Misc.] Appellate Term, Second Department, December, 1917.

The lease was in writing and originally made between one Harriet Cohen, as landlord, and Mary Williams, as tenant. Harriet Cohen transferred the property and assigned the lease to the Milton-Alvin Holding Company, and this proceeding is brought in the name of the owner.

The lease provided, among other things, that the tenant would erect sixteen frame bungalows upon the premises and would pay $1,800 per annum as rent for the first two years; and for the remainder of the term, which is eight years, a sum equivalent to one-half of the rental, or income, received by the tenant from the subtenants. The lease further provided that such rent would be paid in each year of the term, " as soon as the same has been collected by her (tenant) for each year from the occupants of all the bungalows." The owner was to pay the taxes and assessments, and upon his failure to pay them the tenant was to have the privilege of paying those charges and deduct the amount of such payments from the rental, but it does not appear from the record that any default in the payment of these charges has been suffered by the landlord.

It appeared upon the trial of this action that at the time of the beginning of this proceeding, which was the 14th day of July, 1917, the tenant had collected from all the subtenants sums aggregating $1,704.28. The trial judge found that one-half of that amount, i. e., $852.14, was due to the landlord from the tenant, and entered a final order ousting the tenant for failure to pay that sum.

It is the contention of the tenant that the lease did not create the relation of landlord and tenant; that the relation existing was that of partners, and that the landlord was relegated to an action for an accounting. That contention has little weight. The lease between the parties was complete in all its terms. It was

Appellate Term, Second Department, December, 1917. [Vol. 102.

specific as to the time and the property covered thereby; and, although the amount is not specifically stated, it is only a matter of the simplest calculation to determine the amount to be paid in cash each year as rent. The lease is definite in its terms and is as complete as any document for the leasing of real property could be. The mere fact that the rent was fixed at one-half of the amount collected from subtenants does not change the character of the document, or the relation between the parties.

The real controversy before us, however, is the question as to whether or not this proceeding was prematurely brought. The precept is dated July 14, 1917. The lease provides that the rent should be paid by the tenant in each year" as the same has been collected by her for each year from the occupants of all the bungalows." I am satisfied that it was the intention of the parties to this lease that one-half of rents as collected should become the property and be turned over by the tenant to the landlord as soon as collected from the subtenants. To hold otherwise would be to place a construction upon this lease which would allow the tenant to resist payment of the rent until she had collected the entire sum from all the tenants, and, to carry such an argument to its logical conclusion, one would have to say that if one of the subtenants failed or refused to pay all his rent for a given year the landlord could not enforce payment of the rent. Of course, this the parties never intended.

There is nothing in the lease except the provision whereby the tenant may, upon default of the landlord in the payment of taxes and other charges, pay and deduct the amount so paid from the amount of the rent stipulated to be paid, and so far as the record here discloses there is no claim that she has been compelled to make such payments, or that she is entitled to any

Misc.] Appellate Term, Second Department, December, 1917.

deductions whatever. So that in no event can the amount due for rent be diminished, that is, when she had collected from the subtenants any sum, one-half of such amount belonged to the landlord and was due to him without any right of the tenant to make any deductions whatever.

In placing this construction upon the lease we are not, as has been suggested, making a new lease for the parties. We are simply construing the lease which they themselves have made.

The final order and the order denying the motion for a new trial should be affirmed, with costs.

CLARK, J., concurs.

BENEDICT, J. (dissenting). I am in accord with my associates in the conclusion that no partnership relation arose by virtue of the lease between the parties; but I cannot follow them in holding that the proceeding was not prematurely brought. The result reached by them - meritorious though it may be is not, in my opinion, within our power to attain. The parties themselves made an elaborate agreement of lease defining their mutual rights and obligations concerning an important business enterprise in which they were to be mutually concerned for a term of ten years with a privilege of a renewal for five years longer at the option of the tenant. That which they deliberately chose to stipulate is binding upon them. The court cannot change the terms of the agreement nor substitute a new one in its place. Construction- not creation of the contract is the function of the court. The language employed by the parties must be given its usual interpretation, and, as I read the mooted clause, the language is entirely plain and unambiguous. When the proceeding was begun some of the rentals from

Appellate Term, Second Department, December, 1917. [Vol. 102.

subtenants (in seven cases out of fourteen) had not become due and it followed that the rentals had not then been collected from the occupants of all the bungalows for the year in question. Hence there was no default, and the court below was without jurisdiction to grant a final order in summary proceedings termi nating the relation of landlord and tenant as upon the tenant's failure to pay the rent reserved. I shall not pursue the subject further, except to observe that, even if the lease could be deemed to be ambiguous on the point in question, any doubt should be resolved in favor of the tenant who accepted the lease rather than in favor of the landlord who prepared and proffered it

Order affirmed, with costs.

DELIA ALLEN, Appellant, v. HARRY WOLKOF and ÆTNɅ ACCIDENT AND LIABILITY COMPANY, Respondents.

(Supreme Court, Appellate Term, Second Department, December,

1917.)

Municipal Court of city of New York-jurisdiction of marshal of, required to file bond actions — Municipal Court Code, § 146.

Under section 146 of the Municipal Court Code a marshal is required to file a bond in the sum of $3,000 and the Municipal Court of the city of New York has not jurisdiction of an action against a surety on such a bond.

BENEDICT, J., dissents.

APPEAL from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, rendered October 30, 1917, in favor of the defendants dismissing the complaint, with costs.

George R. Brennan, for appellant.

Harry M. Peyser, for respondents.

Misc.] Appellate Term, Second Department, December, 1917.

CALLAGHAN, J. Plaintiff appeals from a judgment of the Municipal Court dismissing the complaint, after a motion made for that relief. The motion was for judgment on the pleadings.

The single question involved in this appeal is the jurisdiction of the Municipal Court to entertain an action against the surety on the official bond of a marshal when the amount claimed exceeds $1,000. The court below held that the Municipal Court had no such jurisdiction.

The plaintiff seeks to maintain this action by virtue of subdivision 2 of section 6 of the Municipal Court Code. That subdivision, after making provisions for an action in replevin where the value of the chattel does not exceed $1,000, and for dispossessing tenants without regard to the amount due, or claimed to be due, for rent, then states that "an action upon the bond of a marshal of the city of New York" may be maintained -apparently without any money limitation.

By section 146 of the Municipal Court Code a marshal is required to file a bond in the sum of $3,000. If the Municipal Court had jurisdiction to entertain an action on a bond for that amount, or on a bond for any other sum in excess of $1,000, such authority must be found in subdivision 2 of section 6 of the Municipal Court Code. Subdivision 1 of that section specifies the character of the actions over which the court has jurisdiction and limits the amount that may be claimed therein to $1,000, but it is contended that, inasmuch as provision for a suit upon a marshal's bond is not contained in subdivision 1, such failure, or noninclusion, evidenced an intention on the part of the legislature to give jurisdiction upon such bond without limitation in amount.

The general scheme of the Municipal Court Code was to enlarge the jurisdiction of that court to $1,000, and,