
    Virginia W. Baldwin, Resp’t, v. Wilhelmina A. Thibadeau, Impl’d, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 1, 1892.)
    
    
      1. Lease—Cancellation by summary proceedings.
    The institution of summary proceedings, recovery of final order awarding possession to the landlord and the abandonment of the premises by the tenant, notwithstanding the landlord's notice that she would not enforce the order nor cause the warrant for the delivery of possession to be issued thereunder, cancels the lease and terminates the relation of the-parties^ as landlord and tenant, and except as to past breaches, and in so far asit was expressly agreed that liability thereon should survive its cancellation, each party to the lease is from that time discharged from the further performance of the covenants and conditions on his part.
    • 3. Same—Surviving covenant.
    The tenant, however, remains liable for any deficiency in future rent arising under a provision of the lease to the effect that if the premises became vacant “during the term” the landlord may re-enter and relet them as the agent of the tenant, apply the rents collected to the payment. of rent under the lease, and that the lessees will pay any deficiency; the word “ term” in such case including the period for which the estate was granted.
    Appeal from a judgment in favor of the plaintiff recovered in the district court of the city of New York for the eighth judicial district, in an action to recover the sum of $208.33 agreed to be deposited by the defendants as lessees, pursuant to the terms of a lease in writing and under seal, as additional security for the performance of the covenants on their part, and not as rent.
    
      Solomon F. Higgins, for resp’t; Winihrop Parker, for app’lt.
   Bischoff, J.

The contention between the parties to this appeal is as to the legal effect of the facts appearing on the trial, which were undisputed and are briefly stated as follows:

Plaintiff and defendants entered into a lease under their hands and seals whereby plaintiff let and rented, and the defendants accepted, the premises 231 West Thirty-eighth street in the city cf New York, for the term of three years, from October 1, 1890, to October 1, 1893, at the yearly rent or sum of $2,500, to be paid in equal monthly instalments in advance. Besides the payment of the rent and Croton water charges, and the surrender of the premises upon the expiration of the term in as good state and condition as reasonable use and wear thereof would permit, the defendants covenanted “that if the said premises, or any part thereof shall become vacant during the said term, the said party of the first part, plaintiff, or her representative, may re-enter the name, either by force or otherwise, without being liable to any prosecution therefor, and re-let the said premises as the agent of the parties of the second part, defendants, and receive the rent thereof, applying the same, first to the payment of such expenses as she may be put to in re-entering, and then to the payment of rent due by these presents; and the balance, if any, to be paid over to the said parties of the second part, who shall remain liable for any deficiencyand further, “ to pay to the party of the first part the sum of $208.33 on the 4th day of October, 1890, as additional security for the performance of ” the covenants of the lessees, “ and not as rent.”

Defendants took possession under this lease, and continued in possession until some time in January, 1891, when for default in the payment of the rent which had accrued on January 1, 1891, plaintiff instituted summary proceedings to recover possession of the premises, under the statute for such cases made and provided. These proceedings were not contested, and on January 22, 1891, resulted in a final order awarding such possession to the plaintiff, whose representative, however, at once informed defendants that she did not intend to take possession, nor would she accept it, and that it was not her intention to avail herself of the warrant issuable under the final order awarded, but that she would continue to hold the defendants for all future accruing rent Defendants, notwithstanding this notice, and anticipating the execution of a warrant for the delivery of possession, vacated the premises and offered the keys to plaintiff’s agent, who refused to accept the same. On January 13, 1891, plaintiff brought this action to recover the sum agreed to be paid by defendants as security, and before the trial of this action, and subsequent to the final order in the summary proceedings, defendants paid all the rent in arrears.

Plaintiff, however, contended that notice of her refusal to take or accept possession of the premises and to avail herself of the final order in the summary proceedings operated to defeat defendants’ right of voluntarily complying with its provisions by removal, and that the lease was therefore still subsisting; also, that though it be conceded that defendants’ abandonment of the premises subsequent to the final order in the summary proceedings did have the effect of cancelling the lease 'and terminating-the relation of landlord and tenant, she was, nevertheless, entitled to recover and hold the sum demanded as security for the payment of any deficiency in the rent reserved, which might remain upon her entry and reletting of the premises for defendants’ account, pursuant to their covenant to that effect. This last contention was acceded to by the trial justice, as appears from his-opinion accompanying the record, and plaintiff was awarded, judgment for the sum claimed.

The validity of these contentions is disputed by the appellant, and they present the only questions for our consideration.

