
    Simon J. Harding, Respondent, v. Henry W. Austin, Appellant.
    
      ■landlord and tenant—clause making the tenant liable in case he vacates thepremises for any deficiency arising on the reletting of the property, construed.
    
    A lease for one year from October 1, 1902, provided that the rent should be paid monthly in advance on the first day of each month during the term. It also provided “That in case of default in any of the Covenants, the Landlord may resume possession of the premises, and relet the same for the remainder of the term, at the best rent that can obtain for account of the Tenant, who shall make good any deficiency.”
    The tenant moved out of the premises on July 1, 1903, without paying the rent due on that day. On September 1,1903, the landlord relet the premises.
    
      Held, that as the rent payable July 1, 1903, had become due before the landlord re-entered, the landlord’s right to recover such rent was not affected by the re-entry clause;
    
      Semble, that as the re-entry clause did not provide for the monthly ascertainment or payment of any deficiency arising upon the reletting of the premises, the landlord would not be entitled to recover any portion of such deficiency until the entire amount of such deficiency was ascertained, i. e., until the expiration of the term of the lease.
    Appeal by the defendant, Henry W. Austin, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 25th day of September, 1903.
    
      C. E. Sutherland, for the appellant.
    
      Harrison C. Glore, for the respondent.
   Willard Bartlett, J.:

This is an action for rent. The complaint set out the execution of a lease between the parties whereby the plaintiff rented to the defendant an apartment in the borough of Brooklyn for three hundred and twenty-four dollars a year, payable in equal monthly payments of twenty-seven dollars each in advance on the first day of each and every month during the term of the letting, which was one year from October 1, 1902. It further alleged that on July 1, 1903, the sum of twenty-seven dollars became due and payable under such lease for rent from that date until the first of August following; and that no part of such sum had been paid. ' Judgment therefor was accordingly demanded. The answer pleaded (1) a surrender of the premises and the acceptance of such surrender by the plaintiff on or about July 1, 1903 ; (2) that under a defeasance clause contained in the lease no rent was due or payable unless it appeared that there was a deficiency, which could not be ascertained until the end of the term ; and (3) that the defendant was induced to enter into the lease by false representations in regard to the character of the premises.

The plaintiff has recovered judgment for the twenty-seven dollars rent which was payable in advance under the terms of the lease on July 1, 1903.

The proof did not sustain either the first or third defense set up in the answer. The only important question raised upon the trial or presented by this appeal relates to the effect of the 6th covenant in the lease, which reads as follows: “ That in case of default in any of the Covenants, the Landlord may resume possession of the premises, and re-let the same for the remainder of the term, at the best rent that can obtain for account of the Tenant, who shall make good any deficiency, and any notice in writing, of intention t® 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 Hay 13th, 1846, is expressly waived.”

The defendant moved out. of the premises on July 1, 1903, and the plaintiff, on the first of the September following, two months after the defendant had left, and one month before the expiration of the lease, relet the apartment. It is contended in behalf of the defendant that this conduct on the part of the plaintiff precludes him from maintaining any action upon the lease until the expiration of the term. This position is not tenable, so far as the rent payable in advance July 1, 1903, is concerned. This rent had become due before the plaintiff re-entered the premises and while the lease was in full force, and the right to recover the amount is in no wise affected by the plaintiff’s subsequent entry under the defeasance clause. (McCready v. Lindenborn, 172 N. Y. 400, 406.) That re-entry put an end to the relation of landlord and tenant. In the case cited the defeasance clause authorized the lessor to relet the premises and required the lessee to pay any deficiency in equal monthly payments as the amount thereof should be ascertained from month to month; and it was held by the Court of Appeals that while under this contract no further rent as such could accrue, a separate and independent cause of action arose every month when a deficiency had been ascertained in the manner provided. There is no provision for the monthly ascertainment of any deficiency or the monthly payment thereof in the lease under consideration in the case at bar, and it would seem, therefore, that the enforcement- of any right of action against the lessee for such deficiency as there might be upon the reletting of the premises by the landlord tinder the defeasance cla'use would have to be postponed until the amount of such deficiency was ascertained at the end of the term fixed by the lease. But however this may be, the judgment, which is only for the July rent and not for any deficiency, is right and should be affirmed.

All concurred.

Judgment of the Municipal Court affirmed, with costs. 
      
       See Laws oí 1846, chap. 274, § 8, now contained in Code Civ. Pioc. § 1505.— [Rep.
     