Michaels v. . Fishel , 169 N.Y. 381 ( 1902 )

Bartlett, J.

(dissenting). Beading all of the provisions of the lease together they amount to this, in substance: The lessee agreed that if he failed to pay the rent the lessors might re-enter premises and rent the same for his account, he to pay any deficiency existing at end of term. This contract in no way offends against public policy, and should be sustained, if possible.

While the term “re-enter” may be given its narrow and technical meaning at common law, which is re-entry by ejectment, I favor a broader construction, to the effect that any legal remedy could be z invoked by the landlords to “ re-possess and enjoy ” their former estate, to quote the language of the lease.

It seems a scant measure of justice to inflict upon these landlords a loss of many thousands of dollars when they hold the tenant’s covenant of indemnity against it.

An ejectment suit meant years of litigation, vacant premises and great loss to either the landlords or the tenant.

Summary proceedings meant a speedy rental of the premises which would reduce the ultimate loss that was hound to occur.

The intention of the parties is clear, and it ought to control ; form should give way to substance.

I vote for reversal.

Gray, Martin and Werner, JJ., concur with Vann, J.; Parker, Gh. J., and Cullen, J., concur with Bartlett, J.

Ordered accordingly.