348 Madison Avenue Corp. v. Marshall

Headnote

Landlord and enant ■— lease — cancellation of lease under clause providing therefor, a option of landlord, upon appointment of receivers of tenant’s property before commencement of term — liability of tenant for rent during term premises remained vacant.

348 Madison Ave. Corpn. v. Marshall, 212 App. Div. 672 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1925, which reversed an order of Special Term granting a motion to dismiss the complaint and denied said motion. The action was to recover rent. Plaintiff, as landlord, leased certain premises to defendants for a term of years. Subsequent to the execution of the lease, but before the commencement of the term, a receiver in bankruptcy was appointed for the tenant’s property, whereupon plaintiff, as landlord, duly notified defendants, as tenant, that by reason of the appointment' of such receiver plaintiff elected to and did terminate the lease in accordance with and subject to its terms. The com

plaint alleged that thereafter plaintiff endeavored to relet the leased premises but was unable to do so, and it is sought to recover the rent reserved up to the time of the commencement of this action, under a subsequent clause of the lease reading: “ In the event that this lease be 1 terminated ’ before the commencement of the term, as-above provided, the landlord may, at the landlord’s option, relet the leased premises, or any part or parts thereof, as the agent of the tenant * * *. In the event of re-entry or termination of this lease * * * the tenant shall remain liable until the time when this lease would have expired but for such termination for the equivalent of the amount of all the rent reserved herein, less the avails of re-letting * * *.”

’ The following question was certified: “ Does the first cause of action set forth in the amended complaint herein state facts sufficient to constitute a cause of action? ”