#### Albert H. Woods, Appellant, *v.*David Broder and Sarah Cohen, Respondents.

First Department,

December 11, 1908.

Guaranty that tenant will pay rent — agreement construed— definition — “ occupation ” and “ possession,”

One who guarantees that lessees Avill pay rents due or that may become due under the lease during the term thereof “ while they are in the occupation of said premises ” cannot escape liability because the lessees at the date of a default were not in actual physical occupation, as otherwise the tenant could deprive the landlord of his sepurity at will.

Contracts will b^ so construed as to be operative rather than inefficient.

The words “occupation” and “possession” are frequently synonymous when used in leases and like instruments.

*123Appeal by the plaintiff, Albert H. Woods, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 10th day of April, 1908, reversing a judgment of the City Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said City Court on the 21st day of Hovember, 1907, upon the verdict of a jury rendered by direction of the court, and dismissing the complaint herein.

*Henry J.*Goldsmith, for the appellant.

*Meyer*Greenberg, for the respondents.

Scott, J.:

The plaintiff appeals from an order of the Appellate Term reversing a judgment of the City Court in favor of the plaintiff and dismissing the complaint. The defendants are sued asguarantors upon a lease. The plaintiff being the lessee of a theater in the city of New York sublet it to Charles Treitlor and Abraham Peyser for a term of years ending on April 30, 1909, at an annual rental of $8,400, to be paid in equal installments of $933.33 on the first day of each month, except June, July and August during the term.

The present action is to recover the installment of rent which fell due on October 1, 1907. The defendants executed and delivered to plaintiff an undertaking wherein they recited the fact that a lease was about to be executed, and that plaintiff had exacted from his lessees, as a condition, that they furnish a guaranty in writing that “ they will pay all the rents due or that may become due under and by virtue of said lease during the terms thereof while they are in the occupation of said premises.” Thereupon the defendants undertook that “if at any time during the term of said lease said Charles Treitler and Abraham Peyser will be in the occupation of said premises and shall fail to pay the rent for such month or months *that they will be in occupation*of said premises during the term of said lease, we the undersigned will pay to the said Albert H. Woods such rent or rents for such month or months as they may become due and payable under said lease, that they the said *124Charles Treitler and Abraham Peyser shall have failed to pay.” It does not appear when the lessees went into possession, but it does appear that they were in possession in September, 1907, and that they did not pay the installment of rent falling due on October 1, 1907, to recover which is the object of this action. The defendants now insist that, in order to recover, the plaintiff must show not only that the lessees were in legal contemplation in possession of the leased premises, but were in actual physical occupation on the day that the rent fell due, and in this view they have been upheld by the Appellate Term. (58 Misc. Rep. 567.) To give this construction to the guaranty is to destroy its efficiency, and thus to violate a cardinal maxim for the construction of contracts, whether by deed or by parol, that they shall be so construed as to be made to operate rather than to be inefficient. (Broom Leg. Max. [7th Lond. ed.] 406.) It requires no strained construction to read the words “ in the *occiopation*of said premises ” as meaning “ in *the possession*of said premises,” for the words are frequently used synonymously, especially in leases and like instruments. *(Redfield v. Utica & Syracuse R. R. Co.,*25 Barb. 54.) Thus construed the instrument here sued upon becomes efficient and as it was undoubtedly intended to be read, for any other construction would permit the deprivation of his security by the landlord at the will of the tenant. The unusual use of the word “occupation” instead of “possession” is doubtless explained by the fact which appears from the lease, that there was some doubt as to when the lessor, would be able to put his lessees into actual possession and occupation of the leased premises. The intention of the parties evidently was that liability for rent should not begin on the date of the lease, but when actual physical possession should be given. We are unable, therefore, to agree with the construction placed upon the guaranty by the Appellate Term. We cannot, however, reinstate the judgment of the City Court. There was evidence offered and given, but afterwards stricken out, tending to show that the lessees abandoned and surrendered the premises on September 30, 1907, with the consent of the landlord. If this should be established it would have terminated both the lease and with it the defendants’ liability for the rent falling due on October first. The determination of the Appellate Term must, therefore, be so far modified as to reverse the judgment of the City *125Court and order a néw trial, with costs in this court and the courts below to abide the event.

Patterson, P. J., McLaughlin and Laughlin, JJ., concurred; Houghton, J., concurred in result.

Determination so far modified as to reverse the judgment of the City Court and order a new trial, with costs in this court and in the courts below to abide the event. Settle order on notice.