
    Rudolph Henninger, Landlord, Respondent, v. John Clay, Tenant, Appellant.
    Supreme Court, Appellate Term, Second Department,
    December 19, 1956.
    
      Lawrence M. Honig for appellant.
    
      Milton Gelman for respondent.
   Per Curiam.

According to the testimony the rent was due and payable on September 29, 1956. The tenant was not in default until the end of that day; therefore the service of the petition and precept on September 29, 1956 was premature.

The final order and judgment should be unanimously reversed, upon the law and facts, with $10 costs to tenant, and petition dismissed.

Pette, Hart and Di G-iovanna, JJ., concur.

Final order and judgment reversed, etc.  