Hermitage Co. v. Levine
| Decision Date | 29 May 1928 |
| Citation | 248 N.Y. 333,162 N.E. 97 |
| Parties | HERMITAGE CO. v. LEVINE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by the Hermitage Company against Joseph Levine. From a judgment of the Appellate Division (222 App. Div. 12, 225 N. Y. S. 222), reversing a judgment of the Trial Term, which dismissed the complaint, and directing judgment for plaintiff, defendant appeals.
Reversed, and judgment of the Trial Term affirmed.
Appeal from Supreme Court, Appellate Division, First department.
Meyer D. Siegel, of New York City, for appellant.
Albert H. Atterbury and Taylor More, both of New York City, for respondent.
Plaintiff leased to defendant a seven-story building in the city of New York for a term of 21 years and 2 months, commencing August 1, 1924, and ending October 1, 1945, at a rent of $72,000 a year, payable monthly in advance, for the first 5 years, together with all taxes, assessments, insurance charges, and other expenses incidental to the maintenance and management of the building, and at a higher rent thereafter.
Defendant went into possession, but paid the rent for only a few months, and was dispossessed in summary proceedings on December 31, 1924.
The lease contained the following provision as to the liability of the tenant after re-entry by the landlord:
‘In case the tenant shall be dispossessed or ejected, or shall remove from or abandon the demised premises after a demand for the rent or the service of a notice as provided by section 1410 of the Civil Practice Act, or after the commencement of dispossess proceedings, or for any other reason, the landlord may re-enter the said premises by force or process of law or otherwise, and relet the same as agent for the tenant, and the tenant shall remain liable for all damages which the landlord may sustain by any such breach of this agreement, or through such entry or reletting.’
Plaintiff, upon resuming possession, made diligent effort to relet. There floors it relet to one tenant, two to a second, and a part of one floor (the first) to a third. For a few months it ran a garage on the remaining part of the first floor, but later relet this also. By August 1, 1925, it had relet the whole building. The new leases were for varying terms. There and a half floors were relet for 15 years; two and a half for 10 years; and one for 3 years. After all are at an end, a substantial period will remain before October 1, 1945, when the defendant's liability expires.
This action, begun in March, 1926, is brought to recover the damages suffered by the landlord through the deficiency of rents computed to that time. The defendant is credited with $30,000, a security deposit, and with the profits earned through the use of the garage as well as with the rents collected. The result is a deficiency of $25,529.39, for which judgment is demanded. The Trial Term dismissed the complaint. The Appellate Division reversed, and gave judgment for the plaintiff.
[1] The principal question is whether the action is premature. After the tenant had been ejected in summary proceedings, the lease was at an end. What survived was a liability, not for rent, but for damages. Kottler v. New York Bargain House Co., 242 N. Y. 28, 150 N. E. 591. The defendant insists that ascertainment of the damages will be impossible until October 1, 1945. The plaintiff insists that, by the proper construction of the covenant, the loss is to be ascertained monthly as if the lease were still in force, with the result that successive causes of action will arise with every monthly deficit.
[2] The provision that the landlord may relet as the agent of the tenant after the termination of the lease does not mean that he is an agent in a strict sense. Plainly, he is not, for, after the termination of the lease, what he relets is his own. The privilege to relet as agent for the former tenant means this, and nothing more, that the reletting shall be evidence of the damages sustained. We find an analogy in the statement, not infrequent in the books, that a vendor of personal property is the agent of a vendee in reselling upon default. Moore v. Potter, 155 N. Y. 481, 487,50 N. E. 271,63 Am. St. Rep. 692. The damages, when the time to ascertain them comes, will be computed upon the basis of what is realized through the reletting without other evidence of value.
[3] The question is still left, How often and when shall the damage be...
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N.J. Indus. Properties, Inc. v. Y.C. & v. L., Inc.
...the difference in rent "in equal monthly payments as the amount of such difference shall from time to time be ascertained." [248 N.Y. 333, 162 N.E. 97, 98 (1928) (emphasis In Hermitage, such a clause was not present. Hence, the court held that damages arising from the reletting would be bas......
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Palmer v. Connecticut Ry Lighting Co
...The liability of the lessee for damages is single, knot multiple. But § 77, sub. b, unlike some state rules (Hermitage Co. v. Levine, 248 N.Y. 333, 162 N.E. 97, 59 A.L.R. 1015), calls for an ascertainment of the full deficiency not at the end of the term but on rejection of the Lessors clai......
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Gotlieb v. Taco Bell Corp.
...Landlord & Tenant § 108. No further rent accrues because the landlord-tenant relationship no longer exists. See Hermitage Co. v. Levine, 248 N.Y. 333, 162 N.E. 97, 98 (1928). The defendant herein repudiated the lease by letter dated February 14, 1992, (Exhibit D to Complaint), sent in respo......
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Islip U-Slip LLC v. Gander Mountain Co., 3:13–cv–0350 (MAD/DEP).
...unless the parties expressly agree to a contrary procedure.Muss, 352 N.Y.S.2d at 29 (citing, inter alia, Hermitage Co. v. Levine, 248 N.Y. 333, 162 N.E. 97 (1928)). It is undisputed that the Lease does not contain a rent acceleration clause. See Dkt. No. 1–1; Dkt. No. 10 at 11; Dkt. No. 20 ......