
    Charlotte F. Collender, Respondent, v. Thomas Smith et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Summary proceedings — Bent accrued before occupation by the present tenant.
    • Where a landlord takes summary proceedings to recover the possession of premises, a tenant, who seeks to retain possession, must pay. all the rent due, whether the same accrued during' his own occupation or during that of other persons who had held under the same ■ lease. . ,
    2. Saíne — Application of payments.
    The fact, that a tenant has' paid during his occupancy more than the amount of rent now claimed by the landlord to be due, is not material ■where it appears that the landlord lawfully applied payments, in the first instance,_ to arrearages of rent which existed when the tenant went into occupation; and where it further appears that this application was made with the consent of the agent of the tenant, who also promised to pay a balance still due.
    3. Same — Answer — Denial of indebtness for rent.
    An answer, interposed in such proceedings by a tenant, denying . that he failed to pay “all rents becoming due from him to the petitioner ” is neither a general or specific denial ofo any fact alleged in the petition; nor is an issue raised by an allegation “ that he had paid said landlord, the petitioner, all rents. becoming due to her by defendant since defendant became a tenant of petitioner.”
    4. Same — Burden of proof.
    Where the landlord proves the amount of rent due he may rest, and the burden is then upon the defendant to prove payment.
    Appeal by tenant, from final order made- in summary proceedings by the Minth District Court. .
    G. A. Moses (Gibson Putzel, of counsel), for appellant.
    H. M. Solomon (Henry W. Taft, of counsel), for respondents.
   McAdam, J.

The petition, verified March 6, 1897, alleges that on May 6, 1893,-the landlord made a lease to Mary T. Smith, demising to her the building known as No. 754 Columbus avenue for the term of nine years and eleven months from June 1, 1893, at $4,000 a year up to May 1, 1898, and $4,500 yearly thereafter, payable monthly in advance; that Mary T. Smith, the same day, .transferred the lease to Com-ad Stein, who, on April 17, 1896, transferred it to Thomas Smith, the person proceeded against as tenant (herein referred to by that designation); that there were due under the lease March 1,1897, $310.86, for the month ending October 1, 1896; $2,000 for the six months commencing October 1, 1896, and ending April 1, 1897, and $463.35 for unpaid water-rents, made by the terms of the lease part of the rent; aggregating $2,774.21.

The answer filed*by the tenant denied that he failed to' pay “ all rents becoming due from him to the petitioner.” This was neither a general nor specific denial of any fact alleged in the petition. His affirmative plea, which follows, is also open to criticism. He alleges “that he had paid said landlord, the petitioner, all rents becoming due to her by defendant since defendant became a tenant of petitioner.”

Through there was no allegation that the specific rent claimed had been paid, the language of the plea was broad enough to admit proof of such payment. The term of the lease commenced June 1, 1893, and the tenant acquired title thereto as assignee April 17, 18"96; and it is apparent that care was taken in framing his plea to limit its application “ since ” he acquired his right of possession, evidently for the purpose of avoiding any issue as to the payment of the prior rent. But that issue was unavoidable.

If the landlord had by action attempted to enforce a personal liability against the tenant as assignee of the term a 'different question would have been presented. As the landlord held no contractual relations with him he would have been liable to her on the privity of estate only, and then simply on such covenants as might have been broken during his possession as assignee. Frank v. R. R. Co., 122 N. Y. 221, and cases cited. This is not that case. As the court said in Jarvis v. Driggs, 69 N. Y. 147: “ The magistrate has no power to award judgment for the recovery of rent. H any rent whatever is due and unpaid, and there is a holding over by the tenant without permission after demand, the landlord is entitled to a warrant of dispossession.”

The proceeding was not in personam, but in rem, to recover the pQssession of the demised premises. The tenant could protect his possession under- the lease only by paying all the arrearages of rent due under it. He could not protect it by paying only what accrued .after he took possession, any more than a person buying mortgaged premises could avoid paying the back interest if he-wished to prevent foreclosure.

Hpon the trial the tenant testified to certain payments made by him, and because they amounted to more than the rent claimed he insists that his plea was sustained. -The difficulty is that the payments were first applied, as they lawfully might be, to rent in arrear before he took the assignment of the lease, leaving the balance due that is claimed by the landlord in her petition, and the ■ fact that he paid, more rent than accrued during his possession shows that he intended to pay the rent previously due. The- landlord’s agent testified that the payments made were so applied by the consent of the tenant’s agent, and that accounts were furnished to and retained by the tenant showing the application of the payments, that no 'objection was ever made to them, and the appellant’s agent even promised to pay the balance claimed. In addition to this many of the receipts were given in the name of the original tenant, evidencing an intention to credit the payments on the rent owing by her. Independent of any consent on the part of the tenant, as he had given no'different direction concerning the application of the payments, the landlord had the right to apply them as she did. Sheppard v. Steele, 43 N. Y. 60; Orr v. Nagle, 87 Hun, 12; 7 Wait’s Act. & Def. 415; 18 Am. & Eng. Ency. of Law, 237.

-The Code (§ 2244) permits the tenant to file an answer denying ' generally the allegations, or specifically any material allegation, of the petition, or setting' forth a statement of any new matter constituting a legal or equitable defense or counterclaim. Even assuming the form of denial adopted by the tenant to have been sufficient, which is not conceded (McClave v. Gibb, 11 Misc. Rep. 44), the landlord proved in the first instance the amount of rent due when the lease was admitted in evidence.

Saunders in his work on Pleadings and Evidence (vol. 2, p. 629), accurately states the law as follows: “ Under Plea Denying Rent in Arrear or Payment. The issue under this plea lies on the defendant; for the lease being proved, the reservation and amount of the rent appear by it. The plaintiff is, therefore, called upon for no further proof, but the defendant must prove actual payment.” . Indeed, whenever a written promise to pay a specific sum -or sums- of money is made, and the time appointed for payment has gone By, the production of the document by the promisee prima facie establishes the breach, whether the instrument be negotiable or not, and after it is in evidence it becomes incumbent .upon the . obligor to exonerate himself by his plea and proof of performance or excuse for nonperformance. Hicks-AIixanian v. Walton, 14 App. Div. 199.

The question below resolved itself into whether the tenant had satisfactorily sustained his plea, regarding it as one of payment. The evidence produced by the landlord clearly proved that after charging the rent due under the lease and crediting all payments on account, there remained due the entire sum demanded in the petition, and that it was therein correctly apportioned and specifically stated.

The credit of $500 claimed by the tenant for the assignment of the Ooates judgment was premature, as the landlord’s agent testified that the amount of this judgment was not to be credited'as so much money until collected from certain property then under foreclosure, from the proceeds of the sale of which it was supposed it might be satisfied. It was until then a mere security, and did not discharge any part of the debt.

Conger v. Duryee, 90 N. Y. 594, to which the tenant has called our attention, relates to common-law actions of ejectment, in which the landlord is seeking to enforce a forfeiture of the term — a remedy not favored — and has no application to summary proceedings, which are more liberal in them nature, because the party proceeded against may by paying the rent at any time before the issuing of the.warrant avoid all possibility of forfeiture.

The justice adopted the landlord’s theory of the case, and his finding in her favor on the facts leaves no solid ground upon which his conclusion can be successfully assailed.

The exceptions are without merit,. and the final order must be affirmed, with costs.

Daly,- P. I., and Bisohoff, J.," concur.

“Order affirmed, with costs.  