
    Pietro Anzolone, Respondent, v. Jacob Paskusz, Appellant.
    
      Lease—provision that a deposit may he used to pay rent accruing after a re-entry — it applies where the landlord re-enters in summary proceedings.
    
    A lease contained the following covenants:
    ‘ ‘ Wirst. That if any rent shall be due or unpaid, or if any default shall be made in any of the covenants herein contained, or if the said premises or any part thereof shall be vacated by the said party of the second part during the said term, the party of the first part or her representative may lawfully re-enter tjie 
      
      same either by force or otherwise without being liable'to prosecution therefor, and to remove all persons or property therefrom and to relet the said premises as the agent of the said party of the second part * * "* and receive the rents thereof, applying the same * * *; and then to the payment of the rent due by these presents, with interest, and the balance, if any there be, .to pay over the same to the "Said party of the second part; and any deficiency which may arise the said party, of the second part shall remain liable in full therefor.”
    “ Thirteenth. That the said party of the second part shall, upon the signing, execution and delivery of this indenture of lease, deposit with the said landlord, the said party of the first part, the sum of two thousand dollars. * * Upon any default made by the said party of the second part in the true observance of the terms of the said lease, she, the said party of the first (part), may, at her option, either dispossess, as hereinbefore or hereinafter set forth, the said party of the second part, and any and all parties claiming under him; or resort to the said deposit of two thousand dollars for reimbursement to herself for any and all damages which she may have sustained by reason of-the said breach or breaches on the part of the said party of the second part, or she may pursue concurrently both of the aforesaid remedies; and the said party of the first part may, at her option, irrespective of anything hereinbefore or hereinafter contained to the contrary, apply the said sum of money so deposited in liquidated damages for any such default or breach on the part of the said party of the second part; the said party of the first part so exercising her option the said sum of money so deposited shall at once become forfeited.”
    
      Held, that the word “re-enter,” used in the phrase “ re-enter the same either by force or otherwise,” contained in the 1st paragraph, was not confined in its meaning to a re-entry by the landlord under a judgment in an action of ejectment, but included a re-entry by the landlord after the tenant had been dispossessed from the premises under a warrant issued in summary proceedings instituted for the non-payment of rent;
    That, consequently, the provisions of the lease with respect to the deposit of the §3,000 survived the landlord’s re-entry into the premises pursuant to" such warrant of dispossession.
    Appeal by the defendant, Jacob Paskusz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Benjamin N. Cardozo, for the appellant.
    
      William P. Maloney, for the respondent.
   Patterson, J.:

There is no dispute as to the facts of this case, and a single question of interpretation of the covenants and conditions of a written instrument is presented. At the trial the learned justice presiding submitted the interpretation of those covenants to the jury, which was an erroneous course to pursue, for there was no ambiguity in the instruments nor was there conflicting evidence concerning the. circumstances under which they were executed and upon which a jury might be required to pass to enable the court to construe the instruments, but that consideration is not now material to the consideration of this appeal.

In May, 1899, certain premises consisting of four houses in First avenue, in the borough of Manhattan, belonged to one Liebeskind, who executed and delivered leases thereof to the plaintiff Anzolone, who entered into possession. There were four leases, that is, one for each house. Each of the leases required a deposit, of money as security for the performance of covenants contained therein. In November, 1899, the then owner and lessor conveyed the premises to this defendant and turned over to him the money deposited by the lessee. The defendant receipted for the same and assumed repayment of the money deposited and the fulfillment of the conditions and covenants of the leases binding upon the lessdr. So far as the covenants of the leases relating to the deposit of the moneys mentioned as security are concerned, they may be stated in the words of one of those'instruments:

First. That if any rent shall be due or unpaid, or if any default shall be made in any of the covenants herein contained, or if the said premises or any part thereof shall be vacated by the said party of the second part during the said' term, the party of the-first part or her representative may lawfully re-enter the same either by force or otherwise without being liable to prosecution therefor, and to remove all persons or property therefrom and to relet the said premises as the agent of the said party of the second part * * * and receive the rents thereof, applying the same, firstly, to the payment of such expenses, as she or they may be put to in re-entering, reletting, etc.; secondly, to the payment of any cost or expense that the said party of the first part may be put to, either for repairs or by reason of any condition or covenant being unfulfilled on the part of the said party of the second part; and then to the payment of the rent due by these presents, with interest, and the balance, if any there be, to pay over the same to the said party of the second part; and any deficiency which may arise the said party of the second part shall remain liable in full therefor.”
Thirteenth. That the said party of the second part shall, upon the' signing, execution and delivery of this indenture of lease, deposit with the said landlord, the said party of the first part, the sum of two thousand dollars, and the same when so deposited shall be held and retained by the said party of the first part as security and as and for a guarantee to her for the true, just and faithful performance and observance by the said party of the second part of each and every the terms, conditions, covenants, promises and agreements contained in this indenture of lease to be kept and performed by the said party of the second part until the full expiration of the term and period of five years as specified in this indenture. Upon any default made by the said party of the second part in the true observance of the terms of the said lease, she, the said party of the first (part), may, at her option, either dispossess, as hereinbefore or hereinafter set forth, the said party,of the second part, and any and all parties claiming under him; or resort to the said deposit of two thousand dollars for reimbursement to herself for any and all damages which she may have sustained by reason of the said breach or breaches on the part of the said party of the second part, or she may pursue concurrently both of the aforesaid remedies; and the said party of the first part may, at her option, irrespective of anything hereinbefore or hereinafter contained to the contrary, apply the said sum of money so deposited in liquidated damages for any such default or breach on the part of the said party of the second part; the said party of the first part so exercising her option the said sum of money so deposited shall at once become forfeited. The said party of the second part justly and truly keeping, performing and observing" each and every the terms, conditions, covenants and promises herein contained to be kept and performed on his part, the said party of the first part shall, at and after the complete expiration of the term and period of the said lease and the surrender to her in good condition as aforesaid of the said premises, repay to the said party of the second part the said sum of two ■ thousand dollars, and during the term of said lease the said party of the first part shall'pay to the said party of the second part interest on said sum at and after' the rate of five (5) per cent annually.”

