
    The Rainier Company, Respondent, v. Terence P. Smith, Appellant.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Landlord and tenant — Rent and advances — Rights and liabilities — Eviction — Rent prior to issuing precept in summary proceedings.
    A tenant dispossessed by summary proceedings is liable for rent due at the time the precept is issued and not to the time of issuing the warrant.
    Appeal by the defendant from a judgment of the City Court of the city of Rew York, entered upon a verdict in ■favor of the plaintiff, rendered by direction of the court.
    John G. Snyder, for appellant.
    Howard Hasbrouck, for respondent.
   Lehman, J.

The plaintiff herein leased to one Timothy D. Healey certain premises at a yearly rental of $7,000, together with such taxes and Croton water charges as might be imposed thereon during the year. Healey agreed to pay the rent and taxes monthly in advance. The defendant was surety for Healey under the lease. Healey subsequently assigned the lease to the Harvard Automobile and Garage Company, but it does not appear that the plaintiff ever released Healey from any obligations under the lease. The plaintiff’s interest in the premises leased by it was through a lease to itself from Lewis M. Borden and Joseph F. Taylor, as landlords. On Uovember twenty-seventh a petition in summary proceedings to dispossess, entitled Lewis M. Borden and Joseph F. Taylor, landlords, against The Rainier Company, tenant, and Harvard Automobile Company, undertenant,” was filed in the Municipal Court on account of the failure of this plaintiff to pay rent to its landlords. On December second a final order was entered, according the possession of the premises to the landlords; and on December ninth a warrant was issued, and the Harvard Automobile Company vacated the premises on December tenth. Thereafter the plaintiff brought this action for the instalment of rent and taxes due Hovember first; for the instalment of rent and taxes due December first, and for the Croton water charges due December first. The facts recited above were not disputed, and the trial justice directed a verdict in favor of the plaintiff for the full amount.

While the plaintiff has not itself paid any rent to the landlords for either JSTovember or December, and this neglect has resulted in a breach of its covenant of quiet enjoyment to its tenant, nevertheless, I think the direction of a verdict upon the first cause of action for rent and taxes due on Hovember first was correct. This rent was due in advance, and the plaintiff was not required to allege or prove that it had complied with the terms of the lease. The rent had accrued on that date, and a subsequent breach by the plaintiff of a covenant of the lease could not deprive it of its rights. Hurliman v. Seckendorf, 9 Misc. Rep. 264; 10 id. 549. . Even a subsequent wrongful eviction on its part would be no defense to this action. Fuller v. Manhattan Construction Co., 44 Misc. Rep. 219. The trial justice was correct in excluding the evidence as to the alleged tender of rent by the subtenant to the landlords in the summary proceedings. Such a tender could not be material upon the issues in this action.

It seems to me, however, that the learned trial justice should have dismissed the second and third causes of action for rent, taxes and water charges accruing on December first. The trial justice apparently relied upon dicta that are to be found in several cases, that “ It is well settled that under this statute (Code, § 2253) the issuance of a warrant of dispossess terminates the lease and relieves the tenant from further liability except for such rent as shall have accrued prior to the issuance of the warrant.” Slater v. Bonfiglio, 56 Misc. Rep. 385 (City Court.) See also Adler v. Kramer, 39 id. 642, 644. The law, as laid down in the case of Michaels v. Fishel, 51 App. Div. 274; affd., 169 N. Y. 381, is that, “ although the issuing of the warrant for the removal of a tenant cancels the lease, still the landlord is not precluded thereby from holding the tenant for rent to the time the warrant was issued.”

In spite of these cases I think that the law is well settled that section 2253 means exactly what it says: The lease is cancelled by the issuing of the warrant for all purposes except that it does not prevent the landlord from recovering any sum of money, which was, at the time luhen the precept was issued, payable by the terms of the agreement, as rent for the premises; or the reasonable value of the use and occupation thereof, to the time when the warrant was issued, for any period of time with respect to which the agreement does not make any special provision for the payment of rent.”

In the case of Riglander v. Nile Tobacco Works, 21 Misc. Rep. 339, the landlord sought to obtain payment of an instalment of rent falling due on March first before the issuing of the precept and also rent claimed to have become due on April first while the summary proceedings were pending. This court, in a learned opinion written by Mr. Justice McAdam, considered the meaning of the statute and adopted the interpretation put upon this section by Mr. Throop, the codifier, in his notes (at p. 340): “ It seems only just that the issuing of a precept should bar any claim for subsequent advance rent,” but held that “ the occupation by the tenant of the demised premises from April first to April tenth entitled the plaintiff to recover the reasonable value of such use, because respecting that particular period or stated number of days the lease made no special provision for the payment of any fixed rent.”

In the case of Boehm v. Rich, 13 Daly, 62, the court held that, where rent was due on June second, proceedings were begun on that date, and the tenant removed on June third, he was not obliged to pay the rent due on June second, because no default in the payment of rent took place until midnight of that date.

I do not think that the subsequent case of Adler v. Kramer, supra, or Slater v. Bonfiglio, supra, is authority for any other rule. The statements of the law above cited were merely dicta. In the case of Slater v. Bonfiglio, the only question before the court was whether, after the landlord had obtained the premises by summary proceedings, he could hold the tenant for a deficiency in rent when he leased the premises to another party. It was immaterial, in this case, whether the tenant was bound to pay rent till the precept was issued or till the warrant was issued; and at one place the court says that the landlord could recover rent till the first event, and at another place till the second event. Moreover, as authority for the dictum quoted above, that the landlord could recover accrued rent till the issuance of the warrant, it cites various cases which are authority only for the proposition that the summary proceedings destroy all obligations created by the lease “ excepting such as had accrued at the time of the dispossession,” whether such rights he for the payment of the rent under the lease or for use and occupation. In the case of Adler v. Kramer, supra, the same statement of the law is based upon the same authority; and the distinction between the right to the rent reserved and the right to the value of the use and occupation is immaterial to the decision. In that case, the rent itself became due after the issuance of the precept; but it was not rent payable in advance, but was rent for a period already passed. Moreover, the judgment was not for the amount of this rent, but allowed the landlord to hold a deposit as liquidated damages. I am, therefore, constrained to the opinion that, on principle and authority and in conformity with the justice of the case, the plaintiff was not entitled to any rent or water taxes that became due on December first. In reaching this conclusion I have not overlooked the plaintiff’s contention that, since it did not bring the summary proceedings and did not voluntarily terminate the lease, it should be entitled to all instalments of rent due before the tenant was actually evicted, and that such eviction took place only on December tenth. Such a contention seems to me untenable. The plaintiff had by its own default placed the landlords in a position where they could terminate all interest of the plaintiff in this lease. Before December first the proceedings had been begun which finally terminated this interest, and from the commencement of these proceedings the plaintiff had no interest in the premises which would allow it to claim .rent payable in advance. In fact, I do not feel certain that the plaintiff could recover against the tenant even for use and occcupation; but we need not decide that question here, because in no event could it hold the surety for such use and occupation. It has by its own neglect changed the obligation of the principal debtor from one for rent reserved to one for use and occupation, and it has thereby released the surety.

The judgment should, therefore, be modified by providing for the dismissal of the second and third causes of action and, as modified, affirmed, without costs on this appeal.

Giegerich and Dayton, J.J., concur.

Judgment modified, and, as modified, affirmed, without costs.  