
    Albert H. Woods, Respondent, v. David Broder and Sarah Cohen, Appellants.
    (Supreme Court, Appellate Term,
    April, 1908.)
    Guaranty—Construction and operation — If ature, scope and extent of liability in general — Guaranty of rent while tenants in occupation.
    Where defendants guaranteed that if, at any time during the term of a lease, the tenants should be in occupation of the demised premises and should “fail to pay the rent for such month or months that they will be in occupation of said premises during the term of said lease” the defendants would pay such rent, they are not liable for rent after the tenants, with the consent of the landlord, had surrendered to him possession of the premises.
    
      Appeal "by the defendants from a judgment of the City Court of the city of Hew York, entered in favor of the plaintiff upon a verdict directed by the court.
    .Meyer Greenberg (I. Baldh Louis, of counsel), for appellants.
    Henry J. Goldsmith, for respondent.
   Dayton, J.

The plaintiff sues the defendants as guarantors of the payment of rent under a lease to Charles Treitler and Abraham Peyser of the premises known as the Olympic (subsequently Park) Theater, at Third avenue and One Hundred and Twenty-ninth street, Hew York. The guaranty reads as follows :

Whereas the said Albert H. Woods has exacted from the said Charles Treitler and Abraham Peyser as a condition that they furnish to the said Albert H. Woods a guaranty in writing that they will pay all the rents due or that may become due under and by virtue of said lease during the terms thereof while they are in the occupation of said premises.

How, therefore, we, the undersigned, David ■ Broder and Sarah Cohen, for and in consideration of the sum of One Dollar, to each of us in hand paid, the receipt of which is hereby acknowledged, and for other valuable considerations; do hereby undertake and agree with the said Albert H. Woods that if at any time during the term of said lease said Charles Treitler and Abraham Peyser will be in-the occupation of said premises and shall fail to pay the rent for such month or months that they will be in occupation of said premises during the term of said lease, we, the undersigned, will pay to the said Albert H. Woods such rent or rents for such month or months as they may become due and payable under said lease, that they the said Charles Treitler and Abraham Peyser shall have failed to pay.”

The defendant Sarah Cohen testified that, on September, 30, 1907, she asked the plaintiff’s agent Herman for a reduction in the rent; that he said: “ Ho, he wants the full rent; if not you must deliver us the theater;” that the scenery belonging to the lessees was moved out on that day and that she “ came up again to the office and met Mr. Herman and he said: Ho, Mr. Woods will not agree to it; give us the place or the money.’ ” She then said: “We have removed our scenery already, as he did not give us an answer on the thirtieth. He (Herman) said he was satisfied. On the thirtieth I had the scenery removed.”

This evidence was undisputed. There appears also in the record a concession that the defendant Broder would, if present, have corroborated Sarah Cohen in all respects and that “ they removed the scenery and got out of possession of this theater and did not occupy it after the 30th of September, 1907.”

Both Miss Cohen’s testimony and also the concession as to what Broder would testify were then upon motion of plaintiff’s counsel stricken out, over the objection and exception of defendant.

It was the contention of defendants’ counsel, on a motion to dismiss made at the close of plaintiff’s case and renewed at the close of the trial, that defendants were not liable because by the terms of their undertaking they could not be held for rental, except for the time in which the lessees were in actual physical occupation of the theater. And upon this contention the evidence of Sarah Cohen and Broder was competent and material and should have keen received. There was no attempt made to contradict their story. While the guaranty may seem at first blush somewhat uncommon in its nature, yet a careful examination of the language leads us to believe that it must be construed to mean exactly what it says, namely, that the liability of the guarantors is restricted to such time as the lessees were in occupation of the premises. And this construction is made necessary from the deliberate use of the phrase in the preamble to the surety agreement and its repetition twice in the instrument itself. Also the provision contained in the lease that, “ in case the said leased premises shall become vacant or unoccupied, the said lessor shall have the right to enter ” and relet, etc., is a further indication of what was in the minds of the guarantors.

Adopting this construction of the lease, it is apparent that the evidence above indicated was improperly stricken out and, further, that the questions to the plaintiff on cross-examination- by defendants’ counsel as to the condition of the theater subsequent to September 30', 1907, and whether or not there was any of the lessees’ scenery in the theater or any performance therein after that date, were proper and should have been allowed.

The judgment must be reversed and, upon onr theory that defendants were not liable except for such time as the lessees were in actual physical occupation of the premises, the complaint must he dismissed, with costs.

Giedersleeve and Seabury, JJ., concur.

Judgment reversed and complaint dismissed, with costs.  