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Annie Michaels v. Aaron A. Fishel and Abraham I. Adler.

(109 N. Y., 1) the same question arose and it was so resolved. There the money was deposited under a provision in the lease that it should be held as security for the rent, and should be paid back "on full compliance with the conditions of this lease." Plaintiff having been dispossessed for non-payment of rent, the Court held that the purposeof the deposit was only to secure the rent and not to secure compliance with the other provisions of the lease, and that the plaintiff was accordingly entitled to recover the deposit, less the amount of the rent unpaid and due at the time of the breach. The plaintiff had also broken a covenant to repair, and the Court held that the resultant damages were available only by way of counterclaim, and not in diminution of the cause of action. In this case the damages for loss of rents having been pleaded by way of counterclaim, the respondents cite Scott r. Montells as an authority in support of the judgment. But it is to be noted that in that case the breach and liability were complete at the time of the dispossession, and the question of the effect of a covenant to remain liable for rent after re-entry by virtue of the lease, where in fact the re-entry was by virtue of the statute, was not before the Court. In respect of the failure to repair, the case was like Johnson v. Oppenheim (55 N. Y., 280, 293), where it was held that "the eviction of a tenant by summary proceedings, for non-payment of rent does not discharge him from the payment of rent or other obligations already accrued; the lease is only annulled as to future rights and liabilities, and an action for breaches of covenant already incurred is maintainable."

The views herein expressed are in direct conflict with the case of Lewis r. Stafford, decided by the Appellate Term in the First Department, and reported 24 Misc., 717. In that case the provision in the lease was that "in case of default, or any violation in any of the covenants, the landlord may resume possession of the premises and relet the same for the remainder of the term at the best rent he can

Annie Michaels v. Aaron A. Fishel and Abraham I. Adler.

obtain, for account of the tenant, who will make good any deficiency." The Court held that this provision took the contract out of the operation of Section 2253 of the Code, and permitted the landlord to recover the deficiency, not as rent, but as damages for the breach. This decision was on the authority of Hall v. Gould (13 N. Y., 127) and Baldwin . Thibadeau (28 Abb. N. C., 14). In Hall v. Gould, however, the re-entry was accomplished through an action of ejectment, and the question of the effect of the Code provision was not and could not have been considered. The agreement of the parties, as was said by the Court (p. 134) provided "for the exact case which has happened." In the case of Hackett r. Richards (13 N. Y., 138), decided at the same term, the same conclusion was reached where re-entry was accomplished through summary proceedings, but the lease in that case provided that upon default the landlord "shall and may take possession of the same under the act entitled 'Summary Proceedings to recover the possession of land in other cases' (R. S., 512), shall and may or re-enter the same," &c. The other case relied on by the Appellate Term as authority-viz: Baldwin l'. Thibadeau-was decided by the General Term of the late Court of Common Pleas. The provision in the lease appears to have been substantially identical with that in the case of Chaude . Shepard (supra), and the decision of the General Term to be to a considerable extent irreconcilable with that of the Court of Appeals. In each case the landlord was permitted to re-enter by operation of the contract in the event that the premises became vacant during the term; in each case the landlord was authorized to relet as agent of the tenant, who should remain liable for the deficiency; in each case summary proceedings were instituted for nonpayment of rent; and the General Term held that liability for the subsequent vacant condition of the premises survived the cancellation of the lease, while the Court of Appeals regarded the provision for re-entry and a subsequent

Vereinigte Pinsel fabriken v. John Bard Rogers.

letting as in nowise related to a termination of the tenancy as accomplished by summary proceedings for nonpayment of rent.

The conclusion reached is that by virtue of Section 2253 of the Code summary, proceedings operate to cancel a lease and to annul the contractual relations of the parties, with the single exception that liability will still exist to pay rent accrued, or for the use and occupation of the premises prior to the issuing of the warrant; that while an agreement may be made which will serve to take a lease out of the operation of this section, it must be an agreement having that end as its manifest object; and that the usual and formal provision for re-entry on default, which ante-dates in its use the adoption of summary proceedings, is not in itself a sufficient manifestation of such an intention. The judgment should be reversed.

