Hyperlawhypertext legal databasebeta Security Mortg. Co. v. Thompson 121 N.Y.S. 326

← Cases

Security Mortg. Co. v. Thompson

121 N.Y.S. 326 Court N.Y. App. Term Decision date 1910-02-24 English

Contents

Majority

p. 326
(66 Misc. Rep. 151.)
SECURITY MORTG. CO. v. THOMPSON.
(Supreme Court, Appellate Term.
February 24, 1910.)

Headnote

Landlord and Tenant (§ 29[1] )—Leases—Requisites and Validity.
Though a provision in a lease, that if the tenant failed to pay the rent the landlord or his agent might re-enter and remove all persons, using such force as they deemed proper, without being liable to any criminal prosecution therefor, was illegal and void, the lease being otherwise in the ordinary form, and as an entirety for a legal purpose, was not rendered unenforceable by such clause, since it cannot be presumed that it was the intent of the parties to violate the law.
[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 29.[1] ]
Appeal from Municipal Court, Borough of Manhattan, First. District.
Action by the Security Mortgage Company against Frederick M. Thompson. From a judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued before SEABURY, GUY, and WHITNEY, JJ.
Fletcher, McCutchen & Brown, for appellant.
Robert E. Swezey, for respondent.

This is an appeal from a judgment rendered by the court in favor of defendant in an action for rent, under a written lease. The lease, among other things, provides:

“That in case of the failure to pay the rent or any part thereof, * * * or if the premises shall become vacant during the term, * * * it shall be lawful for the landlord, or the landlord’s agents or assigns, either to re-enter upon the demised premises and remove all persons therefrom, or to dispossess the tenant, * * * or to re-enter the same and use such force for the purpose as the landlord or his agents or assigns shall deem proper, without being liable to any prosecution by civil or criminal action or proceeding therefor.’’ .

It was contended on the trial by the defendant that this provision of the lease was illegal, as against public policy; that it furnished part of the consideration, and, therefore, the lease could not be enforced

p. 327
by the plaintiff, as against the defendant. The court sustained the contention of the defendant, and directed judgment in his favor.

We are of the opinion that, while the clause providing that the landlord should not be liable to any prosecution by criminal action or proceeding was illegal and void, the contract as an entirety _ was for a legal purpose and is enforceable, irrespective of the clause in question. The consideration for the lease was the rent reserved. The provision for re-entry, aside from the objectionable clause, was the ordinary provision contained in leases of this character. The defendant, haying entered into possession of the premises under the contract, was in a position to maintain his right to continued occupancy of the premises during the term of the lease. It does not appear, and cannot be presumed, that it was the intent of the parties that the law should be violated. Lorillard v. Clyde, 86 N. Y. 384 ; Shedlinsky v. Budweiser Brewing Company, 163 N. Y. 437 , 57 N. E. 620 .

The judgment is therefore reversed, and a new trial ordered, with costs to the appellant to abide the event.

Cases cited