In. July, 1900, this defendant as landlord dispossessed the plaintiff for non-payment of rent by summary proceedings. Thereafter the plaintiff, claiming that the lease was terminated by his expulsion from the premises under the summary proceedings, instituted this action' to recover the amount of the deposits, less the rent due and certain other charges, his action being based upon the theory that, by the terms and provisions of the lease, the .defendant was not entitled to retain any portion of the money deposited as security, for the reason that the covenants with respect to such retention gave no such right unless there were a re-entry by the landlord upon the premises under a judgment in the common-law action of ejectment; and the whole of the plaintiff’s case is predicated upon a claimed presumption that the word i£ re-enter,” as used in the 1st clause of the lease above quoted, is used in its strict common-law meaning. In support of that view it is insisted that this case is controlled by what was held in Michaels v. Fishel (169 N. Y. 381) and that the issuance of a warrant in summary proceedings for the removal of the plaintiff operated to cancel the whole agreement for the use of the premises, as well as to annul the relation of landlord and tenant. It should be further stated that, after the warrant was issued in the summary proceedings, the defendant relet the premises under the permission of the lease; that the lease was for five years from the 1st of May, 1899,.and that this action was begun on February 1, 1901. It is also in evidence that the reletting of the premises by the defendant was at a much reduced rent.

The precise question involved here is properly formulated by the learned counsel for the appellant, and it is, whether the provisions of the lease with respect to the deposit were intended to survive the issuance of a warrant in summary proceedings. If the word “ re-enter,” as used in the 1st clause of the lease above quoted, is to have nothing more than its ordinary common-law signification, then it is apparent that the covenants as to the deposit did not survive the issuance of the warrant. In Michaels v. Fishel (supra) it was held, with a very strong dissent, that the use of a purely technical term, when found in the midst of quaint- words of ancient leases, gives rise to the presumption that the parties used it with its strict •common-law meaning. There the word “ re-enter ” was used in a lease reserving to the lessors the right upon default “ into and upon the said premises * * * to re-enter and * * . * the same to have again * * * as in their first and former estate,” and upon which re-entry depended a covenant by the lessee to pay any-■deficiency arising upon the reletting of the premises by the lessors, -and it was held that the word meant a re-entry in its technical sense us known to the common law. We must accept that as a binding .adjudication, but, as was pointed out by Hatch, J., in Baylies v. Ingram (84 App. Div. 360), the rule stated there merely relates to a presumption in a particular case and under special circumstances.

Although there may be a strict rule of law applicable generally to the construction of covenants in leases, yet, where from a survey •of the whole instrument it appears that the parties intended that the strict rule should not apply, force will not be given to it. Modus et cooiventio vincuovb legem. In this case the parties to the ■original leases- plainly indicated what they meant by the word '“ re-enter,” and with that expression of their intehtion the technical common-law meaning of the word as used in ancient instruments is displaced. Here the word “re-enter” in the 1st clause is associated with other words, which indicate that the re-entry contemplated means repossession. The words are, “ re-enter the same -either by force or otherwise.” The association of the word “otherwise ” with the word “ re-enter ” sufficiently indicates that it does not mean a re-entry under one single method, as in an action of -ejectment. The word “otherwise” necessarily broadens the signifi-cation of the word “re-enter” and prevents its limitation to the technical definition of f^hat word.

So, in the 13th clause, reference is made to a default of the lessee, upon which the lessor may “ either dispossess as hereinbefore or hereinafter set forth,” or resort to the deposit or pursue concur:rently both of the aforesaid remedies; and in the same clause it is provided that at the complete expiration of the term and period of the lease the lessor, under conditions, shall surrender the deposit. 'The construction we give to the word “ re-enter,” as contained in the 1st clause of the lease, disposes of the argument of the learned counsel for the respondent that the word .“dispossess,” as used in the 13th clause, relates only to an action of ejectment. Our' view is that the word “dispossess,” as used in the 13th clause, construed in connection with the scope and meaning we give to the word “ re-enter ” in the 1st clause, indicates that the parties intended that it should have the signification which is now attached in law to-that word, which includes removal from premises by the remedies-now afforded to a landlord to regain or reacquire possession for the non-payment of rent by his tenant.

Therefore, we think the plaintiff was not entitled to maintain this action when it was instituted, and that the defendant may retain, these deposits as security.

The judgment and order should, therefore, be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, J,I.,, concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  