
    Margaret McDonald, Appellant, v. Frank Ruggiero, Respondent.
    Second Department,
    March 4, 1910.
    Landlord and tenant — action for rent — evidence — surrender — precept issued by agent — issue of. precept before rent due.
    A precept in summary proceedings instituted by an alleged agent cannot be put in evidence by the tenant in an .action for rent to show a demand for possession by the landlord without proof of the agency.
    On the issue of a precept and the removal of the tenant in compliance therewith there is a surrender, and he is not liable for rent accruing after the issue of the precept.
    As rent payable in advance on a certain day is not due until the last minute of that day, a precept served before the expiration'of the day does not entitle the landlord to recover the rent under section 2258 of the Code of Civil Procedure on the, ground that it was due when the precept issued.
    Appeal by the plaintiff, Margaret McDonald, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 26th day of April, 1909, dismissing the plaintiff’s complaint.
    
      Walter E. Warner, for the appellant.
    
      Edgar E. Mead, for the respondent.
   Jenks, J.:

The plaintiff appeals from a judgment of the Municipal Court that dismisses the complaint at the close of the case. The action is to recover rent alleged to be due on April 1st, $150, pursuant to the lease between the parties. The plaintiff set forth the execution of the lease, her performance thereof, that the defendant had not. paid the rent due. April 1, $150, and further alleged that on August 1, 1908, $11 was due for.water rents which had not been paid.' The defendant denied the plaintiff’s performance, and denied that the rent “was strictly due and payable on April 1st, 1909,” and for a separate defense pleaded dispossession proceedings. The plaintiff contended that the defendant had the affirmative, and the defendant then went forward to prove that he had received a paper from a marshal on April 1, 1909, between the hours of 4 and 4:30 p. m. The paper was read in evidence, and is a precept.' The defendant testified that he started to move the same night; he moved out within a few days, and that no warrant was ever served. The precept was read in evidence under the plaintiff’s objection (and exception) that it was incompetent, immaterial and irrelevant, not within the issues and not binding on the plaintiff. We thin-lc that the exception was well taken, because the precept shows that the proceedings were instituted by an alleged agent, and before such proceedings could be held to constitute a demand there should have been proof of the agency. Such proceedings could be entitled and the precept issued in the name of the agent. (Case v. Porterfield, 54 App. Div. 109.) This rent seemed payable in' advance. The issue of a precept and the removal of the tenant in compliance therewith constitutes a surrender, and the tenant cannot be held for rent accruing after the issue of the precept. (McAdam Landl. & Ten. [3d ed.] 1273, citing Boehm v. Rich, 13 Daly, 62,, and other cases.) If the rent were payable on A.pril 1st, it was not strictly payable until'the last minute of that day (McAdam, supra, 929), and hence it was not payable when the precept was issued so as to save to the plaintiff the right of recovery afforded by section 2253 of the Code of Civil Procedure. But, as I have said, there was a failure of proof as indicated that made the exception fatal to the judgment.

The judgment is reversed and a new trial is ordered!, costs to abide the event,

Burr, Thomas, Rich and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  