Seymour v. Warren , 93 N.Y.S. 651 ( 1905 )

Gaynor, J.:

After taking the property away from the defendants and into her own charge, the plaintiff collected the rents, paid the charges for the rest of the contract term, and having also charged the defendants with the $75 a month which they agreed to pay her, claims that they are liable to her for the deficiency as damages for their breach of the contract in refusing to continue to pay her the said $75 a month. By taking the properly away from the defendants and into her own charge the plaintiff rescinded the contract, and thereby lost her right of action for damages for the breach by the defendants (Morris v. Rexford, 18 N. Y. 552; Kinney v. Kiernan, 49 id. 164; Graves v. White, 87 id. 463; McCreery v. Day, 119 id. 1; Eames V. B. Co. v. Prosser, 157 id. 289).

Counsel for the plaintiff now claims that at all events the . monthly payment of $75 for February, 1899, had already accrued before the plaintiff ended the contract; and that the $440 she paid for the year’s taxes was also then due to her and is recoverable in this action.

No such point or claim was made for plaintiff on the motion to dismiss, and that would suffice for not entertaining it now. But, in addition, the $7 5 was not due at the rescission, which was in the middle of February. The contract did not fix a day in the month for its payment, and hence it was not due until the end of the month. And as to the $440, it was voluntarily paid by the plaintiff in variation or change of the contract, and cannot be recovered hack (Oregon P. R. R. Co. v. Forrest, 128 N. Y. p. 90).

Inasmuch as no monthly payment was due at the time the plaintiff took the property away from the defendants, there is a question whether there was any breach by them.

The motion for a new trial is denied.