
    Eulogia Coro, Respondent, v. Augusta Greenwald, Appellant.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Landlord and tenant — Rent and advances — Rights and liabilities — Deposits and other security.
    Where rent is payable in advance under a lease which is terminated upon the ninth of the month by the execution of a warrant in summary proceedings for non-payment of rent, the tenant is not entitled to recover a deposit, equal to one month’s rent, which was to be returned upon the expiration of the lease.
    MacLean, J., dissented.
    Appeal by the defendant from a judgment of the Municipal Court of the city of ¡New York, seventh district, borough-of Manhattan, rendered in favor of the plaintiff.
    Paul Hellinger, for appellant.
    ■Knox & Pooling (John T. Pooling, of counsel), for respondent.
   Gildersleeve, J.

Plaintiff hired premises of defendant for one year at rate of fifty-five dollars a month. At the time of making the lease plaintiff paid defendant fifty-five dollars and took following receipt therefor, viz.: Received of Mrs. Eulogia Coro fifty-five dollars ($55) fop security for one month’s rent which will be due to Mrs. E. Coro on the expiration of said lease.” Plaintiff paid her rent up to and including the month of July, 1905, but she defaulted on the August rent. Pefendant instituted summary proceedings to evict her on the 4th of August, 1905, and on August 9, 1905, a warrant was issued; but, some time between the fourth and the ninth of August, plaintiff moved out and, on August ninth, defendant re-entered upon said premises and took possession thereof. The plaintiff brought this action to recover the fifty-five dollars given as security, as aforesaid, which was to be returned to her on the expiration of the said lease.” The justice allowed plaintiff thirty-nine dollars and seven cents, apparently made up as follows:

Amount of deposit ............. $55 00

Less rent for 9 days of August.... 15 93

Leaving . . ............... $39 07

For this sum, together with tvro dollars costs, judgment was given for plaintiff. Defendant appeals. The lease was terminated by the issuing of the warrant and re-entry of the landlord on August ninth. The tenant, upon her removal from the premises in summary proceedings for nonpayment of rent, was entitled to recover the deposit, less the amount of rent in arrears at the time the lease was terminated by her dispossession. Yannuzzi v. Grape, 46 Misc. Rep. 559. The rent for August-became due in advance on the 1st day of August, under the lease, and amounted to fifty-five dollars. This was not paid and was in arrears at the time of the termination of the lease. In the case of Caesar v. Rubinson, 174 N. Y. 498, the court says: “The entry of the landlord under the warrant, issued upon the judgment in the proceedings to dispossess the tenants for failure to pay the forty-five dollars, canceled the lease and annulled the relation of landlord and tenant. When the landlord elected to assert that right he waived all claim to the deposit, except so far as it was necessary to apply it in payment of rent then due or accrued.” In the case of Bernstein v. Heinemann, 23 Mise. Bep. 464, the Appellate Term held that where the rent is payable monthly in advance, under a lease for one year, a landlord is entitled to a whole month’s rent, notwithstanding the tenant was dispossessed, by virtue of a warrant issued in summary proceeding's, before the expiration of the month, for default in payment-; and the court cited many authorities in support of that doctrine.

The judgment must be reversed and, as there is no dispute as to the facts, judgment for the defendant ordered for the amount of -her counterclaim, with costs.

MacLean, J. (dissenting).

The plaintiff sued to recover a sum certain, deposited with the defendant as security for rent of certain premises, from which she removed and into which the defendant re-entered within, the time of the service of the precept to dispossess and the execution of the warrant therefor. The defendant counterclaimed for rent that had accrued and become payable by the terms of the lease on the first day of the month, and prior to her repossession of the premises. This was her right, notwithstanding the termination of the lease by summary proceeding, for “ at common law the lease must expire before an action can be brought, and then debt is the proper action.” Norton v. Vultee, 1 N. Y. Super. Ct. 384, 389. The judgment for the plaintiff for the amount of her deposit, less the value of her use and occupation, was error.

The judgment should, therefore, be reversed and judgment should be ordered in favor of the defendant upon her counterclaim, with costs.

Judgment reversed, and, as there is no dispute as to the facts, judgment for defendant ordered for amount of her counterclaim, with costs.  