Sancourt Realty Corp. v. Dowling , 220 A.D. 660 ( 1927 )

Proskauer, J.

In consideration of the execution by plaintiff of a lease to a third party, the defendant covenanted to “ well and truly pay the said rent or any arrears thereof ” in the event of default by the tenant. The defendant pleads the refusal of the landlord to mitigate damages by leasing to a new tenant. This appeal is from the order denying plaintiff’s motion for judgment on the ground of the insufficiency of this defense.

It is settled law that “ the lessor is not required to lease to another if he have an opportunity.” (Becar v. Flues, 64 N. Y. 518.) The usual obligation to reduce damages “ has no application to a contract of leasing, as the latter is governed by peculiar and entirely different rules.” (Gray v. Kaufman Dairy & Ice Cream Co., 9 App. Div. 115, 119.) Rent is.a fixed compensation for a vested interest. The contract, to that extent, is executed by the landlord, and the tenant’s obligation to pay rent' as compensation for the éstate is absolute. The defendant’s absolute covenant to pay any rent which was not paid by the tenant is, therefore, unaffected by the landlord’s refusal to lease to a new tenant. The question of the surety’s right of subrogation is not before us on this appeal.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, with ten dollars costs.

Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.