
    James O’Brien, Respondent, v. Saul Levine and Saul Sachar, Appellants.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Landlord and tenant — Rent and advances — Rights and liabilities — Deposits and other security; Tender of payment: Termination of relation — Breach of covenant or condition.
    Where a tenant makes a deposit for his faithful performance of a lease which provides that if he shall abandon any part of the premises the landlord or his representatives may re-enter and re-let the same as his agent, receive the rent and apply it to the payment of the expenses of the re-entry and then to the payment of the rent due, the balance, if any, to be paid to the tenant who shall remain liable for any deficiency, the landlord, upon resuming possession after the tenant’s default in payment of-the rent and vacation of the premises, is entitled to retain the deposit until the end of the term.
    The lease having provided that the tenant should do all inside and outside repairing, a check, sent by him upon the due day and promptly returned by the landlord, for less than the amount of the monthly rent, he claiming the balance to be due for repairs made after his term began, is not a payment of the rent.
    A provision in the lease that in- case of any default by the tenant the landlord should have the right to collect rents from the subtenants and that the lease should then become canceled gives the landlord the option of declaring the lease canceled if the tenant makes default, but does not give the tenant the right by making a default to assert that the lease is canceled.
    
      Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, Fourth District, borough of Manhattan.
    Poliak & Deutseh, for appellants.
    Guiseppe L. Maggio, for respondent.
   ' Truax, J.

The facts in this case are substantially undisputed. The plaintiff, by written lease, rented from the defendants certain premises in this city for the term of four years and eleven months from September 2, 1905, at an annual rental of $2,000, payable in monthly installments of $166.66 on or before the 15th of each and every month, in advance. At the same time the plaintiff deposited the sum of $333.33 to be held by the defendants “ as security for the faithful performance of this lease by him. If all the conditions in this lease be performed by said tenant, said security will be returned to him at the time of the expiration of the term of this lease with interest, etc.” The lease also contained these clauses: “Eighth: That if the said premises, or any part thereof shall become abandoned by the tenant the landlords or their representatives may re-enter the same either by force or otherwise * * * and re-let the said premises as the agents of the said tenant and receive the rent thereof applying the same first to the payment of such expenses as they may be put to in re-entering and then to the payment of the rent due by these presents the balance if any to be paid over to the tenant who shall remain liable for any deficiency.

“ In case of any default by the tenant in any of the covenants herein said landlords or their agent to have the right to collect rents from the sub-tenants and this lease shall then become cancelled. Said tenant does hereby waive any and all legal proceedings for the cancellation of this lease.”

The tenant defaulted in payment of the rent for the month of October, 1905, which was due on the 15th of that month. Subsequently, and about Movember 1, 1905, the defendants took possession of the premises and proceeded to collect the rents of the sub-tenants.

On November 18, 1905, the plaintiff began this action to recover the amount of his deposit, less the rent due from October fifteenth to November fifteenth, and recovered a judgment for the difference between the sum deposited and one month’s rent.

The defendants in their answer pleaded a forfeiture of the security and also that they had a right to retain- the amount of the deposit until the expiration of the term named in the lease. Upon the trial the claim of forfeiture was abandoned, and the only question presented upon this appeal is the right of the defendants to retain the deposit aforesaid until the end of the term.

Under the testimony I am of the opinion that the contention of the defendants is correct.

The defendants instituted no summary proceedings, but simply resumed possession of the premises after the plaintiff’s default in payment of rent.

It is claimed by the plaintiff that he was forcibly ejected from the premises by the defendants. This is not sustained by the evidence. The plaintiff on the due day sent his check concededly for less than the amount of rent due, claiming the balance to be due him for repairs made after his term began, although the lease provided that he should “ do all inside and outside repairing.” This check was not payment and was promptly returned. On October twenty-first the plaintiff saw Saul Levine, one of the defendants, who, he testified, told him (plaintiff) “ If I didn’t give the full month’s rent I ought never to stay any more, and if I didn’t go away they would try to have me arrested. They told me to go out right away and gave notice to the tenants not to pay me.” This was substantially disputed by Levine, who testified that the plaintiff, on October twenty-second, insisted upon giving his check for $134 and claimed allowance of a bill for repairs for $32, which was refused, and that, upon November first, (Levine) took possession of the premises and began to collect the rent of the tenants.

Assuming plaintiff’s testimony to be true, he was not forcibly evicted. He knew, on October fifteenth, his rent was due. Concededly he has never paid it. After his conversation with Levine, he immediately left the premises, and did so voluntarily and without cause. By the eighth clause of the lease above quoted, the landlords had. a right to re-enter the premises, if abandoned, and relet the same as agents of the tenant; and it must be presumed that they are in possession of the premises in pursuance of the conditions of the lease and for the purposes therein specified. The clause in the lease reciting “in case of any default by the tenant in any of the covenants herein said landlord to have the right to collect rents from the sub-tenants and this lease shall then become' cancelled ” simply gives the landlord the option of declaring the lease cancelled'if default on the part of the tenant occurs and does not give the tenant the right, by making a default, to then assert that the lease is cancelled.

The theory upon which the courts have required the return of deposits under somewhat similar clausfes contained in leases has been that such leases have been terminated, and such- termination has been shown by the taking of summary proceedings in which the issuing of a warrant “cancels the agreement for the use of the premises.” Code Civ. Pro., § 2253. Of course, in the absence of an agreement, a reentry and reletting on the part of the landlord would operate as a surrender and acceptance of the premises (Underhill v. Collins, 132 N. Y. 269), but such is not this case.

Scott and Bischofe, JJ., concur.

Judgment reversed and new trial ordered,, with costs to appellants to abide event.  