
    Jacob M. Harris and Samuel Kohn, Petitioners, Appellants, v. Joseph Greenberger, Respondent.
    
      Landlord, and tenant—when the landloi'dis hound to put the tenant in possession of the demised premises.
    
    The rule that a landlord is not bound to put his lessee into actual possession of the demised premises does not apply to a lease of a store for a term beginning December first and ending December twenty-sixth, which provides for the payment of rent “ before possession of said store is delivered to said tenant,” and that the lessee shall be permitted to store goods in the basement of the premises from November fifteenth, “said privilege being included in this lease;” and where the landlord refuses to permit the lessee to store goods in the basement, as provided for in the lease, and is unable to put the lessee in possession of the demised premises on December first because a person who had leased them for the month of November insists upon holding over after the expiration of his tenancy, the lessee is relieved from further liability upon the lease, and the landlord cannot maintain summary proceedings against him.
    Appeal by the petitioners, Jacob M. Harris and another, from a final order of the Municipal Court of the city of New York, borough of Brooklyn, first district, made on the 9th day of December, 1899, dismissing the petition in a summary proceeding for the removal of a tenant of real property.
    
      Moses Feltenstein, for the appellants.
    
      A. M. Fragner, for the respondent.
   Willard Bartlett, J.:

In July, 1899, the parties to this proceeding entered into an agreement whereby the appellants leased to the respondent a store in the borough of Brooklyn for a term beginning on the 1st day of December and ending on the 26th day of December, 1899, at a rental of $650. The lease provided that the lessee should be permitted to store toys in the basement of the demised premises from the 15th day of November, 1899, “ said privilege being included in this lease.”

The lessee never acquired actual possession of the premises under this lease. On November 15, 1899, he endeavored to avail himself of the. privilege of storing goods in the basement, as provided for in the lease, but was refused permission to do so by the appellants, who informed him that they had made a lease for the month of November to one Ellis Roberts, and could only ask him as a favor to let the respondent into the basement. On December 1, 1899, the respondent gave the appellants a check for $625, the balance of the rent reserved in the lease ($25 having previously been paid), and demanded possession of the store. This was not given, whereupon the respondent stopped payment of his check. Although the evidence on the subject is very meagre, it appears that Ellis Roberts insisted upon holding over after the expiration of his tenancy for the month of November. The appellants instituted summary proceedings to dispossess him, but those proceedings were voluntarily discontinued a few days after they were begun.

Upon proof of these facts the Municipal Court dismissed the present proceeding, with costs in favor of the tenant. The appellants insist that this disposition of the case was erroneous, inasmuch as they were not required to put the respondent into actual possession of the leased store, but it was sufficient if they offered him simply the legal right of entry and enjoyment during the term covered by the lease. But the doctrine asserted in Mechanics & Traders' Fire Insurance Company v. Scott (2 Hilt. 550), that a landlord by leasing specified premises does not agree to put the lessee into possession thereof, was not applicable to the lease from the plaintiffs to the defendant in the present case. This lease provided for the payment of the rent “ before possession of said store is delivered to said tenant.” We think that this language imported an undertaking on the part of the landlords to deliver actual possession at the time when the tenant handed them his check for the rent. The evidence demonstrates their inability to do so, and their failure in this respect relieved the respondent from further liability upon the lease for any purpose.

This result is only just. The proof indicates that the landlords themselves were concerned in preventing the respondent from storing his goods on the premises before the beginning of the term, as provided for in the lease ; and the evidence in regard to their presence and conduct on the premises when the respondent was kept out goes far toward creating the impression that they co-operated in the exclusion of the respondent, or at least tacitly gave it their sanction. The institution of summary proceedings on their part against the other tenant would have been more significant if those proceedings had not been discontinued so shortly after they were commenced.

The judgment should be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.  