The defendant appeared on the return day of the order to show cause, and succeeded in having the injunction set aside. The order denied the motion to continue the injunction during the pendency of the action, and further ordered that the "said injunction heretofore granted herein, be, and the same hereby is, vacated and set aside." The distinguishing feature of the case at bar is that here the injunction was temporary. It was to continue only until the hearing and determination of the motion for an injunction pendente lite. The defendants employed counsel to oppose that motion, not to move to vacate an order which upon the hearing and decision of the motion would be no longer of any force or effect. No order to vacate the temporary restraining order was required, and none was made. The motion for an injunction during the pendency of the action was simply denied, with $10 As was said by Judge Parker in Sweet v. Mowry, the defendants would have been relieved from that order whether they appeared pursuant to the order to show cause or not. "They went to the expense of hiring counsel, not because the temporary injunction had been granted, but to prevent another and more extensive one from being made. If the judge had made the order to show cause, and not granted the temporary injunction, the defendants would have had the same condition before them, and the same expense to incur." The decision in Perlman v. Bernstein was placed upon the ground that the expenses incurred were allowed as a direct result of the injunction. The ground of the decision is stated in the opinion of the court, as follows:

"The defendant, when he appeared in court upon the return of the order to show cause, was there, not alone for the purpose of preventing the issuance of a further injunction, but was also there for the purpose of procuring the dissolution of the injunction which had been granted. The order which was entered upon such hearing recites that the defendant was successful in procuring the injunction order, which had been granted, to be vacated and set aside; and such services were clearly incurred on account of the injunction, within the cases to which we have called attention, as well as others."

The distinguishing features may not be broad, but they are clear, and were so understood by the court in Perlman v. Bernstein. Judge Hatch, writing for the court, says:

"The ground upon which the learned court at Special Term refused confirmation of the report was that the damages sustained did not result from the granting of the injunction, but were expended in preventing the issuance of a subsequent order continuing the injunction. Under such circumstances, the cases cited of Sweet v. Mowry, 71 Hun, 281, 25 N. Y. Supp. 32, Randall v. Carpenter, 88 N. Y. 293, and others cited by the court below, sustain his conclusion. These cases, however, have no application to the one represented by this record."

-Referring to a previous decision in the same case (83 App. Div. 203, 82 N. Y. Supp. 148).

In concluding his opinion, Judge Hatch said:

"It is evident, therefore, that this case is distinguishable from the cases cited by the court below, and calls for the application of a different rule."

We conclude that the rule is settled that the costs and expenses of opposing a motion made upon an order to show cause why an injunction pendente lite should not be granted, where the temporary restrain

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ing order is limited to expire upon the hearing of the motion, are not recoverable as damages because of the preliminary injunction.

The appeal from the order confirming the referee's report properly brings up for review the question of the right of the defendant to the damages which have been awarded. The order of reference was a matter of right. It could not be determined what damages the defendants were entitled to recover by reason of the preliminary injunction until the facts were before the court. While it is held that the damages here awarded are not recoverable, it is not held that no damages can be recovered because of a preliminary injunction such as was included in the order to show cause. There may be damages directly affecting a party to his injury by reason of a temporary injunction which would be recoverable. The practice adopted here is the same as that followed in Sweet v. Mowry. We think it is correct.

It follows that the order appealed from should be reversed. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur, except KRUSE, J., who dissents.

(50 Misc. Rep. 303)

O'BRIEN v. LEVINE et al.

(Supreme Court, Appellate Term. April 24, 1906.)

1. LANDLORD AND TENANT-LEASES-ABANDONMENT-DEPOSIT FOR RENT-RETENTION BY LANDLORD.

Plaintiff deposited certain money sued for to secure performance of a lease, one of the provisions of which was that, if any part of the premises should be abandoned, the landlords or their representatives might re-enter and re-let the premises as plaintiff's agents, and receive the amount, applying the same, first, to the payment of re-entry expenses, and then to the payment of the rent due; the balance, if any, to be paid to the tenant, who was liable for any deficiency. Plaintiff defaulted in the payment of rent, whereupon the landlords re-entered after plaintiff had voluntarily left the premises without cause. 'Held, that the landlords were entitled to retain the deposit until the expiration of the lease. 2. SAME-RENT-PAYMENT.

