Shenk v. Brewster , 179 N.Y.S. 147 ( 1919 )

Laughlin, J.:

The material facts are stated in the opinion of Mr. Justice Mebrell, but I am unable to agree with his conclusion that the plaintiff’s motion for judgment on the pleadings was properly granted.

If the order stands, it necessarily follows that the plaintiff will be entitled to enter judgment thereon for the relief demanded in the complaint which is not only for the interest but for a repayment of the money deposited with the defendants’ intestate.as security for the payment of the rent and for reimbursement for any expenses or damage incurred or suffered by the landlord through the failure of the tenant to keep and perform each and every of the conditions, covenants and agreements on his part contained in the lease. It is well settled that the plaintiff in an action is not entitled to have a motion by him for a judgment on the pleadings granted, unless on the pleadings he is entitled to judgment for all the relief he demands, for necessarily such a judgment would follow the granting of the motion. If, therefore, the plaintiff was not entitled on the pleadings to recover the money so deposited, his motion should not have been granted even though he may be entitled to recover the interest agreed to be paid on the deposit. I am of opinion that on the pleadings he was not entitled to recover any of the money deposited and, therefore, it is unnecessary to express an opinion with respect to whether or not he may be entitled to recover the interest. Assuming that the plaintiff has fully performed every condition, covenant and agreement, as he alleges, which under the terms of the lease he was required to keep and perform, then by the express terms of the lease, the money deposited was to be applied in payment of the rent for the last two months of the term. It is to be inferred that the action was not commenced until after the expiration of the period for which the premises were rented to the plaintiff and it is alleged that one-half of the amount deposited has been applied in payment of the rent for one of the last two months but that the other half thereof has not been applied in payment of the rent for the other month. As I view the case, however, that does not entitle the plaintiff to recover the one-half of the money deposited which has not been applied in payment of the rent. On the death of the intestate the lease did not terminate. His heirs succeeded to his rights and to the right to the possession and retention of the money for the purposes for which it was deposited and it was their duty as between them and the plaintiff to apply the money so deposited to the payment of the rent as provided in the lease. There was no obligation on the part of the plaintiff, provided he kept and performed his obligations under the lease as he alleges, to make any further payment on account of the rent for the last two months of the period as between him and the intestate and the heirs of the intestate. That rent has been paid by the money so deposited and the defendants are liable to the heirs therefor provided the decedent died before the commencement of the last two months, which, however, is not alleged. It seems quite clear to me that the plaintiff's motion for judgment on- the pleadings should have been denied. I am, therefore, of opinion that the determination of the Appellate Term and the order of the City Court should be reversed, with ten dollars costs and disbursements in this court and in the Appellate .Term, and that the plaintiff’s motion should be denied, with ten dollars costs.

Clarke, P. J., Dowling and Page, JJ., concurred; Merrell, J., dissented.