
    Hyman Wolf and Avadia Lomosky, Appellants, v. Joseph Rudinsky, Respondent.
    First Department,
    December 17, 1909.
    Landlord and tenant — when covenants, do not survive eviction.
    Tlie dispossession of a tenant by summary proceedings terminates the lease except as to covenants which are so drawn that they survive the eviction. Thus, a covenant that the landlord may re-enter the premises if they become meant, and- -relet as agent of the tenant, does not survive an- eviction by summary proceedings. " •
    M'either does a covenant to pay renb survive an eviction by summary proceedings because of an agreement that in case of default by the tenant in any covenants of the lease the landlord may re-enter and take possession without notice.
    Appeal by the plaintiffs^ Hyman Wolf and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 5th day of February, 1909, upon the decision of the court rendered after a trial at the Hew York Trial Term, á jury having been waived.-
    
      Samuel I. Frankenstein for the appellants.
    
      Max D. Steuer, for the respondent.
   Scott, J.:

This is an action to recover a sum of money deposited by a tenant with his landlord, and which it was stipulated should operate “ as liquidated damages to the landlord should the tenant fail, to comply with all .or any of the conditions of this agreement. Should the tenant not break the conditions of the agreement then the said amount will be applied by the landlord to the last two months’ rent. of the said lease.” The lease was dated June 12, 1907. The tenant failed to pay the rent which became due September 1, 1907, whereupon the landlord collected a sum of money from the undertenants, and on September 6, 1907, began summary proceedings, to recover possession of the premises, which culminated on September 13, 1907, in the issue of a warrant and the dispossession of the tenant. The tenant now sues to recover his deposit less the amount of rent due when the warrant of dispossession was executed. He was defeated upon the ground that his action was premature. The 'clauses of the lease bearing upon this question are peculiar. They read as follows:

■ “ 8th. That if the said premises or any part thereof shall become vacant during the said term, the .landlord or his representatives may re-enter the same, either by force or otherwise,- without being liable to prosecution therefor; and relet the said premises as the agent of the said tenant and receive the rent thereof, applying the same, first to the payment of such expense as he may be put to in re-entering and then to the payment of the rent due by these presents, the balance, if any, to be retained by the landlord as liquidated damages.”
“16th. * '* * That if default be made in any of .the covenants herein contained then it shall be lawful for the said landlord to re-enter the said premises, and the same to have again, repossess and enjoy. The said tenant 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 13th„ 1846.”

The privilege of the landlord to re-enter and let the premises as the agent of the tenant is expressly limited to the contingency of the premises being vacant, and there is neither allegation nor stipulation that they ever did become vacant. The condition as to the breach of the covenants,- including the covenants to pay rent, is merely that the landlord may re-enter, and nothing is said about reletting as the agent of the tenant. In Anzolone v. Paskusz (96 App. Div. 188) and like cases, the covenant which was deemed to survive eviction was one for the payment of rent and the fulfill- . ment of all covenants, and it was expressly agreed that in case of the breach of any of these covenants the landlord might re-enter and relet as. the agent, of the tenant.

A dispossession in summary proceedings under the statute terminates the lease except as to the covenants and conditions which are expressly so drawn as to survive: The covenant for the payment of rent was not. so drawn in the present case. '

The judgment must be reversed and a new trial granted, with costs to appellants to abide the event.

Ingraham, McLaughlin, Clarke and Houghton, JJ ., concurred.'

Judgment reversed, new trial ordered’, costs to appellants to abide event. ’ . 
      
       See Laws of 1846, chap. 274, § 3; Laws of 1880, chap. 245, § 1, subd. 23; Code Civ. Proc. § 1505.— [Rep.
     