
    Wingfoot Concessionaire, Inc., Respondent, v. Sunnyside Outdoor Recreation Center, Inc., Appellant.
    Second Department,
    November 27, 1931.
    
      Frederick W. Ritter, for the appellant.
    
      William Gold [George Goldberg and Zarah Williamson with bh-n on the brief], for the respondent.
   Per Curiam.

The sole issue in the summary, proceeding now pending in the Municipal Court of the City of New York is whether or not the failure of the tenant in the summary proceeding (the plaintiff in this action) to procure a policy of insurance, pursuant to the terms of a lease entered into by and between the parties hereto, to defendant as landlord, constituted a forfeiture of the tenant’s rights under the lease at the option of the landlord. The lease, bearing date the 1st day of April, 1931, is silent as to the time within which such insurance shall be furnished. The lease provides that it is operative only during the time that the swimming pool upon the leased premises is in operation, and that it is a summer rental.” When the plaintiff entered into possession is not disclosed. Insurance under a policy was furnished on the 24th day of June, 1931. Whether or not that was a reasonable time, depending upon all the circumstances of the case, is properly a question of fact to be determined in the summary proceeding. We are further of the opinion that, upon the record before us, this motion should have been denied for the reason that a similar application, demanding the same relief, was previously made, and denied by the Special Term held by a justice of the Supreme Court other than the one presiding in the court making the order now under review. The mere service of an amended complaint, without further proof, did not justify a new application without leave. Nor does the fact that the Municipal Court, at the close of the testimony in the dispossess proceedings, dismissed the petition, except as to the issue involving the tenant’s forfeiture by reason of its failure to procure insurance, bring the case within the rule enunciated in Carter v. Beckwith (128 N. Y. 312, 323) and Veeder v. Baker (83 id. 156).

The order should be reversed upon the law, with ten dollars costs and disbursements, and the motion to restrain the defendant from prosecuting the summary proceeding now pending in the Municipal Court of the City of New York denied, with ten dollars costs.

Lazansky, P. J., Young, Hagarty and Scudder, JJ., concur; Kapper, J., concurs upon the first ground stated in the opinion.

Order reversed upon the law, with ten dollars costs and disbursements, and motion to restrain defendant from prosecuting the summary proceeding now pending in the Municipal Court of the City of New York denied, with ten dollars costs.  