
    Abraham C. Cohen, as Agent of Celia Cohen, Respondent, v. Frederick E. Carpenter, Appellant. United Realty and Mortgage Company, Appellant.
    Second Department,
    November 27, 1908.
    Landlord and tenant — termination of lease by re-entry under defeasance clause — summary proceedings against sub-tenant — right of owner to answer after re-entry — evidence-—sub-tenant may show expiry of tenant’s lease — appeal from Municipal Court—errors not affecting merits.
    Where a lease provides that the landlord may re-enter and take possession on a breach of covenant by the lessee, he may make a peaceful re-entry on such breach and'take possession without resorting to legal proceedings. Having done so, the lease is terminated.
    A landlord who has so taken possession may answer in a summary proceeding brought by the tenant to oust a sub-tenant and show that the petitioner’s lease had terminated by a re-entry under a defeasance clause, for the owner is one in possession within the purview of section 2224 of the Code of Civil Procedure, his possession being that of the sub-tenant, especially where the latter has paid the rent to him after the re-entry.
    A sub-tenant sought to be dispossessed on summary proceedings may show that his lessor’s lease has expired by a lawful ré-entry by the owner.
    On appeal from the Municipal Court the Appellate Division will render judgment without regard to technical errors or defects not affecting the merits.
    Appeal by the defendant, Frederick E. Carpenter, tenant, and by the United Realty and Mortgage Company, owner in possession, from orders of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 3d day of April, 1908.
    
      William R. Conklin, for the appellants.
    
      Clarence L. Barber, for the respondent.
   Jenks, J.:

This is an appeal from a final order in summary proceedings in favor of the landlord, as petitioner, adjudging that' there is $99 rent due and that the petitioner have possession, and also from an order denying a motion to vacate and to set aside the final order. The petition was against Carpenter as tenant of an apartment in an apartment hotel. Carpenter filed an answer. The apartment hotel was owned by a corporation which I shall call for convenience the Realty Company. That corporation likewise filed an answer, and the final order was made after a trial. It appears that the Realty Company made a lease dated October 31, 1907, to the petitioner (or rather to his principal) for 5 years from the 1st of that month. The defendant Carpenter then occupied an apartment at the rental of $33 a month. He paid his rental for November, 1907, to the petitioner. After that time he paid rent to the Eealty Company. The lease inter alia provided that the petitioner should put the hotel in first class condition and should pay the monthly rental reserved on the 15th of each month, and if she failed to make the repairs or to pay the rent at the stipulated time, it should be lawful for the Eealty' Company to re-enter and to repossess. The issue tendered by the Eealty Company was that the petitioner fell into arrears for the month of November, 1907; that the Eealty Company demanded the rent without avail; that the petitioner failed to repair; that the Eealty Company by reason of these breaches of the covenants in the lease, re-entered the premises and repossessed itself of the same on November 30, 1907, and that it has ever since been in actual possession. The tenant denied that the petitioner was entitled to the rents for which she alleged he was in arrears, alleged on information and belief that the petitioner broke the lease to her from the Realty Company, and the said subsequent re-entry, repossession and possession of the Eealty Company. The appellants insist that the final order was erroneous for the reason that the evidence was sufficient to show that the lease of the Eealty Company to the petitioner had terminated on November 30, 1907, by the re-entry and repossession, and that the learned court erred in excluding certain evidence which bore upon the question of such a termination. The respondent contends that in any event the Realty Company could not re-enter for failure of the petitioner to pay rent, but that its remedy was limited to ejectment and perhaps summary proceedings. We are cited to the judgment in Michaels v. Fishel (169 N. Y. 381). But I do not read the judgment therein as denying the right of a landlord to make a peaceful re-entry without any legal proceedings. The question in that case is as to the legal procedure to be taken under the re-entry clause, and as stated by Vann, J., who wrote for the court, is, Does this mean only a re-entry in its technical sense as known to the common law, or does it also include the removal of the lessee by summary proceedings % ” I find nowhere in the judgment any expression that denies the legality of the step alleged to be taken by the Realty Company in this case. And on the other hand, the learned judge in the course of his discussion says: “In 1846 (distress for rent ’ was abolished in this State, but the remedy of re-entry still survives and is well known to the common law. (Laws of 1846, ch. 274.) It can be exercised only when the right is expressly reserved in the lease, for without such reservation the remedy of the lessor under the lease and independent of the statute, is confined to an action on the covenant. The method of exercising the right is by an action of ejectment to recover possession of the demised premises. At common law the right to re-enter, except when entry can be made without force, is simply the right to maintain ejectment, and we find no statute which has changed the rule.”' (The italics are mine.) Moreover the court in its later judgment in McCready v. Lindenborn (172 N. Y. 400) recognizes this right of entry. In that ease it was conceded that without resorting to force or to legal proceedings the owner took possession under the clause of the lease relating to re-entry, and the court say: “When the plaintiff re-entered under the defeasance clause no further rent, as such, could accrue, for the lease proper was at an end, and the relation of landlord and tenant no longer existed. . (Hall v. Gould, 13 N. Y. 127; Michaels v. Fishel, 169 N. Y. 381, 387.) ” I think that there was such right of re-entry as is contended for in this case. (Authorities supra, and see Hyatt v.Wood, 4 Johns. 150,158, cited as, authority in Wood v. Phillips, 43 N. Y. 156; Van Rensselaer v. Jewett, 2 id. 141; Bliss v. Johnson, 73 id. 529, 534; Cooley Torts [3rd ed.], 76; Alexander v. Griswold, 17 N. Y. Supp. 522; Lace’s Case, 4 City Hall Rec. 158.) A lawful re-entry by the lessor for breach of the covenant to pay the- rent would have terminated the lease. (Harding v. Austin, 93 App. Div, 564; McCready v. Lindenborn, supra ; McAdam Landl. & Ten. [3rd ed.] 624.)

