
    Sydney Bevin et al., Respondents, v. Henry Steers Sand & Gravel Company, Inc., Defendant, and Henry Steers, Inc., Appellant. (Actions Nos. 1 and 2.)
    (Argued February 28, 1927;
    decided March 29, 1927.)
    
      Landlord and tenant — lease — real property — lease of land with privilege to remove sand and gravel at fixed rate per square yard but providing for minimum rental irrespective of amount removed — removal and payment for material in excess of amount of minimum rental for term — exhaustion of deposit and removal of lessee giving notice of cancellation —• action by landlord to recover minimum rent reserved.
    
    
      Bevin v. Steers Sand & Gravel Co., Inc., 218 App. Div. 502, affirmed.
    Appeal, in each of the above-entitled actions, from a judgment entered December 22, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant-appellant, entered upon a dismissal of the complaint by the court at a Trial Term and directing judgment in favor of plaintiffs. The actions were to recover rent alleged to be due under a lease of lands for a term of years with the privilege to remove sand and gravel from the premises, the rental to be ten cents per cubic yard for all sand and gravel removed with a fixed minimum rental of $6,000 a year whether sand and gravel were removed or not. The lessee entered upon the premises, removed and paid for sand and gravel in an amount exceeding the minimum rental for the entire term, and, notifying plaintiffs that the sand and gravel were exhausted and it elected to cancel the lease, removed from the premises about three years and five months prior to its termination. The Appellate Division held that the lease was clear and unambiguous and by its terms the lessee was bound to pay the minimum rent for each year of the term whether- the sand and gravel were exhausted or not, and that the payments for material removed in excess of the minimum during the years of occupancy by the lessee could not be credited as payments of the minimum rent reserved for the subsequent years:
    
      Charles L. Woody for appellant.
    
      Sidney W. Davidson, Deber Smith and Leslie D. Dawson for respondents.
   Judgment, in each action, affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  