
    Pasquale Simonelli, Landlord-Respondent, v. Salvatore Di Ericco. Tenant-Appellant.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Landlord and tenant — Re-entry and recovery of possession by landlord — Summary proceedings — Default in payment of rent — Cost of repairs.
    The failure of the tenant to pay the cost of repairs to the demised premises, which, by the terms of the lease, it was provided should “ be added to the rent then due ” or deducted from any balance in the landlord’s hands, is not a sufficient ground for summary proceedings to recover the possession of the demised premises.
    Appeal by the tenant from a final order made in a summary proceeding in favor of the landlord, in the Municipal Court of the city of New York, first district, borough of Manhattan,
    
      Campbell & Moorp (Kneeland Moore,. of counsel), for appellant.
    Robert W. Bernard, for respondent.
   Gerard, J.

This is an appeal from a final order awarding to the landlord possession of the premises in the borough of Manhattan. The proceeding was based upon the alleged failure of the tenant to comply with the regulations and orders of the tenement-house department and to make what the landlord claimed were necessary repairs, and which, on default of the tenant, the landlord claimed that he made at an expense of $460, and which sum the tenant failed to pay when demanded.

In the lease the tenant covenanted to “ keep the demised premises, inside and outside, including the plate glass, in good repair at his own cost and expense and during the entire term he will at his like expense do and make all repairs of each and every part of the inside and outside of said premises, including the plate glass, and at the expiration of the said term will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, and, further, that he will comply with and obey all the regulations and orders of the Health Department * * * of the said City and of the Borough of Manhattan, and provided that in case the' tenant shall fail or neglect to make any necessary repair or comply with the Health Department or other Departments, then the landlord may enter said premises and malee said repairs and comply with said orders at the expense and cost of the tenant and in case of failure by him to pay the same, the same shall be added to the rent then due or the landlord may deduct the same from any balance or any sum remaining in his hands.”

The rent reserved in the lease was always promptly paid, and the monthly rent due February tenth was paid on that day; immediately thereafter the landlord’s agent demanded payment of the $460, which he claimed had been paid for repairs, and the tenant refused to pay the same. One week thereafter this proceeding was commenced.

We do not think that the court below had any' jurisdiction to dispossess the tenant for nonpayment of this sum. The term rent ” cannot be extended to mean cost of repairs. Bien v. Bixby, 18 Misc. Rep. 418. The jurisdiction of the Municipal Court in summary proceedings is defined by statute. Section 2231 of the Code sets forth the cases in which a tenant may be removed by summary proceedings. The case of a breach by tenant of a covenant to make repairs, or to comply with department orders, or to reimburse the landlord for his expenses in making such repairs or complying with such orders, is not mentioned. The removal must be for rent, or for some other default mentioned in the statute. For instance, the statute provides, where the tenant has agreed in writing to pay taxes or assessments levied on the demised premises, that he may then be dispossessed; and the other cases provided for are where the tenant has taken the benefit of an -insolvent act, or has been adjudicated a bankrupt, or the premises are used for improper purposes. The expression in the statute of these particular cases excludes the case which arises here.

The case of Cochran v. Reich, 20 Misc. Rep. 623, relied on by the landlord, was a case where there was actual rent due; and, further, that case was brought within the provisions of the statute providing for the proceedings upon failure of the tenant to pay a tax, which in that case was a water tax. In any event, even the language of the lease does not make this sum of money rent, but simply states that the sum shall be added to the rent then due; and, further, when the demand and refusal occurred, there was no rent then due and there was no rent due until the tenth of the following month. The final order should be reversed, with costs, and the petition dismissed.

Gildersleeve and Dayton, JJ., concur.

Final order reversed, with costs, and petition dismissed.  