#### Nathan Bernstein, Respondent, *v.*Ernestine Heinemann et al., Appellants.

(Supreme Court, Appellate Term,

May, 1898.)

1. Lease — Effect of a person, not a party, signing a renewal lease — Surety. ' . >

One who signed a renewal lease, in which his .name was not nientioned (upon his contention, as a'mere witness), cannot, in.the absence of any accompanying or explanatory words, be held liable as a principal; nor as a Surety, Where no consideration for such an obligation is expressed in the instrument. ' ■ , '

2. Same —■ Bent payable in advance, followed by dispossession during the term. |

Where rent is payable in advance, a tenant dispossessed duritíg rhe . month for nonpayment, is liable for the rent of the entire month.

3. Same — Deposit for security — When a counterclaim to rent due.

Where it is understood between parties that a deposit, made by the tenant, is intended to secure the landlord only for rent and for such repairs as the tenant fails to make, she may counterclaim, her deposit -against rent due, although the instrument, under which the deposit - was made,- states that the security shall “ be forfeited for the nonperformance in its entirety of said lease

Appeal by the defendants from a ijudgment of the' Municipal Court of the City of Mew York, borough of Manhattan, fourth district, rendered in favor of the plaintiff, by the justice thereof, without a jury, ....... ¡

The nature of the action and the material facts are stated in the opinion.

August P. Wagener, for appellants.

N. S. Levy, for respondent.

Giegerich, J.

This action was brought to recover the sum of $65, for one month’s rent alleged to be due from the defendants on the 1st day of September, 1897, under a written lease bearing date April 21, 1895, of “the rooms in the front house over, the store known as Mo. 130 Forsyth'street in thé city, county and state of Mew York,” made and executed by the plaintiff, to the defendant *465Ernestine Heinemann for the term of one year from May 1, 1895, at the yearly rent or sum of $900, payable monthly in advance on the first day of each month, and written renewals thereof, as hereafter mentioned.

The sum of $7 5 was deposited with the plaintiff “ as security for the payment of rent as per lease dated April 21, 1895, for premises Ho. 130 Eorsyth street in the city of Hew York, said security to be forfeited for the nonperformance in its entirety of said lease.” And it was further understood between the parties, that in case of failure on the part of the lessee to make repairs, or to do the cleaning required on her part, the lessor might cause the same to be done and deduct the amount expended from the sum so deposited.

On the 2d day of September, 1897, summary proceedings were instituted by the plaintiff herein, as landlord against the said defendant Ernestine Heinemann, as tenant, for the recovery of the possession of the premises in question for nonpayment of one month’s rent alleged .to have become due and payable on said 1st day of September, 1897, and on the 8th day of September, 1897, a final order in favor of the former was made upon default of the latter on the retimEof the precept..

A warrant was issued, but the tenant voluntarily removed from the demised premises during the pendency of the proceedings.

The plaintiff then brought this action, but for some reason not accounted for, the sum of $65, only, is demanded instead of $75, called for by the lease. The pleadings are oral. The answer is a general denial, and sets up eviction, and a counterclaim for the sum deposited, as before stated.

The only proof connecting the defendant Bernard Heinemann with the transaction is the last renewal indorsed upon the face of that portion of the lease, termed “Tenant’s Agreement,” held by the plaintiff and admitted in evidence upon his offer. The same reads as follows: “ This lease extended for one year from May 1, 1897, to May 1, 1898, with same conditions.”

> (Sg) Ernestine Heinemann,”

> (Sg) B. Heinemann.”

> *'Witness*

> H. Bernstein.”

A duplicate of such renewal, written upon that portion of the lease termed “Landlord’s Agreement,” and signed by “H. Bem*466stein, and B. Heinemann ” only, was admitted'in evidence upon the defendants’ offer. A prior extension was executed in duplicate, one being signed by the defendant Ernestine Heinemann, and the other by the plaintiff.

