Opinion
October 30, 1942.
Appeal from the Municipal Court of the City of New York, Borough of Queens, Third District, RICHARDSON, J.
Leonard M. Henkin for appellants.
Benjamin Heller for respondents.
Final order unanimously modified upon the law by providing that landlords have judgment for the sum of $1,105.77 together with interest and appropriate costs in the court below, and as so modified affirmed with ten dollars costs to landlords. Appeal from decision dismissed. No appeal lies therefrom. (N.Y. City Mun. Ct. Code, § 154.)
The order of the Federal Petroleum Coordinator did not frustrate the lease. Furthermore, the tenant, having remained in possession, was not entitled to claim that performance of the terms of the lease had been rendered impossible. ( Hizington v. Eldred Refining Co., 235 A.D. 486; Colonial Operating Corp. v. Hannan Sales Service, Inc., 178 Misc. 885.) The evidence establishes the amount of arrears due under the lease as modified. Under the modification agreement the amount of rent was set not by the amount of business done by the tenant or the amount of the tenant's profits, but by the margin between the wholesale and retail prices that were fixed by the gasoline distributor. When that margin was fixed between 4 and 4.9 cents per gallon, the landlords were entitled to $350 per month rent. It is uncontroverted that throughout the month of April up to the date of the trial in May, 1942, the margin remained between 4 and 4.9 cents per gallon. The evidence is sufficiently clear to establish that only $50 of the April rent was paid, leaving a $300 balance of rent due for April, 1942, and $350 for May, 1942. The land taxes of $455.77 paid by the landlords on April 24, 1942, upon the tenant's failure to pay the same, became due as additional rent on May 1, 1942, under the express terms of the lease. The tenant is not entitled to have either the taxes or the rent prorated. Accordingly, the total rent due to the landlords was $1,105.77.
No opinion.
Present — MacCRATE, LEWIS and McCOOEY, JJ.