Where a lease required the tenant to "do all inside and outside repairing," the tender of a check for a month's rent, less $32 claimed for repairs, which check was immediately returned by the landlords, did nct constitute payment of the rent.

3. SAME-LEASE-PROVISION FOR CANCELLATION-OPTION.

Where a lease recited that, in case of any default by the tenant in any of the covenants therein, the landlords should have the right to collect rents from the subtenants, and that the lease should be canceled, such provision only authorized a cancellation at the option of the landlords in case of the tenant's default.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by James O'Brien against Saul Levine and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed.

Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Pollak & Deutsch, for appellants.

Guiseppe L. Maggio, for respondent.

TRUAX, J. The facts in this case are substantially undisputed. The plaintiff by written lease rented from the defendants certain premises in this city for the term of 4 years and 11 months from September 2, 1905, at an annual rental of $2,000, payable in monthly instalments of $166.66 on or before the 15th of each and every month in advance. At the same time the plaintiff deposited the sum of $333.33, to be held by the defendants "as security for the faithful performance of this lease by him. If all the conditions in this lease be performed by said tenant, said security will be returned to him at the time of the expiration of the term of this lease, with interest," etc. The lease also contained these clauses:

"Eighth. That if the said premises, or any part thereof, shall become abandoned by the tenant, the landlord or their representatives may re-enter the same, either by force or otherwise, and relet the said premises as the agents of the said tenant, and receive the rent thereof, applying the same, first, to the payment of such expenses as they may be put to in re-entering, and then to the payment of the rent due by these presents; the balance, if any, to be paid over to the tenant, who shall remain liable for any deficiency. In case of any default by the tenant in any of the covenants herein, said landlords or their agent to have the right to collect rents from the subtenants, and this lease shall then become canceled. Said tenant does hereby waive any and all legal proceedings for the cancellation of this lease."

The tenant defaulted in payment of the rent for the month of October, 1905, which was due on the 15th of that month. Subsequently, and about November 1, 1905, the defendants took possession of the premises, and proceeded to collect the rents of the subtenants. On November 18, 1905, the plaintiff began this action to recover the amount of his deposit, less the rent due from October 15th to November 15th, and recovered a judgment for the difference between the sum deposited and one month's rent. The defendants in their answer pleaded a forfeiture of the security, and also that they had a right to retain the amount of the deposit until the expiration of the term named in the lease. Upon the trial the claim of forfeiture was abandoned, and the only question presented upon this appeal is the right of the defendants to retain the deposit aforesaid until the end of the term.

Under the testimony, I am of the opinion that the contention of the defendants is correct. The defendants instituted no summary proceedings, but simply resumed possession of the premises after the plaintiff's default in payment of rent. It is claimed by the plaintiff that he was forcibly ejected from the premises by the defendants. This is not sustained by the evidence. The plaintiff on the due day sent his check, concededly for less than the amount of rent due, claiming the balance to be due him for repairs made after his term began, although the lease provided that he should "do all inside and outside repairing." This check was not payment, and was promptly returned. On October 21st the plaintiff saw Saul Levine, one of the defendants, who, he testified, told him (plaintiff):

"If I didn't give the full month's rent, I ought never to stay any more; and if I didn't go away they would try to have me arrested. They told me to go out right away, and gave notice to the tenants not to pay me."

This was substantially disputed by Levine, who testified that the plaintiff on October 22d insisted upon giving his check for $134, and

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claimed allowance of a bill for repairs for $32, which was refused, and that upon November 1st Levine took possession of the premises, and began to collect the rent of the tenants.

