
    Chaya Esther Shumer, Landlord-Appellant, v. Max Hurwitz, Tenant; Eli Scherlesinger et al., Under-tenants-Respondents.
    (Supreme Court, Appellate Term,
    December, 1905.)
    Landlord and tenant — Assignment and subletting — Distinction: Reentry and recovery of possession by landlord — Summary proceedings — Who may institute.
    The lessee of premises, who underlets them as long as she shall have the lease on said premises, with right of re-entry in case of the breach of certain conditions apd right to a delivery of possession at the end of the term, has a technical reversion and does not stand in the position of one who has assigned his entire term, and she may, therefore, maintain summary proceedings against her under-tenant.
    
      . Appeal by the landlord from a judgment of the Municipal Court of the city of Hew York, thirteenth district, borough of Manhattan, dismissing the summary proceedings and awarding possession of the entire building, Ho. 89 Kidge street, to the under-tenants.
    Manheim & Manhe'm, for appellant.
    Charles Fischer, for respondents.
   MacLean, J.

In this proceeding to recover possession of certain premises for non-payment of rent, it was claimed that rent was paid to the true landlord and that the landlord-appellant had divested himself of all right by assignment. By instruments in evidence, it appears that one Sender Jarmulowsky, on January 25, 1899, leased the premises in question to Chaya Esther Shumer for the term of ten years from September 1, 1899, at a rental of $85.59 monthly in advance; that, on May 5,1903, Chaya Esther Shumer let said premises to Max Hurowitz “ as long as the landlord herein shall have the lease on said premises ” at an annual rental of $1,800, payable in equal monthly payments in advance, with right,of re-entry in case of the breach of certain conditions and to a delivery of possession at the end or other expiration of the term; and that, on December 16, 1904, Chaya Esther Shumer and Meyer Shumer consented to a transfer of the latter lease to Elias Verschleiser. \yhile the lease between the original lessee and her lessor provided against the assignment, underletting or underleasing without consent in writing, it may be, so far as appears from the record, and no question thereto having been raised, that has been waived; wherefore regard needs only be had to this proceeding as one between the original lessee and her transferees, which was not the case of Stewart v. Long Island Railroad Co., 102 N. Y. 601. Herein there were reservations, not only of re-entry on breach of certain conditions, but of new rent, and, though there was a demise for the residue of the term, there was a reservation of delivery of possession at the end of the term, and so a fragment of the original term; for “ The right to possession on the last day would leave a fragment of that day of the term in the assignor and was sufficient to create a technical reversion and thus prevent a privity of estate between his lessee and ..the original lessor.” Stewart v. Long Island Railroad Co., supra, 611. Such reservations have been held sufficient to characterize the demise as a sublease and not an assignment. Post v. Kearney, 2 N. Y. 394, and Collins v. Hasbrouck, 56 id. 157, not disapproved though distinguished in Stewart v. Long Island Railroad Co., supra. The judgment and order herein in favor of the tenants must, therefore, be reversed and a new trial ordered.

Scott and Bisohoee, JJ., concur.

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