
    Commonwealth Mortgage Company, Appellant, v. Charles R. Carruth, Respondent.
    First Department,
    December 3, 1909.
    Landlord and tenant — summary proceedings — payment of rent to former owner.
    Where the purchaser of mortgaged premises seeks to dispossess a tenant by summary proceedings for failure to pay rent, the tenant claiming that the rent for the whole term had been paid in advance to the former owner, must show that fact by clear .and convincing proof.
    The mere fact that the mortgagor gave a receipt for the full amount is not conclusive.
    Appeal "by the plaintiff, the Commonwealth Mortgage Company, landlord, from an order of the Appellate Term of the Supreme Court, bearing date the 8th day of April, 1909, and entered in the office of the clerk of the county of Hew York affirming a final' order of the Municipal Court of the city of Hew York rendered on the 14th day of January, 1909, which dismissed the petition of the landlord in summary proceedings.
    
      Alfred B. Cruikshank, for the appellant.
    
      Benjamin W. Moore, for the respondent.
   Scott, J.:

Appeal from the determination of the Appellate Term affirming a final order of the Municipal Court in a summary proceeding. .

The legal questions in volved in the present case are the same that are considered in the case of Commonwealth Mortgage Co. v. De Waltoff (135 App. Div. 33), decided herewith. Thelease involved herein was for three years at $1,000 a year, and the tenant claims to have paid the whole rent for the full terin in .advance. Although the justice of the Municipal Court found that the defense of payment had been established, the evidence to sustain it is most unsatisfactory. The tenant claims to have paid $500 in cash. This may well be true, but that amount would have been more than eaten up before the present landlord demanded rent of him. The remaining $2,500 the tenant claims to have paid by rendering professional services, or receipting for such services already rendered. To establish such a defense, in a case surrounded by such circumstances as surround the present case, the evidence of the services claimed to have, been rendered and their value should be clearly shown. It is not sufficient that the mortgagor receipted for the amount. The tenant’s evidence as to the nature and extent of the services was vague and unsatisfactory and there was no evidence whatever as to their value, or from which the court could estimate their value. The burden of proving prepayment rests upon the tenant, and the proof should be clear and convincing. The determination of the Appellate Term and the final order of the Municipal Court must be reversed and. a new trial granted, with costs in this court and the Appellate Term to abide the event.

Ingraham, McLaughlin, Laughlin and Houghton, JJ., concurred.

Determination of Appellate Term and order of Municipal Court reversed and new trial granted, with costs in this court and Appellate Term to abide event.  