(dissenting):
I cannot concur. By this lease the landlord had the right to re-enter upon default in payment of rent, without any reference to the question whether there was a sufficiency of goods whereof distress could be made. Section 1505 of the Code of Civil Procedure, requiring fifteen days’ notice, applies to a lease in which the right of re-entry is given in default of sufficient distress, but does *374not apply where the right to re-enter depends upon the mere nonpayment of rent. (Hosford v. Ballard, 39 N. Y., 147; Cruger v. McLaury, 41 id., 219.
Now, in addition to the absolute right to re-enter for non-payment of rent, this lease also contains the right to re-enter “ if no sufficient distress can be found upon the premises.” The plaintiff does not count upon this covenant, and if he did, he should not fail, if, alleging two sufficient causes, he made one good. It seems unsound to hold that the plaintiff cannot maintain the first covenant of his lease, because he has not attempted to maintain the second; the two covenants being independent. Van Rensselaer v. Jewett (2 N. Y., 141) supports this position. The lease there was precisely like' this. Subsequent cases in which the point did not arise are cited as authority for the contrary doctrine. Every judge knows how difficult it is to limit his language to the precise point he needs to decide, and the little consideration his language deserves when it covers new points which he did not have to consider. In Snyder's Case (13 N. Y., 299); Ball's Case (19 id,. 100); and Slingerland's Case (26 id., 580); the fifteen days notice was given. Hence there was no need to consider the effect of not giving it, and hence they do not detract from the authority of Van Rensselaer v. Jewett (supra).
Judgment affirmed with costs.