Joseph Fallert Brewing Co. v. Blass — 119 A.D. 53

Majority

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Joseph Fallert Brewing Company, Limited, Appellant, v. Carl Blass and Teresa Blass, Respondents.

Second Department,

April 19, 1907.

Headnote

Landlord and tenant — deposit by tenant as security —no' recovery thereof from grantee of landlord. .

When a deposit is made by a tenant to be retained by the landlord until the expi- \ ration of the lease, and' then to be returned less sums due for damage caused •or rent in arrears, the covenant to return "the money is personal between the ' lessor and lessee and .does' not run with the land. Hence, the assignee of "the tenant cannot recover the amount of the deposit from the grantee of the. landlord. . '

Appeal by the plaintiff, Joseph Fallert Brejving Company, .Lim-. ited, from a judgment of the Municipal Court of the city of Yew York, borough of.Brooklyn, in favor of the defendants, in an action-• brought to recover the amount of a deposit made at the time of the

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execution of a- three-year lease of premises in Wyckoff avenue, borough of Brooklyn, January 29,1903.

Amalie Fink leased to Frederick Krauss the premises No. 197 WyckofE avenue for the term of three years from February 1, 1903, by an instrument in writing, duly acknowledged and recorded in the Kings county register’s office February 13, 1903. A deposit was made pursuant to the provision in said lease that it should remain “ until .the term of the lease is ended, and then to be returned to the party of the second part, provided there is no part of the rent due to the party of the first part, and provided the premises are left in as good a condition as when first hired, reasonable wear and tear excepted; but if there be other damage done or rent be in arrears, then such arrearage of rent or expense of putting, in condition the demised premises shall be deducted from such deposit and the balance be returned to such depositor. * * * And it is further covenanted, that a breach of any of the above covenants shall work a forfeiture of tins lease and ' the deposit as liquidated damages, and that this lease is binding upon the heirs, representatives and assigns "of the parties hereto.” It was also “agreed that the party óf the second part shall not assign this lease nor sublet the demised premises or any part thereof without the written consent of the party of .the first part.” January 28, 1905, Krauss, without the written consent of the owner, assigned to Charles Schmidt all his right, title and interest under the said lease. November 1, 1905, the defendants became and still are the owners of said premises, and on the fourth of November Schmidt was dispossessed for his failure to pay forty-five dollars rent, and defendants entered into possession of the premises. Before the commencement of this action, and "after his eviction, Schmidt assigned all his rights under the lease to plaintiff, who sued to recover the one hundred and . eighty dollars, less .the said sum of forty-five dollars.-

Anson B. Cole, for the appellant.

Adolph Feldblum, for the respondents.

The only question presented is whether the action can be maintained against these defendants. There is no claim that the money deposited ever came into their possession. The learned counsel for

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appellant contends, however, that the covenant to return the money ran with the land, and defendants’ title was taken subject, to the agreement contained in the-lease. In this we think,he is mistaken. The covenant for the return of the money was a personal agreement between the original lessor and the lessee, and while an action might be maintained against the original- lessor to recover the differ-, ence between the amount deposited with her and the sum owing at the time the sub-lessee was dispossessed, the covenant to return was collateral. ■ (8 Abb. U. T. Cyc. Dig. 904.)

In Vernon v. Smith (5 Barn. & Ald. 1) Best, J., says: “ By the terms collateral covenants, which do not pass to the assigned, are meant such as are beneficial to the lessor, without regard to his con- . tinuing the owner of the estate. This principle will reconcile all the cases.” In Vyvyan v. Arthur (1 Barn. & Cress. 410) the same learned judge says : “ The general principle is, that if the performance of the covenant be beneficial to the reversioner, in respect , of ■ ■ the lessor’s demand, and to. no other person,, his assignee m'ay gue upon it; but if it be beneficial to the lessor, without regard to his continuing owher of the estate, it is .a mere collateral covenant, upon which the assignee cannot sue.” . In Bally v. Wells (3 Wilson, 25) it is said: “ There must always be a privity between the plaintiff and defendant to make the defendant liable to an action of covenant ; the covenant must respect the thing granted or demised; ■ ■ when the thing to be done, or omitted to be done, concerns the lands or estate, that is the medium’which creates the privity between ■ the plaintiff and defendant.”

We have recently held in Knutsen v. Cinque ( 113 App. Div. 677 ), a,n action to recover the' sum deposited by the tenant of a lessor who had sold and conveyed the property before the expiration of the lease, that the action was against the original lessor, and this was upon the theory that the covenant to refund was collateral and did not run with the land. The learned justice of the Municipal Court made a proper disposition of the case, and the judgment must be affirmed, with costs.

Hi-rsohberg, P. J., Woodward, Jenks and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs. •