Security Mortgage Co. v. Thompson

Per Curiam. This is an appeal from a judgment rendered by the court in favor of defendant, in an action for rent, under a written lease. The lease, among other things, provided “ that in case of the failure to pay the rent or any part thereof * * * or if the premises shall become vacant during the term * * * it shall be lawful for the landlord or the landlord’s agents or assigns either to re-enter upon the demised premises and remove all persons therefrom, or to dispossess the tenant * * * or to re-enter the same and use such force for the purpose as the landlord or his agents or assigns shall deem proper, without being liable to any prosecution by civil or criminal action or proceeding, therefor.” It was contended on the trial by the defendant that this provision of the lease was illegal, as against public policy; that it furnished part of the consideration and, therefore, the lease could not be enforced by the plaintiff as against the defendant. The court sustained the contention of the defendant and directed judgment in his favor. We are of the opinion that, while the clause providing that the landlord should not be liable to any prosecution by criminal action or proceeding was illegal and void, the contract as an entirety was for a legal purpose and is enforcible, irrespective of the clause in question. The- consideration for the lease was the rent reserved. The provision for reentry, aside from the objectionable clause, was the ordinary provision contained in leases of this character. The defend [153] ant, having entered into possession of the premises under the contract, was in a position to maintain his right to continued occupancy of the premises during the term of the lease. It does not appear and cannot he presumed that it was the intent of the parties that the law should be violated. Lorillard v. Clyde, 86 N. Y. 348; Shedlinsky v. Budweiser Brewing Co., 163 id. 437. The judgment is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event. Present: Seabury, Guy and Whitney, JJ. Judgment reversed and new trial ordered, with costs to appellant to abide event.