
    Ida M. Newcombe, Respondent, v. Thomas Eagleton, Appellant.
    (Supreme Court, Appellate Term,
    March, 1897.)
    1. Lease — Termination — Summary proceedings.
    Where summary proceedings for nonpayment of rent are stayed by the justice to enable the tenant to pay, the acceptance of such rent by the landlord before the termination of the stay operates as a discontinuance of the proceedings, and leaves the justice without jurisdiction to issue a warrant, and, therefore,- a warrant of dispossession issued after such payment has been made and accepted does not terminate the lease.
    2. Trial — Refusal to charge as requested.
    A refusal of a request to charge upon a point not presented by the evidence is not erroneous. ■ -
    Newcombe y. Eagleton, 18 Mise. Rep. 751, affirmed.
    Appeal by the defendant from an affirmance by the Oity Court, General Term, of a judgment of the Trial Term, in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought against the defendant as surety for one Thomas E. Flannery, for rent under a lease of the premises Ros. 702 and 704 Washington street. The rent claimed was a balance of $100, due for August, 1895, and $400, due for September, 1895. The defense pleaded was that the tenant had been dispossessed by the landlord iñ May, 1895, by warrant duly issued from the Third District Court, under which the plaintiff took possession of the premises. .
    Emanuel J. Myers and Foley & Early, for appellant.
    Booraem, Hamilton, Beckett & Ransom (William H. Hamilton of counsel), for respondent.
   Daly, P. J.

It appears from the record that proceedings had been commenced in the Third District Court, by the plaintiff, as landlord, to dispossess his tenant, Flannery, for nonpayment of rent which fell due in May, 1895, under the lease upon which the defendant was surety for said tenant. The parties appeared in court on the day when the precept was returnable, May 28th. The tenant and his surety were both there. The tenant asked for a week in which to pay, and the justice granted a stay until May 31st. Thereupon the parties' left the court-room. The next cky, the 29th, the landlord received from the tenant a check for $400, and. the defendant, his surety, was notified of the fact. . The tenant remained in possession thereafter, paying rent for- June, July and August. It is claimed by the defendant that his obligation as surety was terminated by the fact that on the 31st day of May the justice.of the District Court signed, a warrant to dispossess the tenant, and .delivered it to the clerk of the court. It was- shown that the landlord did not apply for the warrant, and it appears to have been signed and delivered by the justice to the clerk of the court on the ,31st day of May, when the stay he had granted' expired'.

As the proceedings before the justice were stayed on the '28th of May, upon the promise of the tenant to pay the rent, and for the purpose of enabling him. to do so, the acceptance of the rent by the landlord before the termination -of- the- stay, operated ás a discontinuance of the proceedings, and left the justice with-;' out jurisdiction- to issue a warrant. The. Surety was a party to„ this arrangement and is of course bound by it. ■ He- consented" to the stay of proceedings, and the arrangement for. the payment by the tenant. Neither the lease nor- his agreement as surety - was affected, therefore, by the proceedings to dispossess, They were terminated before the issuing of the warrant,. which alone could put an .end' to the lease. , A

■■ The appellant in. this case-relies upon Ash v. Purnell, 16 Daly, 189; 11 N. Y. Supp. 54, which holds that a warrant is issued when made out by the justice and by him delivered to the clerk ready for. use, and upon- the provision of the. Code of - Civil Procedure, section 2253, providing that the issuing of a warrant for the removal of the tenant from the demised- premises cancels the agreement for the use of the. premises. ' In the. case cited it appeared that the warrant was signed and issued in due course- of the proceedings to dispossess, and that in anticipation of it -the tenant removed from the premises. The. case has no bearmg-úpb'n the-point in controversy here, the point there decided-being that where'' a tenant,. against whom proceedings to dispossess have ..been instituted, removes from the premises before the issuance of -the. warrant, by such removal and the subsequent issuance of the warrant .the lease is terminated. This is -so where, .even before tbe making of a final order,' and the landlord has merely sued out a precept to show cause, the tenant removes. No rent can become due on the lease after such removal, since it operates as a surrender and an acceptance of the premises, the landlord having got what he asked for and brought proceedings to compel. Baldwin v. Thibadeau, 28 Abb. N. C. 17; 43 N. Y. St. Repr. 157. The awarding by .the justice of a final order or judgment on the 28th of May, with a stay until the 31st, did not terminate the lease so long as judgment was unexecuted and the tenant remained in possession. Powers v. Carpenter, 15 Week. Dig. 155. The justice left it to the jury to determine, upon the evidence, whether, as claimed by plaintiff, the defendant and the plaintiff’s agent agreed that the rent should be paid on May 29th, and that such payment should end the proceedings. It does not appear from the record that the appellant objected to the submission of this question- to the. jury. The defendant asked and obtained an .instruction that ,the issuance of a warrant to dispossess relieves the surety from any further liability, but his request to charge that such liability is not and cannot.be renewed' by an oral agreement was refused. There was no error in this refusal, since the plaintiff did not rely upon an agreement to renew the contract of the surety. The agreement was made . before the contract' of suretyship could have been terminated by the, issuance of any warrant. The request, therefore, was upon a point not presented by the evidence. ' ■

Judgment appealed from affirmed, with costs.

MoAdam and Bísohoee, JJ., concur.

Judgment affirmed, with costs.  