
    Albert H. Atterbury, Respondent, v. Laura Edwa, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Payment — Mode and sufficiency of payment — Bills and notes as payment.
    Summary proceedings — Parties — Under-tenants not necessary parties.
    Under-tenants are proper but not necessary parties to summary proceedings to recover the possession of demised premises and advantage cannot be taken by the tenant of the landlord’s failure to join the under-tenants as parties.
    The giving of bis note by a debtor for an existing debt does not discharge the debt unless the note is affirmatively shown to have been given and accepted in payment.
    Appeal by the tenant from a final order in favor of the landlord, entered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.
    Bernard J. Tinney, for appellant.
    Albert H. Atterbury, for respondent, in person.
   Hendrick, J.

This is an appeal by a tenant from a final order of dispossession and from an order denying a motion for a new trial. But two questions that merit discussion are raised on this appeal; first, whether the failure to make the under-tenants parties is fatal to the proceedings, and, secondly, whether the acceptance of the indorsed notes was a payment of the rent. Section 2235 of the Code does not require the under-tenants to be joined. All that it requires is that the petition shall name or'describe the persons- against whom the special proceeding is instituted. Under-tenants are proper parties to a summary proceeding, but they are not necessary parties. If a failure to name them as parties would defeat a landlord’s right to evict them, the objection may be taken advantage of by the under-tenants, and not by the tenant. The tenant cannot shelter himself behind bis snb-tenants. The notes were four in number, each for $300. They were given on April twenty-eighth for the amount of the rent for April and May. The April rent was $600. It become due on April first. As to that rent, two of the notes were given for an existing debt. The law is clear that when a note is given for an existing debt it does not discharge the debt, but the burden is on the debtor to show affirmatively that it was given and accepted in payment.; «nd the rule is the same even if the note is that of a third party. In this case there is no such proof, and there is evidence to sustain the opposite view. The evidence in the ease leads irresistibly to the conclusion that the whole transaction, so far as the tenant is concerned, was intended to defraud the landlord and deprive him of his property under the protection of law. This court, like the trial court, will not lend itself to advance such a purpose.

Giegerich and Ford, JJ., concur.

Final order affirmed, with costs.  