Scott v. Montells
| Decision Date | 06 March 1888 |
| Citation | 15 N.E. 729,109 N.Y. 1 |
| Parties | SCOTT v. MONTELLS. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from general term, supreme court.
An action by plaintiff, John G. Scott, assignee of a tenant, against Pedro Montells, the landlord, to recover a deposit made by such tenant with the landlord to secure the payment of the rent. Judgment for the plaintiff, and defendant appeals.
Geo. W. Cotterill, for appellant.
David L. Walter, for respondent.
We do not think that the failure of plaintiff's assignor to pay the rent due under the lease (by reason of which she was by the landlord dispossessed) operated to forfeit all her title to the deposit she made with the landlord. It was made as security only, and, in case of failure on her part to perform, the landlord was not confined to the deposit for a remedy, nor, if he did resort to it, was he entitled to retain more of it than amounted to his demand againt the tenant for damages arising out of the breach. The cases cited in the opinion attached to the brief of appellant, where owners of real estate had contracted to sell it, and had retained partial payments of purchase moneys made to them by vendees, who subsequently, without just cause, refused or failed to fulfill their contracts by taking a conveyance of the land, seem to us to have no application here.
The defendant sought to prove upon the trial of the action that the assignor of plaintiff had left the house in a bad condition, and had not made necessary repairs therein which she had convenanted to do in the lease; and that he had made them himself, at a cost of over $400, which he claimed to deduct from the deposit, besides the amount of the rent due at the time the tenant was dispossessed. The trial court refused to allow the reduction, on the ground that the answer contained no counter-claim. The answer did allege the foregoing facts as to the repairs, etc., but did not set them up as a counter-claim; nor did it demand judgment for the amount of his expenditures for repairs, but simply claimed to reduce pro tanto the plaintiff's own original cause of action. If the money had been deposited with the landlord as security for the performance of all the covenants in the lease, it is very probable that there was enough stated in the answer to render the evidence of the amount expended for the repairs admissible; because in such case the facts would not have constituted a counter-claim, but would have gone in diminution of the...
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...similar character in leases or agreements between landlord and tenant. Chaude v. Shepard, 122 N.Y. 397, 25 N.E. 358, supra; Scott v. Montells, 109 N.Y. 1, 15 N.E. 729.) In these cases it was held that the deposit was intended as security for the performance of the covenants of the lease, an......
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