Rosenquest v. Canary — 72 N.Y. St. Rep. 422

Majority

p. 422

J. Wesley Rosenquest et al., Resp’ts, v. Thomas Canary et al., App’lts.

(New York Common Pleas, General Term,

Filed December 27, 1895.)

Headnote

Leases—Deposit as security.

Where, under a lease, which provides that a deposit as security for observance by the tenants of the conditions, should be applied to the rent for the last two months of the term, in case the tenants had up to that time fully performed their obligations, but to be forfeited as liquidated damages in case of breach of a condition, by failure to pay rent for a preceding month, the tenants canwit have the deposit applied on the rent defaulted, but may be dispossessed for the default.

p. 423

Appeal from a j udgment in favor of plaintiffs.

Howe & Hummel, for app’lt; Yanderpoel, Cuming & Goodwin, for resp’ts.

—The covenant in the lease, providing for the disposal of the sum paid as security for the observance by the tenants of the conditions, is very clear in its terms, and is open to but one construction. This is that the deposit was applicable to the rent for the' last two months of the term only, and then upon condition that the tenants, up to that time, had fully performed their obligations. By failing to pay rent for a preceding month, one condition was broken, and according to the express .agreement, the deposit was forfeited as liquidated damages. The claim that this deposit should have been applied upon the rent defaulted cannot be upheld under the terms of the contract, and for such default the appellants were rightfully dispossessed.

Final ordgr jffirmed, with costs.