
    Henry Webendorfer, Landlord-Respondent v. Shie Landau, David Robson, as Trustee, etc., and Frank Pindyck, Tenants-Appellants.
    (Supreme Court, Apellate Term, First Department,
    February, 1915.)
    Summary proceedings — when commenced — landlord and tenant — when proceeding dismissed on ground that it was prematurely instituted.
    Where a landlord accepts from the trustee in bankruptcy of . his tenant, the rent for the month in which he sold the bankrupt’s interest in the lease, a summary proceeding for holding over commenced on the last day of said month should have been dismissed on the ground that it was prematurely instituted.
    Appeal by assignee and undertenant from a final order in summary proceedings awarding possession of the property in question to the landlord.
    Morris & Samuel Meyers, (Morris Meyers, and Samuel Horowitz, of counsel), for appellants.
    Harry A. Gordon, for respondent.
   Gavegan, J.

It is conceded that the landlord by his authorized agent entered into the written lease with one Landau for a term of two years with an option for two years more. Shortly after Landau entered into possession of the property and in January, 1914, an involuntary petition in bankruptcy was filed against him and a receiver appointed. On June 17, 1914, said Landau was adjudged a bankrupt and the same person who acted as receiver was appointed and qualified as trustee on July first. On July 28, 1914, all the assets of the bankrupt were sold, including the lease in .suit, which sale was confirmed on July twenty-ninth. On that day the trustee paid to said landlord’s agent eighty-five dollars, which was the amount of monthly rent specified in the lease. This proceeding was commenced on July thirty-first, the petition alleging that the tenants were hold-overs.

Although the landlord received the amount of the rent reserved each month he contended that he permitted the receiver and trustee to continue merely as a tenant at sufferance receiving rental not according to the terms of the lease hut as for use and occupation.

The trial judge refused to send to the jury the question as to whether rent was paid up to July 'thirty-first, but held that'the trustee paid only for the exact time, he was in possession, namely to July twenty-eighth, and that it made no difference how much money he paid for such use and occupation.

The check which paid the rent for the month of July was in the same form and -amount as had been paid each and every month by the receiver and on its face contained the words ‘ ‘ for rent of premises 336 East 103rd Street, July 1914.” It was accepted by the landlord’s agent and a receipt was given “ for rent for the month of July.”

The landlord having accepted rent for the entire month of July the proceedings herein were prematurely instituted and should have been dismissed.'

Guy and Bijur,. JJ., concur.

Final order reversed with costs and proceedings dismissed, with costs.  