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Second Department, March, 1910.

[Vol. 137. began on May 1, 1909. On May 22, 1909, plaintiff served a notice upon the defendants to quit the premises, but as the defendants continued in possession the plaintiff brought summary proceedings, tried on June 7, 1909, which resulted in a judgment for the plaintiff. The defendants were removed on or about June 11, 1909. This action is brought to recover $75 rent for that month of June. The defendants insist, first, that the plaintiff failed to prove that the rent was payable in advance. The plaintiff, however, testifies without contradiction that when the premises were rented there was the agreement that if they were to continue as monthly tenants the rent should be paid on the first day of each month. The plaintiff further insists that as the relation of landlord and tenant was terminated at the plaintiff's election, the landlord could not recover rent after such termination. I think that this case is within the purview of section 2253 of the Code of Civil Procedure, which reads as follows: "The issuing of a warrant, for the removal of a tenant from demised premises, cancels the agreement for the use of the premises, if any, under which the person removed held them; and annuls accordingly the relation of landlord and tenant, except that it does not prevent a landlord from recovering, by action, any sum of money, which was, at the time when the precept was ssued, payable by the terms of the agreement, as rent for the premises; or the reasonable value of the use and occupation thereof, to the time when the warrant was issued, for any period of time, with respect to which the agreement does not make any special provision for payment of rent." Thus it will be seen that the issue of the warrant cancels the agreement and annuls the relationship of landlord and tenant, except that it does not prevent the landlord from recovering by action any sum of money which was at the time the precept was issued payable by the terms of the agreement as rent. Mr. Throop's note to the said section is: "The first sentence has been taken from id., § 43,* remodelled and amended by adding the final clause. It covers also, in its present form, § 60,* added to the R. S. by L. 1868, ch. 764 (7 Edm., 336). The remainder of the section is new in form; but it is in accordance with the construction given to the original in Hinsdale v. White, 6 Hill, 507; McKeon v. Whitney, 3 Denio, 452; Crane v.

*See 2 R. S. 515, § 43; R. S. pt. 3, chap. 8, tit. 10, § 60.-- [REP.

App. Div.]

Second Department, March, 1910.

Hardman, 4 E. D. Smith, 339; Cushingham v. Phillips, 1 id. 416; Davison v. Donadi, 2 id. 121; Whitney v. Meyers, 1 Duer, 266; except that this section settles the doubt left by those cases respecting rent due in advance. It seems only just that the issuing of a precept should bar any subsequent claim for advance rent. With respect to a claim for use and occupation the rule should be different; and accordingly the issuing of the warrant has been fixed as the time for the termination of such a claim." If $75 for the month of June was by the terms of the agreement payable as rent on the first day of that month, it was payable as rent before the precept was issued, hence the statute cited must control. (See Michaels v. Fishel, 169 N. Y. 391.) The debt remained due, although the lease was terminated by the dispossession. (Cushingham v. Phillips, 1 E. D. Smith, 416, citing Hinsdale v. White, 6 Hill, 507.) I think that the judgments of the Appellate Term in McNulty v. Duffy (59 N. Y. Supp. 592) and Martin v. Lee (29 Misc. Rep. 333) are right, and that the rule there laid down should be applied in this case. The late Justice MCADAM, an eminent authority on the Law of Landlord and Tenant, animadverts on the judgment in McNulty v. Duffy (supra) (3 McAdam Landl. & Ten. [3d ed.] 116), and, pushing the principle to the extreme, asks whether it could be possible that, if a tenant leasing premises for years with rent payable yearly in advance, make default in the first payment, the landlord could, on the fourth of the same month, dispossess him under a warrant which by express command of the statute cancels a lease, and then recover in an action the entire year's rent in advance? So far as the criticism is based upon cancellation by the statute, I think that it overlooks the fact that, although the statute cancels the agreement and annuls the relation, yet by exception it assures affirmatively the very right to the landlord which is criticised. And so far as the criticism suggests hardship, accentuated by the extreme example, that hardship comes from a default of the sufferer in his contract, of which the terms were presumably within his own control when he made it.

The judgment is affirmed, with costs.

WOODWARD, BURR, THOMAS and RICH, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.

Second Department, March, 1910.

[Vol. 137.

PATRICK H. MORRISON, Appellant, v. AMELIA BRENMOHL and JUL. WM. BRENMOHL, Respondents, Impleaded with ELIZABETH C. SEAMAN.

Second Department, March 31, 1910.

Real property-specific performance - indefiniteness of description— parol evidence.

