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Palmer & Singer Mfg. Co. v. Barney Estate Co.

Supreme Court of New York, Appellate Division

February 16, 1912

PALMER AND SINGER MANUFACTURING COMPANY and KNICKERBOCKER GARAGE, Respondents,
v.
BARNEY ESTATE COMPANY, Appellant.

Page 137

APPEAL by the defendant, the Barney Estate Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 17th day of November, 1911, upon the decision of the court rendered after a trial at the New York Special Term, and also, as stated in the notice of appeal, from the decision upon which said judgment was entered.

The judgment granted a permanent injunction restraining the defendant as landlord from interfering with plaintiffs' possession of certain premises under a lease, and from prosecuting or continuing pending summary proceedings to dispossess.

COUNSEL

Walter E. Hope of counsel [Masten & Nichols, attorneys], for the appellant.

Jay Noble Emley, for the respondents.

OPINION

CLARKE, J.:

The defendant is the owner in fee and landlord of certain premises known as 1618 and 1620 Broadway, in the borough of Manhattan, and the plaintiffs are tenants thereof under a lease entered into in 1906 between the then owner of the property and plaintiffs' assignor. The said lease was for a term of ten years,

Page 138

and provided for an annual rent of $19,500, to be paid in advance in equal quarterly payments.

The said lease further provided: ' Ninth. In case of default by said tenant in any of the covenants herein contained or in case the whole or any part of said premises shall become vacant, the landlord may at his option terminate this lease at any time by giving thirty days previous notice to the tenant, said notice to be left on the premises with any person in charge thereof, or to be affixed upon a conspicuous part of the premises, if they are vacant; or the landlord may at his option re-enter the said premises and resume possession thereof, either by force or otherwise, without being liable for any prosecution therefor, and re-let the same during the remainder of the term, at the best rent that he can obtain for account of the tenant who shall make good any deficiency.'

The Special Term has found as a fact that said 9th clause of the lease herein, so far as same was applicable to the covenant to pay rent, was inserted as a security merely for such payment, and was so regarded by the parties.

The building which it was contemplated would be erected upon the premises was completed and the tenants entered into occupation of the same under the terms and provisions of the said lease on the 18th day of January, 1908, and on that day paid the first quarterly installment of rent in advance. Quarterly installments of rent in advance were thereafter paid as follows:

Due according to lease.  

 Paid by check dated.

April 18, 1908.  

 April 18, 1908.

July 18, 1908.  

 July 18, 1908.

Oct. 18, 1908.  

 Oct. 19, 1908.

Jan. 18, 1909.  

 Feb. 18, 1909.

April 18, 1909.  

 April 20, 1909.

July 18, 1909.  

 July 21, 1909.

Oct. 18, 1909.  

 Nov. 3, 1909.


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