This court has held in Gallagher v. Reilly, 16 Daly, 227; 31 St. Rep., 556, and Ash v. Purnell, 16 Daly, 189; 32 St. Rep., 306, that a tenant against whom summary proceedings to recover possession of the demised premises" are instituted may at any time after the service of the precept upon him voluntarily comply with its requirements and anticipate the final order in favor of the landlord and execution of the warrant for delivering of possession to him by removing from the premises, and that if he does so, such, removal will as effectually cancel the lease and end the relation of landlord and tenant as though the warrant had been actually issued as provided in § 2253 of the Code of Civil Procedure. We entertain no doubt of the accuracy of these decisions and reiterate the principles upon which they proceeded. Nor do we countenance the proposition that a landlord may prosecute such summary proceedings to a finality, and at the same time neutralize their effect by notice to the tenant that he will not avail himself of the rights and remedies therein secured. The landlord having effectually declared his intention to claim and recover possession by a solemn invocation of the aid of the courts for that purpose, the tenant should be permitted to elect whether he will voluntarily submit to the landlord’s claim or abide by his notice that he will not enforce the order awarding possession to him. Nothing short-of a withdrawal of the proceedings, however, and notice of it to the tenant before the latter has complied with the precept by removal, should be permitted to have the effect of giving continuity to the lease and the relation of the parties thereto. If the tenant has removed upon receipt of the precept, and before withdrawal of the proceedings and notice of such withdrawal to him, the lease and the relation of the parties as landlord and tenant can be re-hewed or continued only by means of a new agreement. A eon'"trary view would require that the tenant be subjected to a tenure ■even more precarious than that of a tenant at will. The latter is removable only upon a previous notice of at least thirty days, while the former would be in constant jeopardy of ejectment without as much as a moment’s notice.

Our conclusion is, therefore, that the pendency of the summary ■proceedings instituted by the plaintiff, the recovery of the final ■order therein awarding possession to the plaintiff and the abandonment of the premises by the defendant, notwithstanding plaintiff’s notice that she would not enforce the order nor cause the warrant for the delivery of possession to be issued thereunder, cancelled the lease and terminated the relation of the parties as landlord and tenant, and that, except as to past breaches, and in so far as it was expressly agreed that liability thereon should survive its cancellation, each party to the lease was from that time discharged from the further performance of the covenants and conditions on Ms part. Roe v. Conway, 74 N. Y., 201; Johnson v. Oppenheim, 55 Id., 281; Hackett v. Richards, 13 id., 138; Hall v. Gould, id., 127.

Tor the non-payment, therefore, of the sum which the defendants had agreed to deposit as security for the performance of their ■covenants, they continued liable, if any of those covenants survived the cancellation of the' lease or the termination of defendants’ leasehold estate; and this was so with respect to the covenant authorizing plaintiff to enter and relet for defendants’ account if there be a vacancy “during the term.” Hackett v. Richards and Hall v. Gould, supra. Counsel for the defendants insists that as the premises did not become' vacant until after the termination of their leasehold estate by means of summary proceedings to recover possession, there never ■ was a vacancy “during the term,” and,- hence, that plaintiff never obtained authority to relet the premises for the defendants and cannot for that reason charge them with any deficiency in the rent received and accruing subsequent to such termination.

This, however, we believe to imply too narrow an interpreta- ■ lion of what is meant by “term ” as applied to a lease. In its more comprehensive sense the “term” includes not only the actual •duration of the leasehold estate, but also the period for which that •estate is granted. “ The term does not merely signify the time speci- . fled in the lease; it means that, and more; it means the time in the lease, and the interest conveyed by the lease, and the estate vested in thelessee by the possession.” Wood’s Landlord & Tenant, § 65, p. 103. “ The term of a lease is the period granted to the tenant for occupancy and does not include the time previous thereto, though it includes the estate of the tenant in the land during such period.” Gear’s Law of Landlord & Tenant, § 23. “A term signifies not only the limitation of time, or period granted to the lessee, for the occupation of the premises, but it includes also the estate and interest in the land that pass during such period.” Taylor’s Landlord & Tenant, § 16. “ The term is that period which is granted for the lessee or tenant to occupy and have possession of the premises. It is the estate or interest which he has in the land itself by virtue of the lease from the time it vests in possession.” Young v. Dake, 5 N. Y., 463, 467. “See, also, Evans v. Vaughan, 6 D. & R. (King’s Bench), 349; 4 B. & C. (King’s Bench), 261. As it appears that the period for which the lease was granted had not expired at the time of the termination of defendants’ léase■hold estate by means of the summary proceedings to recover possession we are constrained to hold under the above definition of the “ term ” of a lease that a vacancy contemplated by the parties did occur, and that the defendants are liable for any deficiency in the rent covenanted to be paid by them, remaining after the application of the rent received from a reletting of the premises by the plaintiff .for thoir account, for which the plaintiff is entitled to retain the sum agreed to be deposited as security, and that judgment therefor in her favor was rightfully •awarded.

The judgment appealed from should be affirmed, with costs.

Bookstaver, J., concurs.  