Landesman v. Hauser

Bischoff, J. These appeals are from an order dismissing the complaint at the trial for insufficiency of substance, from the judgment for the defendant which was entered upon the dismissal, and from an order denying the plaintiffs motion for a new trial. Obviously, the question presented for our determination is precisely the same as if it had arisen upon a demurrer to the complaint. Sheridan v. Jackson, 72 N. Y. 170. [301] The action was to recover the sum of $500, alleged to have been deposited with the defendant as security for the plaintiff’s performance, as lessee, of the terms of a lease which was entered into between the parties, after first deducting therefrom $80 for arrears of rent which the plaintiff admitted to be due and owing the defendant. The complaint alleges the letting by the defendant to the plaintiff of certain premises in the city of New York in consideration' of which the plaintiff had agreed to pay a yearly rental in equal monthly installments in advance, and that, at the time of the making of the lease, he had deposited with the defendant the sum of $500 as security for the performance upon his part of “the terms of said lease,” the defendant having agreed, at the same time, to repay the sum so deposited upon the expiration of “the said lease.” No other conditions- of the lease than such as appear from the above recital are stated. The complaint then proceeds further to allege that the lease was terminated by the issuance of a warrant upon a final order for the lessor defendant in summary proceedings to recover possession of the demised premises for nonpayment of rent (Code Civ. Pro., § 2253), and that there was due and owing the defendant, at the time, $80 for arrears of rent. Then follows a demand for judgment in the sum of $420. So far as the complaint showed, the lease was complete as alleged, and the only “ terms ” with which the plaintiff had to comply was the payment of the rent reserved in the manner specified. In this he admitted his default, asserting the rent remaining unpaid at the time of the termination of the lease to have been $80. Prima facie, therefore, the plaintiff was entitled to repayment of the sum demanded, and so far the complaint must be deemed to have stated a cause of action. True, the answer asserted that the lease contained further covenants and conditions with which the plaintiff had agreed to comply, and for which compliance also the sum deposited was to be security; and we apprehend the learned justice below fell into the error of resorting to matter extrinsic to the pleading demurred to and was thereby persuaded as to the actual text of the lease, from which he [302] concluded that the complaint was insufficient in that it did not allege compliance upon the plaintiff’s part with terms other than such as were alleged and upon which compliance the plaintiff’s right to repayment of the 'deposit was dependent. The rule governing demurrers for insufficiency of the matter pleaded is very concisely stated in '6 Encyclopedia of Pleading and Practice at page 298. “A speaking demurrer, that is, a demurrer which is founded on matter collateral to the pleading against which it is directed, is bad,” and “when a pleading is demurred to, resort cannot be had to other pleadings for the purpose of supporting or resisting the demurrer, but the demurrer must prevail or fall by the face of the pleading to which it is directed.” The judgment and orders appealed from should be severally reversed, with costs to the appellant to abide the event, and a new trial ordered. Scott, J., concurs.