Scott v. Montells — 50 N.Y. Super. Ct. 448

Majority

p. 448

JOHN G. SCOTT v. PEDRO MONTELLS.

Decided June 26, 1884.

Headnote

Forfeiture—deposit by tenant as security.

A sum of money was deposited by tenant “as security for the payment of rent, according to the provisions and conditions of the lease, said security to be paid back to the tenant on the full compliance with the provisions of the lease on the .part of the tenant.” Tenant was dispossessed during the term for non-payment of rent to an amount smaller than the deposit. No other covenants of the lease were broken.

Held, that the deposit was not forfeited, but that the landlord could only deduct the amount of rent due from the deposit.

Before Sedgwick, Ch. J., and Truax, J.

Plaintiff’s exception to the order of the trial justice directing a verdict for defendant, heard at general term in first instance.

Plaintiff’s assignor leased of defendant a house for a term of years at $300 per month. The lease contained the ordinary provisions; a covenant of the tenant to repair, and also a clause as follows: “In lieu of security, party of the first part accepts and the party of the second part agrees to pay to him the sum of $900. The party of the first part to pay interest at the rate of six per cent, thereonj and to hold the same as his security for the payment of rent by the party of the second part, according to the conditions and provisions of this lease on the part of the party of the second part, said security to be paid back to the party of the second part on the full compliance with the provisions of this lease on the part of the party of the second part.”

The tenant was dispossessed during the term for non

p. 449

payment of rent to an amount differently stated by plaintiff (assignor of tenant) and defendant, but admitted to be less than the deposit. Plaintiff, as assignee of tenant, sued to recover the $900.

The trial justice, at the close of plaintiff’s testimony, rendered a verdict for the' defendant, on the ground, as stated in the order, that “his assignor (the tenant) had failed to pay some rent, irrespective of the amount thereof,” and had thus failed “ to comply with the provisions of the lease.” Plaintiff excepted ; asked to go to the jury, and his exceptions were ordered to be heard in the first instance at general term.

Alfred I. Walker and David L. Walter, for plaintiff.

Kent & Auerbach, for defendant.

One Therese Dosot (the plaintiff’s assignor) leased from the defendant certain premises and deposited with him the sum of $900 “in lieu of security.” The lease contained a provision that the defendant should pay interest on this sum and hold it as his security for the payment of rent according to the conditions and provisions of the lease, and that said security was to be paid back on the full compliance with the provisions of the lease on the part of said Dosot. Said Dosot was dispossessed for non-payment of rent. The plaintiff, as assignee of said Dosot, brings this action to recover said sum of $900. At the close of plaintiff’s case the court directed the jury to find a verdict for the defendant. To this ruling and to the denial of a motion for leave to go to the jury the plaintiff excepted, and the court ordered the exceptions to.be heard in the first instance at the general term.

The evidence shows that all the covenants of the lease, except the covenant to pay rent, were fully performed, that the covenant to pay rent was broken by the non-payment of the sum of $138.36.

The money was deposited for two purposes: 1st. It was deposited in the place of security for the payment of such

p. 450

rent as should be due at the termination at the lease, which was in this case $138.36 ; and, 2nd. It was deposited as security for the performance of the other covenants on the part of plaintiff’s assignor, and, as none of these other covenants were broken, the deposit could only be held for the payment of the rent due.of the termination of the lease. On the evidence the plaintiff was entitled to recover from the defendant the difference between the amount of rent due ($138.36) and $900. It was error to direct a verdict for the defendant.

The exceptions are sustained and a new trial is ordered, with costs to abide the event.

Sedgwick, Ch. J., concurred.