
    Samuel Rothbart, Appellant, v. Isaac Rothman, Respondent.
    Second Department,
    February 24, 1911.
    Landlord and tenant — agreement to vacate store — breach.
    A tenant who agrees with his landlord to vacate leased premises on September first and to relinquish any and all right or claim to continue in possession of the same after that date fails to carry out his agreement, where on September first actual possession of the store is maintained by his wife to whom he had previously executed a bill of sale of the business for which the premises were used and it appears that at the same time he contracted with a corporation to deliver possession of the store to it on September twenty-sixth.
    The landlord in such case can recover the consideration paid for the agreement to vacate.
    Appeal by the plaintiff, Samuel Rotlibart, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 6th day of October, 1910, dismissing the complaint at the close of the plaintiff’s case.
    
      Solomon S. Schwartz, for the appellant.
    
      Herman S. Bachrach, for the respondent.
   Hirschberg, J.:

The plaintiff, on the 6th day of August, 1910, was a tenant in possession of a certain store in the borough of Brooklyn by virtue ■ of a written lease with the defendant, the owner, which by its terms expired on September 1, 1910. The defendant had entered into a contract to sell and convey the premises and to deliver possession on September first, and, anticipating a claim on the part of the plaintiff to an extension of the lease by oral agreement, executed with the plaintiff on the 6th day of August, 1910, an agreement by virtue of which the defendant agreed to pay to the plaintiff the sum of $200, provided the plaintiff would vacate and surrender the premises on September first and relinquish any and all right or claim to continue in possession of the same after that date. The action is brought to recover the $200.

The plaintiff did not vacate or surrender the premises within the meaning of the agreement. On the contrary, on August 23, 1910, he executed a bill of sale of the business for which the store was used to his wife, and on the same day executed with a corporation named- S. Prussin & Co., a written agreement by which he bound himself “.to deliver possession of said store to the said S. Prussin & Co. on or before the 26th day of September, 1910.” He also sold and assigned to the corporation on that day the good will of the business. On September 1, 1910, the actual possession of the store was maintained by the plaintiff’s wife, he remaining in her employ as a clerk under an agreement with her; and it was correctly held in the Municipal Court that the property had not been vacated and surrendered within the meaning of the agreement sued upon. This court held, in Bedell v. Edgett (120 App. Div.' 451), as per head note, that “ Premises to be vacated must be unfilled and unoccupied, without a claimant, tenant or occupier.”

The judgment should be affirmed.

Jenks, P. J., Burr, Thomas and Rich, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs..  