All concur.



SS 1933, 1937, 1938.

Construction of contract-Admissibility of judgment roll under section 1933, Code Civil Procedure.

Where a judgment roll was admitted for a specific purpose, to wit, as evidence of the extent of the plaintiff's demand, under section 1933 of the Code, and it did not appear to have been used for any other purposes. Held, that there was no error that would justify a reversal, although the record showed that there had been some discussion between counsel and the court as to the purpose for which the judgment roll was offered.

(Decided June, 1900.)

Vereinigte Pinselfabriken v. John Bard Rogers.

Appeal from judgment entered upon verdict of jury, and from an order denying motion for a new trial.

Thaddeus D. Kenneson for appellant.

Ira L. Bamberger for respondent.

INGRAHAM, J.-The action is brought to recover for goods sold and delivered, the plaintiff being a foreign corporation and the defendant a member of a firm doing business in the City of New York, composed of himself and one John L. Sardy. An action was commenced against the members of this firm in which the summons was served upon Sardy, but not on the defendant. In that action judg ment was recovered in favor of the plaintiff against Sardy for the amount claimed. Subsequently this action was commenced, as allowed by Section 1937 and 1938 of the Code of Procedure, the complaint alleging that certain goods were sold and delivered to the copartnership; that an action had been commenced against the firm and judg ment had against Sardy, but that the defendant had not been served in that action, and that the defendant in this action and Sardy were copartners. The answer admits the copartnership; denies the sale of the goods by the plaintiff to the corporation; denies knowledge or information sufficient to form a belief as to the judgment in the former action, and alleges payment of any sum or sums due from the defendant to the plaintiff.

Upon the trial of the action the judgment roll in the former action was offered in evidence, and there seems to have been some discussion between the counsel and the Court as to the purpose for which it was offered. The judgment roll was clearly admissible under Section 1933 of the Code, which provides: "As against a defendant not summoned, it (the judgment) is evidence only of the extent of the plaintiff's demand, after the liability of that defendant has been established by other evidence." Counsel for

Vereinigte Pinsel fabriken v. John Bard Rogers.

the plaintiff stated: "I also offer the judgment roll, and each paper comprising it and therein contained specifically under Section 1933 of the Code as evidence of the extent of the plaintiff's demand." There was an objection by counsel for the defendant, but the judgment roll was admitted in evidence, and it was clearly admissible for the purpose above mentioned. There is nothing in the record to show that this judgment roll was used for any other purpose than that specified in Section 1933 of the Code, and there was no request for an instruction to the jury as to the weight to be given to it nor an exception to the charge of the judge upon the subject. As the judg ment roll was properly admitted for a specific purpose, and as it does not appear to have been used for any other purpose, there was no error that woud justify a reversal of the judgment. There is no other exception to a ruling on evidence that requires notice.

The defendant also excepted to the construction given to the third clause of the contract between the plaintiff and Sardy, Coles & Company. By this contract the plaintiff agreed to sell all the goods it manufactured for the United States through Sardy, Coles & Company; and by the third clause of the contract the plaintiff agreed to pay Sardy, Coles & Company for their services a commission of 3 per cent. on the invoice value on all sales in the United States not made-from stock, whether said sales should be made by Sardy, Coles & Company or by the plaintiff; “And on all sales made by Sardy, Coles & Company in their own name from stock kept by the said Vereinigte Pinselfabriken in the United States for their account, the said Vereinigte Pinselfabriken agreed that said Sardy, Coles & Company shall, in addition to said 3 per cent. commission, deduct five per cent. on the invoice price of such goods." There was thus a distinction between sales made by Sardy, Coles & Company in their own name from stock kept by the plaintiff, whether through Sardy, Coles & Company or not; and the contract clearly contemplated

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