A suit for the specific performance of a written contract to sell lands should not be dismissed upon the ground that the description of the lands is indefinite where they are stated to be a "place at Moriches, on the north side of old County Road, being about twenty-five acres, including buildings."

The court will construe the words as referring to realty owned by the vendor at the time of the contract, and parol evidence is admissible to identify the specific realty.

Neither should such suit be dismissed because a provision requiring the vendor to accept a purchase-money mortgage does not state the term of the mortgage, for, it seems, parol evidence is admissible to show the duration of the term, and in any event a mortgage need not state the time of payment, in which case the debt is payable on demand.

APPEAL by the plaintiff, Patrick H. Morrison, from a judgment of the Supreme Court in favor of the defendants, Amelia Brenmohl and another, entered in the office of the clerk of the county of Suffolk on the 3d day of May, 1909, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits as to said defendants.

William McArthur [August Dreyer with him on the brief], for the appellant.

John R. Vunk, for the respondents.

JENKS, J.:

This action is by a purchaser of lands for a specific performance, who appeals from a judgment of the Special Term for his dismissal on the merits as to the sellers. The judgment was entered upon motion of the defendants at the opening of the case and decided upon the sole ground that the description in the memorandum was insufficient. The memorandum was as follows:

App. Div.]

Second Department, March, 1910.

"MORICHES, March 17th, 1906. "Received from P. H. Morrison the sum of One hundred dollars, as deposit on sale of place at Moriches, on the north side of Old County Road, being about twenty-five acres, including buildings. The purchase price is Fifteen hundred dollars, to be paid as follows: One hundred dollars on signing this agreement, receipt of which is hereby acknowledged. Ten hundred dollars to be paid on delivery of deed on October 1st, 1906. Balance Four hundred dollars to remain on bond and mortgage at five per cent.

"AMELIA BRENMOHL.
"JUL. WM. BRENMOHL."

We may construe the words used as relating to realty owned by the subscribers at the time of their subscription. (Hurley v. Brown, 98 Mass. 545, cited in Miller v. Tuck, 95 App. Div. 137; Scanlan v. Geddes, 112 Mass. 15.) I think that parol evidence was admissible to enable the court to identify the specific realty covered by this memorandum. For the plaintiff might have shown that the said defendants owned only one place in or at Moriches, on the north side of the old county road of about 25 acres, with buildings thereon. In Mead v. Parker (115 Mass. 415) the court say: "It is not a question of the sufficiency of the writing under the Statute of Frauds, so much as it is of the right to resort to parol evidence in aid of the writing, where an ambiguity exists in respect to the property intended to be sold, or to which the contract relates. The most specific and precise description of the property intended requires some parol proof to complete its identification. A more general description requires more. When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they were when the negotiations took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement. That parol evidence is competent to furnish these means of interpreting and applying written agreements is settled by the uniform current of authorities. (Baker v. Hathaway, 5 Allen, 103; Farwell v. Mather, 10 Allen, 322; Putnam v.

Second Department, March, 1910.

[Vol. 137. Bond, 100 Mass. 58; Stoops v. Smith, 100 Mass. 63, and cases there cited; 1 Greenl. Ev. §§ 286, 288.)" The rule as to the admission of parol evidence that must obtain in this case is most elaborately discussed by BARTLETT, J., writing for the court, in Miller v. Tuck (supra). (See, too, Levin v. Dietz, 106 App. Div. 208; Daniels v. Rogers, 108 id. 338; Wood Stat. Frauds, 353; Scanlan v. Geddes, supra; Phillips v. Hooker, 1 Phil. Eq. [N. C.] 193; Owen v. Thomas, 3 M. & K. 353; McMurray v. Spicer, L. R. 5 Eq. 527; Pom. Spec. Perf. § 90, p. 129, note 2.) In Daniels v. Rogers (supra) the description was "the property known as the Star and Crescent Furnace, in Cherokee County, near Rusk, Texas." In Mead v. Parker (supra) the description was "a house on Church Street." In Phillips v. Hooker (supra) "her house and lot north of Kinston." In Owen v. Thomas (supra) "the house in Newport." In McMurray v. Spicer (supra) "the mill property, including cottages in Esher village." A reading of the memorandum shows that the price is definitely stated, with the exception that the time of payment of the mortgage, a part only of the consideration, is not defined. I am inclined to the opinion that parol evidence would be admissible to show the period of the proposed mortgage. (See Pom. Spec. Perf. § 93.) But in any event a mortgage may be made without specification of the time of payment, whereupon the debt is payable on demand. (Jones Mort. § 75.)

The judgment is reversed and a new trial is granted, costs to abide the final award of costs.

BURR, THOMAS, RICH and CARR, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.

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