The defendant Bernard Heinemann testified that at the time he signed the paper writing, the plaintiff told him he wanted the signature of a witness, and at his request signed it ,as a witness, and ■ not as principal-. The plaintiff denied having made such a request, but the fact that the defendant 'Bernard Heinemann and the plaintiff both signed the last renewal in duplicate, while the defendant Ernestine Heinemann signed but one instrument, strongly supports- the theory that said defendant Bernard Heinemann signed such paper writings as a witness only. ■ This view is in "harmony with the allegation of plaintiff’s petition filed in said proceedings “ that on or about the 1st day of May, 1897, said landlord entered into an agreement with Ernestine Heinemann, as tenant,” and the final order made on default. Such adjudication established the matter so alleged, as well as the execution and validity of the lease, the occupation of the tenant, and that rent is due, and also as to any other facts which are required to be alleged as- a basis of the proceedings (Reich v. Cochran, 151 N. Y. 122, 126; Grafton v. Brigham, 70 Hun, 131), and plaintiff is estopped from denying the same. Jones on Evidence, § 616.

It is apparent that the judgment as to Bernard Heinemann is against the weight of the evidence, and consequently the refusal to dismiss the complaint as to him was error. Schumacher v. Waring, 7 Misc. Rep. 161; McLaughlin v. Harriot, 14 id. 343. Besides the said defendant was not mentioned in the lease, or renewal or renewals thereof, and hence his signature without any accompanying or explanatory words did not render him liable for the rent, even on the theory that he signed the-lease as surety for the lessee, since such an undertaking would he void under the Statute of Frauds by reason of the failure to express a consideration therefor. Evans v. Conklin, 71 Hun, 536.

It is insisted by the defendant Ernestine Heinemann that she is not liable for the rent in Question because, although it was due in advance, she was dispossessed before the month- expired for which it was payable; but the authorities hold that where rent is payable monthly in advance, under a lease for one year, a landlord is entitled to . a whole month’s rent, notwithstanding the ■ tenant is dispossessed by virtue of a warrant, issued in summáry pro*467'ceedings before the expiration of the month, for default in payment. Boehm v. Rich, 13 Daly, 62; Rice v. Bliss, 66 How. Pr. 186; Fursman v. Fannaci, 2 N. Y. Supp. 339; 1 McAdam’s Landlord *&*Tenant, p. 660; 2 McAdam’s Landlord & Tenant, Supp. 106; see Code of Civil Procedure, § 2253.

In the present case the rent was payable monthly, in advance on the first day of each month, and, therefore, the plaintiff became entitled to the whole month’s rent on the first day of the month in question.

The next question arises in regard to the counterclaim for the sum deposited as security for the performance by the tenant of the covenants of the lease.

The defendant Ernestine Heinemann testified, that she received the paper writing pertaining to such deposit from the plaintiff upon the payment of said sum. The latter, on the other hand, testified that he received the money from her first husband, to whom, he says, he delivered said instrument. Such. document, however, only mentions said defendant Ernestine Heinemann, and as it is undisputed that she was the lessee of the premises at the time of its delivery, it must be assumed, even if plaintiff’s testimony upon this subject is credited, that it was delivered to such husband as the agent of his wife. Although the deposit was made as security for the term ending May 1, 1896, 'the renewal of the lease operated as a renewal of the agreement regarding such deposit. Wadsworth v. Wadsworth, 21 Week. Dig. 520; 2 McAdam’s Landlord *&*Tenant, Supp. p. 72.

The plaintiff contends that the sum deposited was forfeited by reason of the nonperformance by the said defendant of the lease in its entirety. It is plain, however, that the intention of the parties was that the money so deposited should be held as security for the payment of the rent and for the reimbursement of the landlord for any expenditures incurred by him for repairs which the tenant might fail to make. Indeed, the agreement in that regard so states in express terms, and it will be so treated notwithstanding words which seem to import a forfeiture of the whole sum for nonperformance of the lease in its entirety. It is a familiar principle that the court will not construe a provision of this kind as in the nature ,of a penalty if the agreement between the parties is susceptible of any other construction. After applying so much of the security as may be necessary in order to satisfy his demands against the tenant, in accordance with the terms of the deposit, the latter *468is entitled to whatever surplus inay remain. Scott v. Montells, 109 N. Y. 1; Chaude v. Shepard, 122 id. 397; Hawthorne v. Coursen, 18 Misc. Rep. 447. The counterclaim, to my mind, comes within the principle of the decisions above referred to, and the justice, therefore,. erred in disallowing the same.

It follows that the judgment as to both defendants should be reversed and a new trial ordered, with costs to the appellant to abide the event. '

Beekman, P. L, and Glldersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.