Mann v. Taylor — 258 A.D. 461

Majority

p. 461

Mary E. Mann, Respondent, v. Quintard Taylor and Marjorie Taylor, Appellants.

Second Department,

January 22, 1940.

Harold L. Haskin, for the appellants.

C. H. Tunnicliffe Jones, for the respondent.

Action on a written lease to recover unpaid rent. The essential facts were undisputed. Whether or not there was an acceptance of a surrender of the premises was at best, so far as the appellants were concerned, a question of fact for the jury. (Levitt v. Zindler, 136 App. Div. 695 ; Tootle Theatre Co. v. Shubert Theatrical Co., 175 id. 530.) The evidence was ample to justify a finding that there had been no acceptance. It may well be that as a matter of law there was no acceptance.

The provisions respecting the deposit of $450 did not constitute that sum liquidated damages. The real damages in the event of a breach could be readily ascertained and computed. The deposit, therefore, of that sum was merely as security. (Emsheimer v. Thorner, 83 Misc. 432 ; Caesar v. Rubinson, 174 N. Y. 492 ; Stimpson v. Minsker Realty Co., 177 App. Div. 536 .)

The judgment for the plaintiff should be affirmed, with costs.

Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.

Judgment of the County Court of Nassau county unanimously affirmed, with costs.

Cases cited

Emsheimer v. Thorner 83 Misc. 432 N.Y. App. Term p. 461
Caesar v. Rubinson 174 N. Y. 492 N.Y. 1903-04-28 p. 461