McCready v. Lindenborn

• Decision Date: 11 November 1902
• Parties: McCREADY v. LINDENBORN.
• Court: New York Court of Appeals Court of Appeals

172 N.Y. 400

65 N.E. 208

McCREADY

v.LINDENBORN.

Court of Appeals of New York.

Nov. 11, 1902.

Appeal from supreme court, appellate division, First department.

Action by Caroline A. McCready against David Lindenborn. From order of the appellate division (71 N. Y. Supp. 355) sustaining plaintiff's exceptions, defendant appeals. Affirmed.

On the 9th of October, 1893, the plaintiff leased to the defendant certain premises in the city of New York for the term commencing October 1, 1894, and ending April 30, 1904, at the annual rent reserved of $6,400, payable in equal monthly payments in advance. Said lease contained many covenants made by either party, and among others the following on the part of the lessee: ‘That if the said premises shall become vacant during the said term the said party of the first part, or her representatives, may reenter the same, either by force or otherwise, without being liable to any prosecution therefor, and relet the said premises as the agent of the said party of the second part, and receive the rent thereof, applying the same first to the payment of such expenses as they may be put to in re-entering, and then to the payment of the rent due by these presents, and the balance, if any, to be paid over to the said party of the second part, who shall remain liable for any deficiency. And the said party of the second part hereby further covenants that if any default be made in the payment of the said rent, or any part thereof, at the time above specified, or if any default be made in the performance of any of the covenants and agreements herein contained, the said hiring and the relation of landlord and tenant, at the option of the party of the first part, shall wholly cease and determine, and the party of the first part shall and may re-enter the said premises and remove all persons therefrom, and the said party of the second part hereby expressly waives the service of any notice in writing of intention to re-enter as provided for in the third section of an act entitled ‘An act to abolish distress for rent and for other purposes,’ passed May 13, 1846 [Laws 1846, p. 369]; and in such case the party of the second part shall and will pay or cause to be paid to the party of the first part, as damages for the breach of the covenant for rent herein, the difference between the amount of rent hereby reserved and the amount of rents which shall be collected and received, or might with due diligence be collected and received, from the said demised premises during the residue of the said term remaining unexpired, at or immediately before the time of such re-entry, in equal monthly payments, as the amount of such difference shall from time to time be ascertained.'

The plaintiff alleged in her complaint the making of this lease, and that on the 1st of October, 1894, the keys of the building were delivered to the defendant, and were by him retained, and that she duly performed all covenants and conditions of said lease on her part; that the lessee omitted to pay the rent for the months of October and November, 1894, and that she recovered separate judgments against him for these installments; that the rent due for the month of December, 1894, was duly demanded, and payment thereof was refused, and that the defendant ‘has refused and continues to refuse to comply with the said lease and to perform his part of the same and to pay rent; that under the provisions of said lease the rent for that portion of the term subsequent to November, 1894, to wit, from December 1, 1894, to April 30, 1904, amounts to at least the sum of $60,266.66, in addition to the cost of necessary repairs on said building, and all water rates in excess of $50 in each year; that the said building was altered and prepared especially for the use and occupation of the defendant by the plaintiff at a cost of over $16,000; that by the failure and neglect of the defendant to perform his part of the said lease, and to perform the covenants thereof on his part to be performed, and to pay the rents, water rates, and repairs as agreed, the plaintiff has been compelled to expend and has expended large sums of money in the care and repair of said building, and has been obliged to pay increased insurance on the same, and the plaintiff has been and is unable, after diligent effort, to relet the said premises at a rent equal to that which the defendant covenanted and agreed to pay, and, in consequence of the character of the alterations and improvements made especially for the said defendant and for his particular business, the plaintiff has been unable to relet the said premises without other and further extensive alterations and repairs, which said plaintiff has made at an expense of about $4,000 in good faith, and for the purpose of reducing her damages caused by the neglect and failure of the defendant to perform his part of said lease, by reletting the same at the best prices she could obtain therefor; that by reason of the matters and things aforesaid, and by reason of the defendant's refusal, neglect, and failure to perform his part of said lease, and by reason of defendant's breaches of the covenants of the said lease, plaintiff has been damaged to the amount of $35,000, no part of which has been paid, although demand has been duly made as aforesaid.’ The only relief demanded was judgment for said sum of $35,000 and costs.

In the first bill of particulars served by the plaintiff, she specified as items of damage the rent reserved for nine years and five months, increased insurance and pay of watchman ‘during vacancy,’ amounting in all to the sum of $60,491.80, and stated that the amount of the claim alleged in the complaint was arrived at by allowing a credit of $25,491.80, ‘the estimated amount of rents that can with due diligence be obtained from said property,’ after paying from the gross rents ‘the necessary expense of restoring the property for ordinary business uses and necessary repairs and alterations for separate tenancies, expense of reletting,’ etc. In the second bill of particulars, served pursuant to an order of the court, she stated that ‘the items of diminution of rentals are from the 1st of December, 1894, to the 1st of January, 1899,’ as follows: Rent of the whole building reserved for that period, $26,133.33, without expenses or deductions; expenses on the building aside from taxes, water rates not exceeding $50 a year, repairs to streets and sidewalks, roof girders and outer walls, and ordinary fire insurance, $11,774.01; gross rents received, $22,663.50, less said expenses, $11,774.01; leaving actual diminution in rentals $15,243.84 to January 1, 1899.

This action was commenced on the 12th of September, 1898, and upon the trial the plaintiff read in evidence said lease, and the judgment rolls in the actions for the...