Assuming plaintiff's testimony to be true, he was not forcibly evicted. He knew on October 15th his rent was due. Concededly, he has never paid it. After his conversation with Levine, he immediately left the premises, and did so voluntarily and without cause. By the eighth clause of the lease above quoted, the landlord had a right to re-enter the premises if abandoned, and relet the same as agents of the tenant, and it must be presumed that they are in possession of the premises in pursuance of the conditions of the lease and for the purposes therein specified. The clause in the lease reciting, "In case of any default by the tenant in any of the covenants herein, said landlord to have the right to collect rents from the subtenants, and this lease shall then become canceled," simply gives the landlord the option of declaring the lease canceled if default on the part of the tenant occurs, and does not give the tenant the right, by making a default, to then assert that the lease is canceled.

The theory upon which the courts have required the return of deposits under somewhat similar clauses contained in leases has been that such leases have been terminated, and such termination has been shown by the taking of summary proceedings, in which the issuing of a warrant "cancels the agreement for the use of the premises." Section 2253, Code Civ. Proc. Of course, in the absence of an agreement, a reentry and reletting on the part of the landlord would operate as a surrender and acceptance of the premises (Underhill v. Collins, 132 N. Y. 269, 30 N. E. 576), but such is not this case.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

(50 Misc. Rep. 646)

FULLER v. CHRISTIAN.

(Supreme Court, Appellate Term. April 24, 1906.)

SALES-BREACH OF CONTRACT--DEFENSES.

Where a contract for the sale of corporate stock was modified by extending the time for performance by the seller, this constituted no defense to an action for the breach of the contract by him, where the certificates of stock were never delivered, though the condition which the delivery was to await was fulfilled.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 1159.] Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by Frank Fuller against Eugene Christian for breach of contract for sale and delivery of corporate stock. From a judgment in favor of defendant, plaintiff appeals. Reversed, and new trial ordered. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Arthur J. Gotthold, for appellant.

Gardenhire & Jetmore, for respondent.

BISCHOFF, J. Accepting the defendant's testimony as a modification of his agreement as expressed in the receipt delivered at the time the money in question was paid in, time for performance upon his part in the delivery of the certificates of stock was postponed, but the agreement was not otherwise changed, and it remained that the buyer (the plaintiff's assignor) was entitled to an actual delivery of the certificates evidencing the issue of stock. The condition which the delivery was to await, as agreed, was concededly fulfilled, and the certificates were not delivered by the defendant, who rested his defense upon the claim that the stock was issued according to the stockbook of the corporation, and upon his belief that the certificates were mailed to the plaintiff's assignor. There was, however, no proof of mailing, and the fact that the stock was issued (assuming the proof to have been competent) was wholly immaterial to the question of the defendant's performance of his agreement to deliver the certificates. Nonperformance was sufficiently indicated by the plaintiff's evidence of the failure to deliver the stock, and the evidence for the defendant in no way supported a defense to the cause of action.

The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

(50 Misc. Rep. 306)

LATHAM v. WOODWARD.

(Supreme Court, Appellate Term. April 24, 1906.)

LANDLORD AND TENANT-TENANT HOLDING OVER-AGREEMENT FOR TERMINA.

TION-EVIDENCE-SUFICIENCY.

In an action for rent against a tenant holding over for a year after the expiration of the term of his written lease, examined, and held not to justify a finding of a verbal agreement for the termination of the tenancy before the expiration of the year.

Bischoff, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by Henrietta A. Latham against Robert S. Woodward. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Z. Melville Knowles, for appellant.

H. A. Cushing, for respondent.

SCOTT, P. J. I am not disposed to assent to the affirmance of this judgment, as the testimony upon which it rests is too doubtful to be relied upon. The action is for rent of a house for July, August, and September, 1905. The defendant first became a tenant under a written lease for three years from October 1, 1899. That lease was renewed by an interchange of letters from October 1, 1902, to October 1, 1903. No second written renewal was had, but defendant continued to occupy the house after October 1, 1903, thus becoming a hold-over tenant for a year, or until October 1, 1904. After that date he continued to occupy the house, and consequently became again a hold-over