Martin v. Lee.

MARTIN v. LEE.

[29 Misc. 333; 94 St. Rep. 515; 60 Supp. 515.]

(Supreme Court, Appellate Term. October 25, 1899.)

LANDLORD AND TENANT-TERMINATION OF LEASE-LIABILITY FOR RENT. Under Code Civ. Proc. § 2253, which provides that the issuing of a warrant for the removal of a tenant from demised premises annuls the rela tion of landlord and tenant, but does not prevent the landlord from re covering rent which was payable at the time of the issuing of the war. rant, a tenant under a lease by which the rent is payable monthly in advance is liable for a whole month's rent, though he vacated pursuant to a warrant after the rent was payable, but before the expiration of the month.

Appeal from Municipal Court, borough of Manhattan, ninth district.

Action by William A. Martin against William J. Lee. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

NOTE. RECOVERY OF RENT AFTER REMOVAL OF TENANT BY SUMMARY PROCEEDINGS.

a. References-Statute.

b. Unexecuted judgment-Surrender.

c. Rent payable in advance.

d. Rent payable after occupation.

e. Subtenants.

a. References-Statute.

For note on this subject, see 6 Ann. Cas. 228. In addition to what there appears and in connection therewith the following cases cover the adjudications on this subject.

The issuing of a warrant for the removal of a tenant from demised premises, cancels the agreement for the use of the premises, if any, under which the person removed held them; and annuls accordingly the relation of landlord and tenant, except that it does not prevent a landlord from recovering, VII. N. Y. A. C. 11

Argued before FREEDMAN, P. J., and MACLEAN and LEVENTRITT, JJ.

Page & Eckley, for appellant.

Jeroloman & Arrowsmith, for respondent.

MACLEAN, J. This action was brought to recover rent of certain premises for the months of March and April, 1899, payable monthly in advance, under a lease to the defendant for five months, commencing December 1, 1898. The defendant was dispossessed under proceedings begun April 7, 1899, and wherein the final order was made April 11th, and the warrant to dispossess was issued April 14th. On that last-mentioned day the premises were vacated. At the time of the agreement the defendant deposited with the plaintiff the sum of $150 as security for the payment of the rent for the term. This amount credited leaves due, according to the plaintiff's claim, the sum of $150, the agreed monthly rental, with interest.

The defendant contends that he is only liable for rent to April 14th, when the warrant to dispossess was issued and the premises

RECOVERY OF RENT AFTER REMOVAL OF TENANT BY SUMMARY
PROCEEDINGS,―continued.

by action, any sum of money, which was, at the time when the precept was issued, payable by the terms of the agreement, as rent for the premises; or the reasonable value of the use and occupation thereof, to the time when the warrant was issued, or any period of time, with respect to which the agreement does not make any special provision for payment of rent. Section 2253 Code of Civil Procedure.

b. Unexecuted judgment-Surrender.

A judgment in summary predings in favor of the landlord does not terminate the relation of landlord and tenant, so long as it remains unexecuted and the tenant remains in possession.

Newcombe v. Eagleton, 19 Misc. 603; 78 St. Rep. 401; 44 Supp. 401.

vacated; and he accordingly, on the return day of the summons, filed an order in writing to allow judgment to be taken against him by the plaintiff for $70, together with the costs of this action. The learned justice, however, rendered judgment in favor of the plaintiff for $150, the amount due under the lease on the 1st day of April, and this correctly; for although section 2253, Code Civ. Proc., provides that the issuing of a warrant anuuls the relation of landlord and tenant, it directly excepts a case like the present, in that "it does not prevent a landlord from recovering by action any sum of money which was at the time when the precept was issued payable, by the terms of the agreement, as rent for the premises." In fact, it appears that the section was in part framed to meet just such a case; for it is said of this section, in the report of the senate committee that it is new in form in accordance with the construction of certain sections of the Revised Statutes, established by the authorities, which authorities are cited in the notes of one of the revisers (Mr. Throop) who adds "that the section settles the doubt left by those cases respecting rent due in advance." The judgment should be affirmed, with costs to the respondent.

Judgment affirmed, with costs to the respondent. All con

cur.

RECOVERY OF RENT AFTER REMOVAL OF TENANT BY SUMMARY

PROCEEDINGS,-continued.

Where after judgment in summary proceeding the tenant paid up and continued in possession the relation of landlord and tenant is not terminated and upon further default in payment of rent by the tenant the landlord can maintain summary proceedings thereon.

Voorhies v. Cummings, 42 App. Div. 260; 92 St. Rep. 1120; 58 Supp. 1120. A lease is terminated by a voluntary removal from the premises by the tenant after the final order is made but before the warrant is issued and there can be no recovery by the landlord for the subsequent unexpired term of the lease.

Gallagher v. Reilly, 16 Daly, 227; 31 St. Rep. 556; 10 Supp. 536.

