to the petitioner, and that a warrant issue. No warrant was in fact issued, and on the 12th day of July, 1906, the plaintiff began an action in the Municipal Court to recover five months' rent under the provisions of the lease, which was for a term of five years, and this action included a demand for the rent for the month of July, 1906, the rent being payable in advance. This action resulted in favor of the plaintiff, and the judgment was paid. On the 15th day of July, 1906, the defendant claims to have removed from the premises, and to have surrendered possession. The present action is to recover for the balance of the term, from the month of August, 1906, and the defendant urges that, having surrendered the premises pending the summary proceeding for his removal, he is absolved from obligation under the lease. The case has been to the Court of Appeals, where a judgment against the plaintiff was reversed upon errors in the charge of the court (Cornwell v. Sanford, 208 N. Y. 126, 101 N. E. 709), and is now before this court upon the question of law whether the facts entitle the plaintiff to recover.

It is urged on the part of the plaintiff that the determination of the questions before the Court of Appeals demands the granting of the motion for the direction of a verdict, while the defendant is equally insistent that the question now before this court differs from that determined by the Court of Appeals, and entitles the defendant to judgment. I am unable to discover any substantial difference between the case as now presented, and that which confronted the Court of Appeals. It is true that as the case was presented upon the former trial it was claimed that there was an agreement between the parties that the defendant should surrender the premises on the 26th day of June, 1906, while it is now claimed that the plaintiff, by moving out on the 15th day of July, terminated the relation of landlord and tenant on that day, and therefore that the judgment of the Municipal Court is not res adjudicata, as the court in effect held it to be in reference to the alleged surrender in June.

If the defendant had moved out of the premises and surrendered them on the 11th day of July, 1906, after the granting of the final order in summary proceedings, and before the plaintiff had commenced his action to recover the rent, there would be no doubt that the relation of landlord and tenant was ended, and the plaintiff would then have been entitled to collect only the rentals due up to that time. He could not have collected for any part of the month of July beyond defendant's actual occupation. Cornwell v. Sanford, supra. But the defendant did not do this. On the 12th day of July the plaintiff began his action to recover the rent for the month of July (with others in arrears), and this action proceeded to judgment and held the defendant liable for the July rental, which entitled him to the possession up to the 1st day of August. This was clearly a waiver on the part of the plaintiff of his summary proceeding. He could not, while maintaining an action for the July rent, avail himself of the warrant to dispossess the defendant; and the latter, by joining issue in this action, clearly submitted to the court the question of the existence of the relation of landlord and tenant under the lease, and this adjudica

tion entitled the defendant to remain in possession of the premises up to the 1st of August.

There is no contention that anything has since transpired to affect the question, and I am of the opinion that the plaintiff is entitled to judgment. The written lease was in effect between the parties until it was terminated by agreement or operation of law. The plaintiff had a right to institute summary proceedings to dispossess his tenant, and he had an equal right to waive this statutory proceeding and to stand upon his written contract. He must be deemed to have waived the statutory proceeding when he started his action to recover rent, which could not have been collected as rent if he had proceeded under the statute; and the defendant, by litigating the issues presented in the Municipal Court, has concluded himself upon the question of the continued existence of the lease up to the 12th day of July. On that day the plaintiff, by waiving his rights under the statute and bringing his action, withdrew his consent to the termination of the lease and reaffirmed it. Nothing that the defendant did after that had any effect upon the contract. He could not by his own act terminate a mutual contract. He had, by joining issue, consented to the litigation of the continued existence of the lease, and the necessary effect of the judgment was to hold the defendant liable as tenant for the rent for the month of July, was to adjudicate the defendant's right to the continued possession of the premises under the lease, and, as a consequence, to the continued obligation to pay the rent for the premises. This seems to me to be the necessary effect of the decision of the Court of Appeals in this case, and I do not think it is out of harmony with any case to which I am referred by counsel.

The plaintiff should have judgment for the full amount of his claim, with costs; and I direct accordingly.

(Supreme Court, Appellate Division, First Department. November 6, 1914.) ATTORNEY AND CLIENT (§ 58*)-DISBARMENT-CENSUre.

