#### Cornelia Seymour, Plaintiff, *v.*Walter H. Warren, et al., Defendants.

(Supreme Court, Queens Trial Term,

May, 1905.)

Contract — To take charge of real estate, collect rents, etc.— Rescission — Action for alleged breach.

Defendants, under a written agreement, took charge of plaintiff’s land from March 26, 1897, to May 1, 1900, during which time they were to collect and have all rents, keep the premises in repair, pay all taxes, interest on mortgages and other charges and pay plaintiff $75 a month net, beginning May 1, 1897. Defendants failed to pay the next two year's’ taxes and in January, 1899, upon their proposition plaintiff paid one year’s taxes but refused to reduce the monthly payment to $50 as they proposed. Defendants upon payment of the $75 for January, 1899, informed her, as she in effect claimed, that thereafter they would not pay that amount but only $50 and in the middle of February, 1899, she took the property out of their charge, collected the rents and paid the charges for the rest of the term.

Held, that thereby plaintiff had rescinded the contract and lost her right of action for damages for the alleged breach thereof by defendants.

That as the contract did not fix a day in the month for the February payment of $75, it was not due until the end of the month and that as to the amount of the one year’s taxes, it was voluntarily paid by her in variation or change of the contract and could not be recovered back.

Whether, inasmuch as no monthly payment was due at the time plaintiff took charge of the property, there was any breach of contract by defendants, quiere.

Action for damages for breach of contract. 'Motion by plaintiff for a new trial, complaint having been dismissed at the close of the evidence .for the plaintiff.

The defendants took charge of- the plaintiff’s land under a written agreement with her that they should have such charge from March 26, 1897, to May 1, 1900, and that during that time they should collect and have all the rents, should keep the premises in repair, pay all taxes, interest on mortgages, and other charges, and pay the plaintiff $75 a month net, beginning May 1; 1897.

*317The defendants failed to pay the next two years’ taxes, and then in January, 1899, made the proposition to the plaintiff that she should reduce the said monthly payment of $75 to $50, and also pay one year’s taxes, and they the other. She assented to pay one year’s taxes, but refused to reduce the said monthly payment. She thereupon paid one year’s taxes and the defendants paid the other.

The defendants having paid said monthly payment of $75 for January, 1899, and informed the plaintiff that they would not pay the said $75, but only $50, monthly thereafter (which the plaintiff claims their words and conduct amounted to, in effect), the plaintiff in the middle of February, 1899, demanded of and took the property out of the charge of the defendants and into her own.

Blandy, Mooney & Shipman for plaintiff.

James J. Allen for defendants.

Gaynor, J.:

After taking the property away from the defendants and into her own charge, the plaintiff collected the rents, paid the charges for the rest of the contract term, and having also charged the defendants with the $75 a month which they agreed to pay her, claims that they are liable to her for the deficiency as damages for their breach of the contract in refusing to continue to pay her the said $75 a month. By taking the properly away from the defendants and into her own charge the plaintiff rescinded the contract, and thereby lost her right of action for damages for the breach by the defendants (Morris v. Rexford, 18 N. Y. 552; Kinney v. Kiernan, 49 id. 164; Graves v. White, 87 id. 463; McCreery v. Day, 119 id. 1; Eames V. B. Co. v. Prosser, 157 id. 289).

Counsel for the plaintiff now claims that at all events the . monthly payment of $75 for February, 1899, had already accrued before the plaintiff ended the contract; and that the $440 she paid for the year’s taxes was also then due to her and is recoverable in this action.

No such point or claim was made for plaintiff on the motion to dismiss, and that would suffice for not entertaining it *318now. But, in addition, the $7 5 was not due at the rescission, which was in the middle of February. The contract did not fix a day in the month for its payment, and hence it was not due until the end of the month. And as to the $440, it was voluntarily paid by the plaintiff in variation or change of the contract, and cannot be recovered hack (Oregon P. R. R. Co. v. Forrest, 128 N. Y. p. 90).

Inasmuch as no monthly payment was due at the time the plaintiff took the property away from the defendants, there is a question whether there was any breach by them.

The motion for a new trial is denied.