
    Midboro Management, Appellant, v. J. Coleman Scal, Respondent.
    Supreme Court, Appellate Term, First Department,
    February 27, 1958.
    
      Arthur T. Kaplan and Irving L. Kalish for appellant.
    
      Myron J. Greene and Martin Greene for respondent.
   Per Curiam.

The written agreement, wherein tenant covenanted to vacate on September 30,1957 was based upon mutual considerations. It was coextensive with and contemplated a new reasonable rent and lease. The lease did not have the effect of merging the agreement into the lease. The lease merely recited the rights and obligations of the parties for the period fixed in the main agreement during which tenant was to remain in occupancy until the stated vacating date of September 30, 1957.

Landlord’s proceeding is brought pursuant to the provisions of subdivision (g) of section 8 of the Business Rent Law (L. 1945, ch. 314, as amd.). It did not seek possession under the automatic surrender clause in the lease. It sought possession by virtue of the independent separate written agreement wherein tenant agreed to vacate on or before a specific fixed date. This was within the contemplation of the statute.

The final order should be reversed, with $30 costs, and final order directed for landlord as prayed for in petition, with costs.

Heoht, J. P., and Timer, J., concur; Aurelio, J., dissents and votes to affirm on the opinion of the court below. (11 Mise 2d 1098.)

Final order reversed, etc.  