
    Margaret McDonald, Appellant, v. Frank Ruggiero, Respondent.
    Second Department,
    April 21, 1911.
    Landlord and tenant — rent — pleading — validity of precept as defense — evidence —• conversation with judge as to decision of court.
    A tenant who has defeated .a precept in summary proceedings on the ground that it was invalid and has remained in possession of the premises under the lease cannot allege that the precept-was valid and invoke it as a defense when sued for the rent.
    The court on appeal cannot j consider conversations which a suitor states that he had with the justice presiding at the trial as to how the case was decided, but it must r'ely upon the records of-the court.
    Appeal by the plaintiff, Margaret McDonald, from a judgment o'f the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 27th day of May, 1910, dismissing the complaint.
    
      Walter E. Warner, for the appellant.
    
      Edgar B. Mead, for the respondent.
   Thomas, J.:

On March 9, 1908, plaintiff, by written lease, let to defendant a store for a term commencing April 1, 1908, and ending December 31, 1909,. at the rent of $650, to be. paid as follows: $1-50 at the time of the‘¡execution of the leasé; $75- on June 15 and July 5, 1908; $150 On April 1, and on June 15 and July 5, 1909, $100; and the lease also provided that the lessee should pay the water rent on or before August first, “ and if not paid, the same shall be addedjto the rent then due of to become due.” The action was brought to recover the rent due April 1, 1908, and the sum of eleven dbllars water rent due, but not paid by the lessee. The answer denied that the rent was strictly due and payable on April 1,11909' and alleged that on such date plaint,iff duly commencjed proceedings against' defendant to recover from him the possession of the premises, wherein he obtained a precept requiring defendant to remove from the premises and surrende|T the same to plaintiff, or to show-cause why the possession of the premises should not be delivered to the landlord, and that by reason of such proceedings a precept was served upon defendant, he was forced and required to deliver the premises and the keys thereof to plaintiff, and that plaintiff accepted the same. The precept, issued April first and served on defendant April 2, 1909, was returnable on April fifth. On the precept is indorsed a recital of the tehant’s appearance and answer. The final order was made April seventh dismissing the precept. The precept also shows an obliteration by ink over the name of the justice, and it appears in the case at bar by the evidence of the clerk that the justice did at the outset mark L ” opposite the proceeding on the calendar, which indicated that the decision was in favor . of the landlord, and that he did sign the precept in such form as to give the landlord the possession, but that his attention having been called by the clerk to the fact that the precept was premathrely issued, he erased his signature and dismissed the precept. Defendant testified that he first learned of the changed decision of the justice at the time of the second trial of the action at bar; that he started to move out the night that he filed his answer in proceedings to dispossess him; that he attended court and told the justice that he would move; that he moved after the judge decided on April seventh that he would have to move; and that he finished moving about April eleventh. Notwithstanding this evidence of informal conversation between the justice and the defendant the record shows that the defendant in the proceedings to dispossess him filed an answer denying the allegations of the petition, that he recovered judgment dismissing the landlord’s petition, and that he continued in the premises under a claim of right under the lease until he was ready to move on the eleventh. Now this very precept which, at the instance of defendant was found to be premature and a nullity, is invoked for the purpose of establishing a surrender and acceptance of the lease; that is, it is urged that defendant may defeat the precept as invalid, and remain in possession of the premises under the lease, and invoke it as valid when sued for the rent for his continuous enjoyment under the lease. This court can rely not upon some conversation which a suitor states he had with the justice presiding at court, but] rather, upon the records of the court itself that have been- formally- made at the instance of such suitor, tlpon the record' presented plaintiff is entitled to recover the installment of rent due April first, together with the water taxes due in ¡August.

The judgment of the Municipal Court should be reversed and a new trial ordered.!, costs to abide-the event.

Tenes, P. J., HirschIberg, Carr and Rich, JJ., concurred.

’Judgment -of the Municipal Court reversed and new trial ordered, costs to abide the event.  