
    D. Willis James, Plaintiff-Appellant, v. Henry A. Rubino, Defendant-Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    Lease — Reletting for account of tenant who has abandoned.
    Where a landlord, permitted by a lease to let premises for account ■ of his tenant who has abandoned, in good faith secures a new tenant for the remaining three months of the term upon condition that no rent shall be exacted for the first two of these months, the landlord may recover of the original tenant rent for the said first two months, as the reletting is beneficial to the latter since he has: escaped liability for one month’s rent.
    Appeal by both parties from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.
    Greene & Stotesbury (Louis W. Stotesbury, of counsel), for appellant.
    J. Noble Emley, for appellant.
   Leventritt, J.

The plaintiff leased to the defendant certain premises for a term expiring on the 1st day of October, 1899, at a monthly rental of forty dollars. The written lease provides that, in the event of default, the landlord “ may resume possession of the premises, and relet the same for the remainder of the term, at the best rent he can obtain for the account of the tenant, who shall make good any deficiency ”. The defendant moved out in April, 1899, but continued to pay rent until within, three months of the expiration of the term. The plaintiff relet to a new tenant for those three, and the succeeding twelve months, but, according to his proof, was compelled, in order to induce execution of the lease, to permit occupancy for the first two months without payment of rent. This action is brought to recover the rent reserved for those two months. The defendant contends that the act of the plaintiff constituted an acceptance of the surrender of the premises. The justice below allowed a recovery to the plaintiff, but not in the amount prayed for. He apportioned the aggregate rent stipulated in the new lease equally among the fifteen months of the term, and applying the ratable proportion for the two months upon the plaintiff’s claim, reduced it accordingly. From this determination both parties have appealed.

The right of the plaintiff to relet for the accountof the defendant-cannot be disputed. Hall v. Gould, 13 N. Y. 127; Morgan v. Smith, 70 id. 537. In reletting he acted as the agent for the defendant and the only question involved is his good faith. That has not been attacked. The uncontradicted testimony is that after repeated unsuccessful efforts, not resulting even in an offer, a new tenant was secured only on the condition that no rent should be exacted for the first two months. The defendant did not meet this proof or attempt to impeach it. It was at the landlord’s option to allow the premises to remain vacant. Procuring a tenant for one of the three months for which the defendant would otherwise have been liable relieved the latter in part of the burden which in the absence of the reletting he would have had to bear. As was said in the case of Underhill v. Collins, 132 U. Y. 269, “ he is a gainer rather than a loser by reason of such reletting ”.

On the entire proof the plaintiff was entitled to a full recovery and the judgment must, therefore, be reversed.

Freedman, P. J., concurs.

MacLean, J.

(concurring)'. In this action for the recovery of rent, upon a written lease providing for payment “ in advance on the first day of each and every month ”, the plaintiff was permitted to introduce evidence to prove that not upon the first, but upon the fifteenth calendar day of the month, or the first day of each current month of the term, did rent become due and owing. The like privilege was denied the defendant, although thereupon measurably hinged the amount of his liability.' This was error for which the judgment should be reversed.

Judgment reversed and new trial ordered, with costs to plaintiff-appellant to abide event.  