
    Frank T. Dunn, Respondent, v. Dominic Delcolle et al., Copartners Doing Business under the Name of Delcolle and McNeill, Appellants.
   Memorandum by the Court. The question presented on this appeal by defendants relates to the existence of a triable issue concerning whether plaintiff landlord resumed possession of the demised premises and rerented them on his own account, or whether he did so for the account of the defendant tenants pursuant to a clause in the lease. The defendants, without a trial, have been held liable to pay deficiencies arising over a five-year period between the rental stipulated in their lease and the amount obtained by the landlord from various new tenants to whom the same premises or portions thereof were relet from time to time. While none of the matters affirmatively presented by the defendants in opposition to plaintiff’s motion for summary judgment is sufficient to establish an acceptance of a surrender of the lease as matter of law, we think that whether the landlord resumed possession and relet on his own or as agent for the defendants presents a triable issue, in the determination of which the defendants should have opportunity to cross-examine the plaintiff’s witnesses.

Judgment and order reversed, with costs to the appellants, and the motion denied.

Peck, P. J.

(dissenting). Plaintiff clearly expressed his intention, as was his right, to relet the premises upon defendants’ vacation for defendants’ account. There is nothing to indicate that plaintiff changed his intention and is not entitled to enforce his right.

The judgment and order appealed from should be affirmed.

Glennon, Dore, Callahan and Van Voorhis, JJ., concur in Memorandum by the Court; Peck, P. J., dissents in opinion.

Judgment and order reversed, with costs to the appellants, and the motion denied.  