
    COHEN et al. v. FRANKEL.
    (Supreme Court, Appellate Term, First Department.
    May 6, 1915.)
    1. Landlord and Tenant <@=>233—Rent—Deposit as Security—Dispossession.
    In an action for rent, the answer denied nonpayment and alleged that the tenant had deposited security, that dispossess proceedings had been brought and final order entered, and that before issuance of the warrant it was agreed that defendant should surrender possession, and that plaintiff might apply on the rent part of the deposit, which had been done. Held, that directing a verdict for plaintiffs on the pleadings, on the theory that, as the lease provided that the tenant’s liability should survive dispossess proceedings, there was no consideration for the agreement to extinguish the rent, was error, since the lease was not before the court.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§. 49, 940-944; Dec. Dig. @=>233.]
    2. Landlord and Tenant @=>199—Liability for Rent—Agreement to Release. Rent—Consideration.
    Where a tenant, who had deposited an amount to secure the payment of rent, agreed to forego the right to redeem after final order in summary proceedings to give up possession before issuance of a dispossess warrant, and to allow the deposit to be applied to pay rent accruing subsequently to the date of final order of dispossession, and surrendered possession, it was a consideration for the release of rent.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§, 741, 742; Dec. Dig. @=>199.]
    3. Trial @=>178—Motion for Verdict on Pleadings—Admission.
    On plaintiff’s motion for a directed verdict on the pleadings, the allegations of the answer must be taken as true.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 401-403; Dec. Dig. @=>178.]
    Appeal from City Court of New York, Trial Term.
    Action by David Cohen, Eva Wartels, and Mary Rosen against David Frankel. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered.
    Argued April term, 1915, before GUY, BIJUR, and PENDLETON, JJ.
    Jacob Manheim, of New York City, for appellant.
    Goldfein & Weltfisch, of New York City (Jos. Goldfein, of New York City, of counsel), for respondents.
   PENDLETON, J.

The action is for rent for January, 1915, under a three-year lease from February 1, 1914. The answer denied nonpayment ; alleged, as an affirmative defense, that the tenant had deposited with the landlord $1,000 as security for the rent, that dispossess proceedings had been brought and a final order entered, and that before the issuance of the warrant it was agreed defendant should give up possession, and plaintiff might and should apply to the payment of the January rent part of the deposit, and that in pursuance thereof defendant did surrender possession; and alleged that thereby the said rent had been paid. The court at the trial, before the taking of any testimony, directed a verdict for plaintiffs on the pleadings.

It needs no argument to show that to support such action the pleadings alone must be looked at, and yet it is evident from the record that the court acted, not on the pleadings alone, but on the terms of the lease, which was not before the court. The court evidently proceeded on the theory that, as the lease provided that the tenant’s liability should survive dispossess proceedings, there was no consideration for the agreement alleged in the answer. However this may be, the lease was not before the court, so that the ruling was, on that account, if no other, error. The agreement by defendant to forego the right to redeem, to give up possession without, or before, issuance of the warrant, and allow the deposit to be applied to pay the whole January rent, even for the period subsequent to the date of the final order, and giving up possession, were, under the circumstances appearing by the pleadings, all good considerations for the agreement. The answer, therefore, alleged a valid agreement to apply part of the deposit to the payment of the rent sued for, and performance of his part of the agreement by defendant. This, for the purposes of the motion, must be assumed to be true, and, if true, the facts constituted a defense.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  