In proceeding against an attorney on charges of professional misconduct, evidence held to require a censure.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 7678; Dec. Dig. § 58.*]

In the matter of charges of professional misconduct against Charles H. Stoddard, an attorney. Respondent censured.

See, also, 149 App. Div. 947, 134 N. Y. Supp. 1147.

Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, DOWLING, and HOTCHKISS, JJ.

Einar Chrystie and Frank L. Crocker, both of New York City, for petitioner.

Mortimer C. Addoms, of New York City, for respondent.

PER CURIAM. We think respondent was guilty of such unprofessional conduct as to justify discipline. We credit him with the right to

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

protect his interests in the mortgaged property and with the motive so to do in the foreclosure proceeding; but in the steps which he took we think he exceeded the bounds of propriety and resorted to methods and to acts which were censurable. From first to last he sought and by deceptively drawn affidavits often succeeded in inducing the court to believe that the several purchasers were independent of the respondent and of each other, and were not mere dummies acting as screens behind which respondent concealed his identity. We will not attempt to enumerate in detail individual improper acts of which respondent was guilty. It is sufficient to point out that some were generic and may be said to characterize the respondent's general course of conduct. The following are examples: Deceptive methods by which several of the purchasers were procured to consent to act; dummies, pure and simple, from whom the actual situation was wholly or in part concealed, and who were thus enabled to make affidavits, more or less equivocal, of their good faith and of their pretended interests, which they were thus and with apparent honesty and in their own behalf seeking to protect. Again, the repeated putting forward, in affidavits and otherwise, of the pretended rights of various purchasers as grounds. for relief or objection by a succeeding purchaser, was simply dishon

est.

But, although respondent's conduct was unprofessional, it seems probable that it was incited to a considerable degree, and, therefore, that it is palliated, by the acts of the plaintiff's attorneys, who were unreasonable and oppressive in the course they pursued. This is evidenced by their demands for extortionate sums as so-called fees or charges for services in extending the mortgage or in postponing one or more of the sales, and their refusal at times and their inducing the referee to refuse what would seem no more than a reasonable postponement for passing title. The security for the mortgage seems to have been ample, and a receiver was in possession collecting the rents. Apparently plaintiff's attorneys refrained from at any time making a motion to compel the purchaser to complete, which would have brought the matter to a head, and by repeatedly asking for a resale, in the light of their general conduct, they induce the suspicion that they were seeking either wholly to confiscate or to impound as a fund for the payment of more fees the several payments of 10 per cent. made by each successive purchaser, rather than put an end to respondent's dilatory practices. On one side, the contest seems to have been pursued for booty and ransom, and on the other for delay. We take a more lenient view of the conduct of an attorney who under such circumstances resorts to practices which we cannot approve to protect his own individual interests than we do of the acts of one who has been unfaithful to a client.

For these reasons, although some of the members of the court are of opinion that the conduct of the respondent merits more severe discipline, the majority of the court are of opinion that, with this censure, it is unnecessary to take further proceedings in the matter.

(164 App. Div. 213)

POSS V. POSS. (No. 6174.)

(Supreme Court, Appellate Division, First Department. November 6, 1914.) DIVORCE (§ 218*)—ALIMONY PENDENTE LITE-ALIMONY AFTER GRANTING OF INTERLOCUTORY JUDGMENT.

Where, in an action for divorce, the husband was granted an interlocutory decree of divorce on the ground of adultery, providing for the entry of final judgment after the expiration of three months, and that upon the entry thereof the payment of alimony should cease, he was entitled, in the absence of facts from which it could be seen that there was reasonable ground to believe that the judgment was erroneous, and would be reversed upon an appeal, to the vacation of an order previously made for the payment of alimony pendente lite, he having paid all alimony due up to the entry of the interlocutory judgment, as such alimony is granted on the theory that the wife may not be guilty of the charge against her, and is ordinarily denied where it can be seen that there is no reasonable prospect of the wife's succeeding in defeating the action. [Ed. Note.-For other cases, see Divorce, Cent. Dig. § 639; Dec. Dig. § 218.*]

Appeal from Special Term, New York County.