I think that the Realty Company had the right to answer in this proceeding and to be heard upon the issue raised. It was one who was in possession or who claimed possession (Code Civ. Proc. § 2244), and its tender of such issue was within the purview of that section. (See, too, 3 McAdam Landl. & Ten. [3rd ed.] 170.) The word “ or ” as used in this section of the Code in connection with those who can answer is used in its copulative and not its disjunctive sense. Assuming that Carpenter attorned by the payment of the rent for November, 1907, to the petitioner, the rule that a tenant cannot dispute his landlord’s title does not apply, for the estoppel of the tenant simply exists so long as the title exists as it was when the tenancy began, and, hence, the rule,does not prevent the tenant from showing the expiry of the title. (Despard v. Walbridge, 15 N. Y. 377, citing Jackson v. Rowland, 6 Wend. 666, 670. See, too, Hetzél v. Barber, 69 N. Y. 1,15.) Certainly the Realty Company could establish the termination of its lease to the petitioner under its plea that it made a re-entry. Criticism is made that the allegation of the tenant that the lessee of the Realty Company “ broke the terms of said lease” isa coiiclusioii of law. This allegation is made in connection with the statement of re-entry and repossession and continued possession of the Realty Company. It does not appear that any objection to the pleadings was raised in the Municipal Court, and this court must render judgment without regard to technical errors or defects which do not affect the merits. (Mun. Ct. Act, § 326. See, too, Tifft v. Tifft, 4 Den. 175.) The point is made that the Realty Company had not possession of Carpenter’s apartment. But if it shtiwed title as owner and possession the presumption is that any other occupant at the time was in subordination to it. Moreover, it appears that Carpenter after the alleged repossession by the Realty Company paid rent to it. It certainly was material to show that the petitioner did not pay the rental reserved under the lease, and any inquiry to reveal such default should not have been excluded. I think that the order should be reversed, with costs,- and a rehearing should be had. The appeal from the order should be dismissed, without costs.

Woodward, Hooker, Gaynor and Rich, JJ., concurred.

Final- order of the Municipal Court reversed, with costs, and rehearing ordered. Appeal from order dismissed, without costs. 
      
      Laws of 1902, chap. 580.— (Rep.
     