
    Hyman Kleinstein, Appellant, v. Dora Gonsky and Others, Respondents.
    Second Department,
    October 12, 1909.
    Landlord and tenant — summary proceedings—breach of covenant — water rate.
    Breach of a tenant’s covenant to repair is not in the nature of a conditional limitation, and the landlord cannot base summary proceedings upon the claim that the lease has expired by reason of the breach.
    The fact that the lease allowed the landlord to repossess himself on a breach of such covenant by the tenant does not change the case, for unless the statute gives jurisdiction, the consent of the parties is ineffective to confer the same.
    Where water consumed was measured by a meter and the charge was determined by the quantity used, the water rate is not a “ tax ” within the meaning of subdivision 3 of section 2231 of the Code of Civil Procedure, and hence the tenant’s failure to pay for water does not entitle the landlord to maintain summary proceedings.
    Appeal by the plaintiff, Hyman Kleinstein, from a final order of the Municipal Court of the city of Hew York in favor of the defendants, entered on the 31st day of March, 1909.
    
      Isaac Miller, for the appellant.
    
      A. I. Nova, for the respondents.
   Burr, J.:

The respondents are in possession of premises belonging to the appellant, as his tenants under a lease which contains a covenant that all repairs of every kind, nature and description in and upon said premises * * * shall be done and complied with ” by the said tenants, and a further covenant that if default shall be made in any of the covenants herein contained, or in the prompt payment of the water bills that may become due upon said premises, then it shall be lawful for the said party of the first part [the landlord] to re-enter the said premises, the same to have again and to re-passess himself of the same.” Hpon a petition setting forth a violation of the covenant to repair and a failure" to pay water rents, the appellant asked for an order summarily removing his tenants from the possession of the said premises. The proceedings were dismissed, and from the final order of dismissal this appeal is taken.

The statute expressly specifies those cases in which a tenant of real property may be summarily removed therefrom. (Code Civ. Proc. § 2231.) The breach of a covenant to make repairs is not within either of the specifications, and will not authorize the proceedings any more than a covenant not to cut wood. (Oakley v. Schoonmaker, 15 Wend. 226.) The appellant contends that because the lease contains the language above quoted, that upon breach of said covenant the landlord may “re-enter the premises and re-passess himself of the same,” the parties have agreed that the fact of the breach of such covenant may be tried in summary proceedings. It would be extending the ordinary meaning of words to hold that the word “ re-possess ” was equivalent to the word dispossess ” as used in the statute and to base the right to maintain summary proceedings upon such construction. But unless the statute gives jurisdiction, even consent of the parties would be ineffective to confer the same. (Beach v. Nixon, 9 N. Y. 35.) The breach of a covenant to repair is not in the nature of a conditional limitation (Kramer v. Amberg, 4 N. Y. Supp. 613; 16 Civ. Proc. Rep. 445; affd., 115 N. Y. 655; Beach v. Nixon, supra), and the landlord cannot base his proceeding upon the claim that the lease has expired by reason of the breach of such covenant. The cases of Baylies v. Ingram (84 App. Div. 360; affd., 181 N. Y. 518), Anzolone v. Paskusz (96 App. Div. 188) and Pannuto v. Foglia (55 Misc. Rep. 244), cited by the appellant, have no application. Each of these was an action at law upon a covenant in the lease, and the question involved was whether the provisions of said covenant relative to a deficiency in the payment of the amount of rent reserved during the term covered thereby survived the termination of the tenancy by summary proceedings.

The water furnished to these premises was measured through meters, and the amount of the charge was determined by the quantity of water consumed. Under such circumstances a water rate is not to be deemed a tax within the provisions of subdivision 3 of section 2231 of the Code of Civil Procedure. (Laws of 1901, chap. 466, §§ 473, 475, as amd. by Laws of 1908, chap. 382; Silkman v. Water Commissioners, 152 N. Y. 327.)

The order appealed from should be affirmed, with costs and disbursements.

Jenks, Gaynor, Bich and Miller, JJ., concurred.

Final order of the Municipal Court affirmed, with costs and disbursements.  