Action by Frank R. Poss against Lillian K. Poss. From an order denying a motion to vacate an order directing the payment of alimony pendente lite, plaintiff appeals. Reversed, and motion granted. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Lorren M. Hart, of New York City, for appellant.

George Gordon Battle, of New York City, for respondent.

MCLAUGHLIN, J. This action was brought to procure an absolute divorce. After issue had been joined, the defendant moved for alimony and counsel fee. The motion was granted, and the appellant directed to pay $2,000 counsel fee and during the pendency of the action $500 a month alimony. The answer put in issue the allegations. of the complaint that the defendant was guilty of adultery. Issues were framed and the matter was sent to a jury to determine whether or not the defendant was guilty. After a trial lasting several days, a verdict was rendered in favor of the plaintiff, finding the defendant guilty of adultery as charged in the complaint. Upon this verdict and the findings of the court at Special Term as to the remaining issues, an interlocutory judgment of divorce was entered in favor of the plaintiff on the 29th of June, 1914.

The judgment decreed that the plaintiff was entitled to a judgment, to be entered as thereafter provided, dissolving the bond of matrimony and freeing the plaintiff from the obligations thereof, and that final judgment should not be entered until the expiration of three months. from the entry of the interlocutory judgment. The interlocutory judgment also provided that the plaintiff "be and he hereby is relieved from his obligation to support and maintain the defendant, by reason of her adultery, and that the payment of alimony cease with the signature and entry of a final judgment." The obligation of the plaintiff, however,

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

to pay alimony, is based entirely upon the order directing such payment pendente lite. There is no provision in the interlocutory judgment which requires the plaintiff to pay alimony prior to the entry of final judgment. It merely provides that all obligation to pay alimony shall cease with the entry of final judgment, leaving the order as the only mandate requiring the payment of alimony.

The plaintiff paid the counsel fee and all the installments of alimony to and including the date of the entry of the interlocutory judgment, and thereafter moved for an order vacating or modifying the order granting alimony pendente lite, so as to relieve him from further payment thereunder. The motion was denied, and he appeals.

Section 1769 of the Code of Civil Procedure gives the court discretionary power, during the pendency of an action, to make or modify the order requiring the husband to pay any sums necessary to enable the wife to carry on or defend an action, or to provide suitable support for her. It was under this section that the order was made directing the appellant to pay counsel fee and alimony. He complied with the order, as indicated, until the interlocutory judgment was entered, which judicially established that the defendant was guilty of adultery, and that at the expiration of three months plaintiff would be entitled to a final judgment dissolving the marriage contract.

The interlocutory judgment, it is true, did not dissolve the marriage (Matter of Crandall, 196 N. Y. 127, 89 N. E. 578, 134 Am. St. Rep. 830, 17 Ann. Cas. 874), nor did it affect the defendant in her status as a wife or as to her marital property rights (Burton v. Burton, 150 App. Div. 790, 135 N. Y. Supp. 248). But a wife has no inherent right to alimony upon an action brought by a husband for a divorce. It is granted only upon the theory that the wife may not be guilty of the charge made against her, and if the court can see when such a motion is made that there is no reasonable prospect of a wife succeeding in defeating the plaintiff's action, then as a general rule alimony is denied, since the adultery of the wife relieves the husband of the duty to support her. Hawkins v. Hawkins, 193 N. Y. 409, 86 N. E. 468, 19 L. R. A. (N. S.) 468, 127 Am. St. Rep. 979, 15 Ann. Cas. 371.

Here it has been judicially determined that the wife is guilty of adultery; and that fact having been so determined, it seems to me that the husband should be relieved of the payment of alimony, unless facts be presented from which the court can see that there is reasonable ground for at least believing that the judgment is erroneous and would be reversed upon an appeal taken therefrom. No facts are set forth from which the court can see that the finding as to defendant's adultery was not justified by the evidence, or that the interlocutory judgment establishing that fact is erroneous. I think the motion to be relieved from the further payment of alimony should have been granted.

The order appealed from, therefore, is reversed, and the motion granted, without costs. All concur.