The landlord cannot keep the lease alive by refusing to accept a surrender of the premises after final order made and by notice to the tenant that he does not intend to have the warrant issued.

Baldwin v. Thibadeau, 43 St. Rep. 157; 17 Supp. 532.

RECOVERY OF RENT AFTER REMOVAL OF TENANT BY SUMMARY

PROOEEDINGS,-continued.

c. Rent payable in advance.

Where the entire rent is payable on the first day of the month the landlord can recover the same in an action, notwithstanding the tenant is dispossessed by summary proceedings during that month and the tenant is not entitled to any deduction for the portion of the month subsequent to his dispossession.

McNulty v. Duffy,

93 St. Rep. 592; 59 Supp. 592.

Where the precept is issued near the end of the month but does not eventuate in an order of dispossession till after the first of the following month, the landlord can recover rent only to the time of dispossession, notwithstanding under the lease an entire month's rent was payable in advance on the first of the month in which dispossession was effected.

Riglander v. Nile Tobacco Works, 21 Misc. 339; 81 St. Rep. 188; 47 Supp.

188.

Where a tenant is dispossed during the month by summary proceedings for failure to pay the month's rent in advance as required by the lease, the tenant cannot recover the amount of a month's rent, less the ratable proportion of the month's rent prior to dispossession, which had been deposited with the landlord to secure the performance of the lease by the tenant. Rice v. Bliss, 66 How. Pr. 186.

In Boehm v. Rich, 13 Daly, 62, the landlord served a summons in summary proceedings on his tenant on the 2nd day of June, being Monday, and the tenant vacated the next day, and before the time of the return of the summons. It was held that the landlord could not recover the rent for the month of June, notwithstanding it was payable in advance, on the first of the month, for the reason that the first day of the month being Sunday the tenant had all of Monday to pay the rent and was not in default when the summons was served and the transactions amounted to a surrender of the premises at the request of the landlord.

d. Rent payable after occupation.

The landlord may maintain an action as for rent for the occupation by the tenant for that part of a month prior to dispossession by summary proceedings, although the stipulated monthly rent is not due till the end of the month, and the landlord is not now required to sue as for a trespass for occupation after default in payment of rent.

Fursman v. Pennace, 15 Civ. Pro. 340; 18 St. Rep. 283; 2 Supp. 339. The landlord can recover the rent for that portion of the month up to the time the tenant was dispossessed, notwithstanding under the lease the monthly rental was not payable till the end of the month, the default in payment on which the proceedings were based being for previous months. Boswell v. Pettit, 18 St. Rep. 952; 2 Supp. 340.

Matter of Regan.

In Glaser v. Cumsky,

40 St. Rep. 872; 16 Supp. 89, the landlord had agreed to pay the tenant for certain machinery placed on the premises by the tenant, the last payment to be made "on the determination of the aforesaid lease." The tenant was dispossessed by summary proceedings during the life of the lease and in an action by the landlord for the rent, it was held that the tenant could not counterclaim the last payment stipulated to be made on such machinery, the tenant's default having annulled the agreement as to payment for the machinery by the landlord.

e. Subtenants.

The eviction of a subtenant by summary proceedings against his lessor is a good defense to an action brought against the subtenant by his lessor for rent accruing subsequent to such eviction.

Frommer v. Roessler, 12 Misc. 152; 66 St. Rep. 513; 33 Supp. 13.

A subtenant, whose lessor is also a subtenant, is not liable to the latter for rent subsequent to his voluntary removal after a final order in summary proceedings, procured by the owner of the building against his lessee, notwithstanding the subtenants were parties to the proceedings only by fictitious names.

Ash v. Purnell, 16 Daly, 189; 26 Abb. N. C. 92; 32 St. Rep. 306; 11 Supp. 54; 19 Civ. Pro. 234.

MATTER OF REGAN.

[29 Misc. 527; 95 St. Rep. 1074; 61 Supp. 1074.]

(Surrogate's Court, New York County. November, 1899.)

1. ATTORNEY'S LIEN-SURROGATE'S DECREE.

Irrespective of § 66 of the Code of Civil Procedure, which regulates attorneys' liens, an attorney has a lien upon a decree obtained in a surrogate's court for services rendered in obtaining such decree.

NOTE. ATTORNEY'S LIEN IN SURROGATE'S COUrt.

The amendment of 1899 to § 66 of the Code of Civil Procedure, which took effect September 1, 1899, extending the statutory attorney's lien to special proceedings, has removed the previous uncertainty on that point, except as to proceedings commenced prior to that time.

In Eisner v. Avery, 2 Dem. 466, Surrogate Rollins (May 1884) indicated that section 66 of the Code of Civil Procedure gave the attorney for an executor a lien upon a decree of the surrogate's court awarding a recovery to such executor against his co-executors.