Hermitage Co. v. Levine

McAvoy, J.

The opinion of Mr. Justice O’Malley fully sets out the facts on which the plaintiff’s cause is based, and we concur in his view that the trial court was not justified in directing a verdict for defendant on the ground that the landlord operated a part of the building as a garage for a short period after the tenant’s dispossession from the premises and his abandonment of the automotive cars stored therein. But we find the clause allowing a reletting of the premises after such dispossession of the tenant for his account and a right of recovery of damages arising from such reletting, includes such damage as accrues through a loss of rental each month of the balance of the term, and that a cause arises at each period of payment of rental under the lease when' a deficiency ensues.

It is our view, from the nature of the terms of the clause in question, that it was not intended to cover damages at the end of a long term for breach of the covenant to pay rent, but was intended to give an immediate right of action for deficiency of rentals from the amount provided in the lease, whenever that deficiency arose. This is apparent to us from the phrase “ damages * * * through such entry or reletting ” at the end of the clause which points to a loss of rental as “ such ” damages to be recovered under the lease and intended to survive eviction, abandonment or dispossession of the tenant. “ Each covenant must be taken as we find it.” No clause in any lease involved in any cited case sounds a contrary note.

We, therefore, conclude that the judgment should be reversed, with costs, and judgment directed for the plaintiff for the amount demanded in the complaint, with costs.

Merrell and Finch, JJ., concur; Dowling, P. J., and O’Malley, J., dissent.