Cornelia Seymour, Appellant, v. Walter H. Warren and J. Harper Skillin, Respondents

Cornelia Seymour, Appellant, v. Walter H. Warren and J. Harper Skillin, Respondents. Second Department, July 24, 1906. Contract—breach, before time of performance — when plaintiff acting on breach of defendant does not rescind contract. When defendants under contract to manage real estate for the plaintiff and to pay her a certain rental therefor make a breach of the contract, the fact that the plaintiff retakes possession is not a rescission of the contract which bars an action for the breach. When a defendant renounces such contract the plaintiff may act upon the breach before the time of performance. . Appeal by the plaintiff, Cornelia Seymour, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 12th day of May, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 15th day of May, 1905, denying the plaintiff’s motion for a new trial made upon the minutes. Edmund L. Mooney and Frederick A. Card, for the appellant. James J. Allen, for the respondents. [MAJORITY — Jenks, J.:] Jenks, J.: This action was begun on February 28, 1899, for damages for breach of a contract made March 26, 1897, whereby defendants agreed with plaintiff to take entire charge of certain premises owned by plaintiff, to preserve them and to pay all expenses until May 1, 1900, the rentals thereof to be received by the defendants to their own use, and in consideration thereof to pay the plaintiff seventy-five dollars a month, beginning May, 1, 1897. The case was decided upon the following proposition of the learned trial court: “ By taking the property away from the defendants and into her pwn charge, the plaintiff rescinded the contract and thereby lost her right of action for damages for the breach by the defendants.” (47 Mise. Eep. 316.) The case of the plaintiff is that the defendants broke the contract, and thereupon, upon notice to the defendants that she considered that they had repudiated the contract, she took such possession and rented the premises. If the defendants renounced the contract, the plaintiff could act upon the assumption of a breach before the time for performance (Bernstein v. Meech, 130 N. Y. 354, 358; Windmuller v. Pope, 107 id. 674), and she could thereupon sue upon the breach. (Howard v. Daly, 61 id. 362, 376.) I am of opinion that a rescission was not necessarily established by the act of the plaintiff in taking over the premises, provided there was a breach of the contract by the • defendants; so far as her obligations to the defendants were concerned, it was indeed her “ duty ” “ to mitigate the damages ” as much as she could. (See Kidd v. McCormick, 83 N. Y. 391, 399; Allen v. McConihe, 124 id. 342; Johnson v. Meeker, 96 id. 93.) .Inasmuch as the court disposed of the case upon the view that the act of the plaintiff in any event was a rescission, I think that the judgment and order must be reversed and a new trial must be granted, costs to abide the final award of costs. Hooker, Rich and Miller, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the final award of costs.