#### Alma Carlson and Another, as Executors, etc., Appellants, *v.*D. A. Schulte, Inc., Respondent.

Supreme Court, Appellate Term, First Department,

April 29, 1925.

Landlord and tenant —■ lease — clause in lease required tenant to pay as rental eight per cent on total gross sales of tenant in event said sales exceeded guaranteed rental — excess rental was to be paid on first day of each month of term — lease construed as requiring tenant to pay landlord excess rental on first day of month immediately following any month during which eight per cent of total sales has exceeded amount of guaranteed rental.

A clause in a lease, which requires the tenant to pay as rental “ eight per cent (8%) on the total gross sales in the business of the tenant, but under no condition is the landlord to receive less than the guaranteed rental,” and further provides that the tenant shall pay “ such excess rental over the guaranteed rental on the first day of each and every month,” requires the tenant to pay the landlord the so-called excess rental on the first day of the month immediately following any month during which the eight per cent of the total gross sales actually received has exceeded the guaranteed rental under the lease.

Appeal by plaintiffs from judgment of the Municipal Court, Borough of Manhattan, Fifth District, dismissing the complaint.

*Abberley & Bryde [Edward D. Bryde*of counsel], for the appellants.

*Jerome Eisner,*for the respondent.

Per Curiam:

This action involves a construction of a lease entered into between the parties hereto. Paragraph 1 is as follows: *“*That the tenant shall pay the guaranteed rental of one hundred ($100) dollars in advance on the first day of each and every month until May 1st, 1917, and thereafter at the yearly rental of eighteen hundred ($1800) dollars, payable in equal monthly payments of one hundred and fifty ($150) dollars in advance on the first day of each and every month, the first payment of one hundred and fifty ($150) dollars to be made on May 1st, 1917, as aforesaid.”

Paragraph 19 is as follows: *“*The landlord shall receive as rental for the leased premises eight per cent *(8%)*on the total gross sales in the business of the tenant, but under no condition is the landlord to receive less than the guaranteed rental which is due and payable as provided for. The tenant agrees to pay such excess rental over the guaranteed rental on the first day of each and every month and agrees to keep a proper and complete record of all sales; and the books of the tenant shall be open to the landlord or its representative each month and an accounting rendered to the landlord.”

In twenty-four of the fifty-six months of the term eight per cent *881of the gross sales actually exceeded the guaranteed rental. The court below was of the opinion that the lease should be construed to read: “ The landlord shall receive as rental for the leased premises eight per cent of the total gross sales in the business of the tenant for the period of the lease.” We are unable to agree with such a construction.

The 2d sentence in the 19th paragraph provided in part as follows: “ The tenant agrees to pay such excess rental over the guaranteed rental on the first day of each and every month.” It is quite clear, therefore, that in any month where the eight per cent of the total gross sales actually exceeded the guaranteed rental the landlord was entitled to receive from the tenant the so-called excess rental on the first day of the month immediately following.

Judgment reversed, with thirty dollars costs, and judgment directed in favor of the plaintiffs for the amount demanded in the complaint, with interest and costs.

All concur.