
    (October 30, 1973)
    40th Associates, Respondent, v. Edward Fenner, as Executor of Alan M. Fenner, Deceased, Appellant, and John Doe, Respondent.
   Order, Appellate Term of the Supreme Court, First Department, entered March 9, 1973, affirming a judgment of the Civil Court, New York County, of November 19, 1971, granting possession to the landlord and awarding the landlord rent arrears of $3,150, unanimously reversed, on the law and the facts, the judgment vacated and the petition dismissed. Appellant shall recover of landlord-petitioner-respondent $60 costs and disbursements of this appeal. The deceased had an office lease in petitioner’s building. After his decease, his executor continued to pay rent until April, 1971. At the end of April, the landlord proceeded in Civil Court for nonpayment of rent mistakenly naming the attorney for the estate as the executor. A warrant was executed pursuant to a default judgment entered in that proceeding, placing the landlord in "full possession of the premises.” In September, 1971, the landlord again brought a summary proceeding naming the correct executor and asking for rent arrears for the months of April through September, and it is that relief granted that is the subject of this appeal. The landlord having obtained undisputed possession, it cannot at a later date on the basis of a technical error of its own making, expect to reap an additional benefit. Concur — Nunez, J. P., Kupferman, Lane, Steuer and Capozzoli, JJ.  