
    Aleck Kahn, Appellant, v. Wallace Rosenheim, Respondent.
    (Supreme Court, Appellate Term,
    February, 1901.)
    Rent —■ Effect of surrender and acceptance on rent payable in advance.
    Where rent payable monthly In advance has accrued, a subsequent surrender and acceptance of the premises, by the landlord, for a part of the month do not discharge, the liability of the tenant for the month’s rent and his remedy is to interpose a counterclaim or begin an independent action.
    Appeal 'from a judgment of the Municipal Court of the city of New York, third district, borough of Manhattan, in favor of the defendant. Action for rent.
    Platzek & Stroock, for appellant.
    Wasserman A Jsonbns. for respondent-
   O’Gorman, J.

A surrender and acceptance do not discharge liability for rent already accrued, although payable in advance. The tenant’s remedy in such a case is by way of counterclaim or independent action. O’Brien v. Smith, 37 N. Y. St. Repr. 41; affd., 129 N. Y. 620. In this case, the rent became due in advance, on September 1, 1900, under the terms of the lease, and, as no counterclaim was' interposed to cover the portion of the month of September alleged to have been surrendered and accepted by the landlord, the plaintiff was entitled to a judgment for the entire month’s rent.

The judgment, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Andrews, P. J., and Blanchard, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  