Majority
p. 1131Rose SILVERSTEIN, Appellant, v. Diederich TONJES and John H. Tonjes, Respondents. (Supreme Court, Appellate Term, First Department. May 9, 1916.)
Headnote
Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Rose Silverstein against Diederich Tonjes and another. From a judgment of the Municipal Court, dismissing the complaint on motion, plaintiff appeals. Reversed1, and new trial ordered. The complaint alleged that the lease contained the following provision relating to the deposit: “Tenant also agrees to pay $791.67 on signing this lease, $291.67 of which is to pay rent up to November 1, 1912, and the balance, $500, is to be held by the landlords as security for the faithful performance of the covenants contained herein, in which event the said sum shall apply on account of rent for the month of August, 1922, and rent in full for the month, of September, 1922; otherwise, the said $500 becomes the property of the landlord as liquidated damages.”The action is to recover a deposit made by plaintiff with defendants upon the execution of a lease from defendants to plaintiff. The deposit was to insure the performance upon the part of the plaintiff of the covenants of the lease. In case of the breach of the covenants the deposit was to be considered liquidated' damages. There are many authorities upon the question raised by the appellant, but under the decision rendered in the case of Feinsot v. Burstein, 161 App. Div. 651 , 146 N. Y. Supp. 939 , we think the court should have taken the proofs offered by the plaintiff. Judgment should therefore be reversed, and a new trial ordered, with $30 costs to appellant to abide the event.