Bodner v. Crecco , 119 N.Y.S. 223 ( 1909 )

PER CURIAM.

There is no dispute as to the facts of this case, and defendant" introduced no evidence. One Baum and one Lapin, as owners of certain premises, leased a portion thereof to one Ressler from November 1, 1902, to November 1, 19.07, at a rental of $80 a month. Under the lease the said Ressler deposited with Baum and Lapin $160 as security for the faithful performance of the covenants of said lease by Ressler, and it was stipulated that the said sum, so deposited, was “to be applied to the payment of the last two months’ rent of the term herein, provided all conditions and covenants have been complied with.” Said Ressler assigned all his rights and interest in said lease to one Fiedler, who, in turn, assigned all his rights and interest therein to the plaintiff. Meanwhile said Baum and Lapin conveyed the entire premises to one Pittelli and one Barbieri, with the express stipulation in the deed that such conveyance was subject to the lease in suit, above mentioned, and thereafter said Pittelli and Barbieri leased the entire premises to defendant, with an express stipulation that such letting was subject to the said lease in suit. In the said" lease from Pittelli and Barbieri to defendant appears also the following agreement: .

“* * * And the landlords hereto hereby agree that, they will turn over to said Crecco [defendant] the sum of $160, which is to be paid by the lessee of said store and basement as security for the payment of his rent unto said Crecco, who shall hold the same as security as aforesaid.”

It therefore appears that defendant was placed toward plaintiff in the same position as that occupied by Baum and Lapin toward Ressler, so far as this lease and deposit were concerned. Plaintiff, by mistake and in ignorance of his rights, paid the last two months’ rent, which was to have been paid, under the terms of th£ lease, by the said ■deposit, if the lessee had fulfilled all his obligations under the lease. The plaintiff sues to recover the $160 so paid by mistake for the rent of the last two months. The court dismissed the complaint for failure of proof. Plaintiff appeals. .

While it is true that a covenant to return a deposit is not one that runs with the land, but is a personal one, still that doctrine does not apply here, as by express agreement defendant received this deposit of $160 to be applied to the payment of the last two months’ rent, and for no other purpose; and, as that rent has been paid under mistake "by plaintiff, he is entitled to recover it back, since by the deposit defendant had already been paid the rent for those two months. This action for money had and received was properly brought.

■ The only failure of proof was with respect to the omission of plaintiff to show affirmatively that he had fulfilled all the conditions of the lease. He alleges such fulfillment by Ressler, Fiedler, and himself, which allegation is denied by the answer. It was, therefore, incumbent upon plaintiff to show such fulfillment, as it was a condition precedent to plaintiff’s right to have the said deposit applied on the payment of rent, as aforesaid. The justice was right, therefore, in holding that there was a failure of proof.

The judgment must be affirmed, with costs, but without prejudice to another action.