
    Pinkus Nathan, Respondent, v. The Gendron Iron Wheel Co., Appellant.
    (City Court of New York, General Term,
    October, 1896.)
    Lease — Damages.
    Where a lease, among other things, provides that if the tenant does not pay his rent or makes default in any manner, the landlord may re-enter and relet the premises as agent of the tenant and hold the tenant for any deficiency and for any damage that may be caused by or through such entry or reletting, and the tenant abandons unjustifiably, and the landlord relets, the latter is entitled to recover as damages for the breach, by the tenant, of the covenants in the lease, as much as the rent stipulated in the lease. And where the landlord does his best in securing a new tenant the former tenant must pay any deficiency.
    
      Appeal from judgment entered in favor of plaintiff by direction of the court.
    J. D. Townsend, for appellant.
    T. C. Campbell, for respondent.
   Schuchman, J.

This is an appeal from a judgment entered in favor of the plaintiff by the direction of the court on the trial.

The plaintiff in his complaint set up a cause of action for two months’ rent, to wit:. February and March, 1894, which he claims were due under a written lease given to the defendant for the term of ten years commencing April 1, 1893, and ending April 1, 1903.

The defendant in its answer sets up that on January 31, 1894/ it abandoned the premises and that on or about February 15, 1894, the plaintiff relet thé premises to. one L. Abraham for a term of years.

The proofs on the trial show that two written leases, the one made to the defendant and the other made to said L. Abraham, were offered and without objection accepted in evidence.

The lease to the defendant contained the following clause: Subdivision 10:—“And the lessee hereby agrees to pay the said yearly rent as above stipulated, without any deduction, fraud or delay, it being understood that in case of nonpayment of the rent at the times and in the manner above provided, or if default shall be made in any of the covenants or agreements herein contained, the said lessor and his legal representatives shall have the right to enter the said premises, either by process of law or otherwise, and to relet the same premises as the agent of the said lessee, and to receive the rent therefor, applying the same to the payment of the rent due by these presents, and holding the lessee and its legal representatives liable for any deficiency, and for any damage that may be caused by or through such entry or reletting.”

The lease made to L. Abraham bears date February 10, 1894, and provides for a term of five years from April 1, 1894.

Ho fault was found at the trial by the defendant with the cause of action as brought, and the evidence containing all the necessary facts to base the judgment on, no interference therewith can be had on this appeal by reason of the form of action.

The plaintiff was entitled to recover damages for the breach of the covenants in the lease. These damages were as much as the rent stipulated in the lease.

Neither one of the attorneys herein have cited any authorities in support of their respective contentions; therefore, we simply state our views.

The defendant was liable for the term of ten years to pay rent under the covenant contained in its lease.

When the defendant abandoned the premises the plaintiff had a right to re-enter, and under the tenth clause contained in the lease to relet the premises at the best terms he could secure and he had a right to select a good and proper tenant.

The evidence adduced at the trial shows that the landlord did the best he could in securing a new tenant.

The evidence offered by the defendant on the trial was insufficient to raise any question of fact to be submitted to the jury.

The burden of proof to do so was on him.

The court, therefore, was right in refusing to submit the question to the jury as requested by -the defendant’s attorneys, and the plaintiff was entitled to a direction by the court. Hall v. Gould, 13 N. Y. 127.

Judgment affirmed, with costs.

Váh Wyck, Oh. J., and Eitzsimons, J., concur.

Judgment affirmed, with costs.  