with the covenants of this lease." In my opinion a re-entry by summary proceedings is provided for under the terms of this lease, and the statute terminating further liability thereafter is expressly waived. The covenant to pay deficiency in rent accruing after such re-entry survives and entitles plaintiff to recover upon an independent cause of action for the amount of such deficiency. In such case, the general rule does not apply and the landlord may bring action upon such covenant after the issuance of a warrant in summary proceedings. Paul v. Gould, 13 N.Y. 127; Lewis v. Stafford, 24 Misc. 717, 53 N.Y.S. 801; Baldwin v. Thibadeau, 17 id. 532; Longobardi v. Yuliano, 33 Misc. 472; Lesser v. Stein, 39 id. 349; Baylies v. Ingram, 84 A.D. 360, 365; affd., 181 N.Y. 518; McCready v. Lindenborn, 172 id. 400; Anzolone v. Paskusz, 96 A.D. 188. In the case of Michaels v. Fishel, 169 N.Y. 381, cited by the defendant, the court held that the term "re-enter" in case of default with no provision as to the manner of such re-entry referred merely to the common law right of re-entry by ejectment, and the land lord having failed to avail himself of such common law remedy and having re-entered by summary proceedings, his right to the deficiency was thereby defeated. The case at bar is clearly distinguishable, not only because of express reference to summary proceedings, but also by the use of the word "otherwise." As was said in Anzolone v. Paskusz ( 96 A.D. 188), "the word `otherwise' necessarily broadened the significance of the word `re-enter' and prevents its limitation to the technical definition of the word." There was due for November and December, 1906, $2,133.32. After the defendants were dispossessed and plaintiff entered upon the premises he realized $620.69 during these months, out of which he paid $371.10 for necessary expenses, leaving a balance of $249.59 credited to defendants, and a deficiency of $1,883.73 still due, which with $56 interest makes a total of $1,939.73. As the sum of $2,200 was deposited with the plaintiff as security for the performance of the covenants of the lease during the entire term demised, it may not be set off against plaintiff's claim until the expiration of the term specified in the lease. Anzolone v. Paskusz, 96 A.D. 188. In view of the obligations imposed upon the tenants by the terms of the lease, the amount deposited does not appear to be disproportionate to the amount to be paid under the agreement, and is not, therefore, a penalty, and may be retained as security. Judgment must be entered for the plaintiff for $1,939.73 and the counterclaim dismissed.
Judgment for plaintiff.