Chaude v. Shepard

• Decision Date: 28 October 1890
• Citation: 25 N.E. 358,122 N.Y. 397
• Parties: CHAUDE v. SHEPARD.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 397

25 N.E. 358

CHAUDE

v.SHEPARD.

Court of Appeals of New York, Second Division.

Oct. 28, 1890.

Appeal from judgment of the general term of the superior court of the city of New York, affirming judgment entered on a verdict in favor of the plaintiff.

On the 1st day of September, 1886, the parties entered into an agreement of lease by which the defendant, of the first part, demised to the plaintiff, of the second part, certain premises in the city of New York, for the term of three years and eight months from that date, for the yearly rent of $6,000, payable in equal monthly payments on the 15th day of each month. In it was the provision that the party of the second part, ‘on the execution of this lease, agrees to deposit with the party of the first part the sum of fifteen hundred dollars as security for the faithful performance by the party of the second part of the covenants of this lease; the same to be applied as payment of rent on the last three months of the term for which said premises are rented, provided said lease is not sooner terminated by failure of the party of the second part to keep and perform the covenants of said lease, in which last event the said $1,500 shall be forfeited, and become the property of the party of the first part absolutely.’ Also the further provision that if the ‘demised premises, or any part thereof, shall become vacant at any time during the said term, the said party of the first part, and his legal representatives or assigns, may re-enter the same by force or otherwise without being liable to any prosecution therefor, and may relet the said premises as the agent and for account of the said party of the second part, and receive the rent thereof, applying the same, first, to the payment of such expense as he or they may be put to in re-entering and reletting, and then to the payment of the rent due by these presents, with interest, and the balance, if any, to be paid over to the said party of the second part; and, any deficiency which may arise, the said party of the second part hereby covenants and agrees to pay in full.’ The plaintiff deposited with the defendant $1,500 pursuant to his agreement in the lease. He went into possession of the premises, and paid the rent which became due prior to December 15, 1886, when he became in default for the non-payment of rent for one month, ending January 15, 1887. By means of summary proceedings, instituted by the defendant in court, and warrant thereon issued, the plaintiff was on December 23, 1886, removed from the premises, and possession thereof taken by the defendant. This action was brought to recover $1,000 of the amount so deposited, and recovery was had accordingly.

Sidney Ward, for appellant.

John C. Tomlinson, for respondent.

BRADLEY, J. ( after stating the facts as above.)

There was no express promise in the lease to repay the deposited sum, or any part of it, to the plaintiff in any event; and it is insisted on the part of the defendant that none can be implied, inasmuch as the contract provided what disposition should be made of it in case the lease was terminated by the default of the plaintiff before the end of the term. The main question has relation to the effect of that provision of the agreement in the lease. It may be observed that the primary purpose of the deposit was security for the performance by the plaintiff of his covenants in that instrument. Those covenants were to pay the rent and the charges assessed for Croton water, and to make repairs during the term. The only default at the time of his removal by means of the summary proceedings taken by the defendant was in the non-payment of one month's rent, which became due immediately preceding the time of the commencement of such proceedings, resulting in his removal before the expiration of the month for which the rent then due was payable. The defendant then had in his hands a sum furnished by such deposit sufficient to pay the rent, not only for that month, but for two additional months. The deposit expressed in the lease was intended as security for the performance by the plaintiff of his covenants, and finally, in case his tenancy was not sooner terminated, to be applied in payment of the rent for the three closing months of the term. What then was the purpose, within the intention of the parties, of the further provision...