
    Gustav H. Liedtke, Appellant, v. Henry J. Meyer, Respondent.
    Second Department,
    March 31, 1910.
    Landlord and tenant ■— summary proceedings — final .order should award possession — partial eviction — appeal from Justice’s Court — failure of County Court to order new trial on reversal — power of Appellate Division.
    A final order in favor of the landlord in summary proceedings should award possession of the premises, not damages for unpaid rent.
    If there be a continuing partial eviction the landlord cannot maintain summary proceedings against the tenant for non-payment of rent.
    ' It seems, that where the County Court on reversing an order in summary proceedings made by a justice of the peace as against the evidence and law did not order a new trial before the same or another justice of the same county, the Appellate Division may modify the order of reversal, so as to direct the County Court to order a new trial.
    But where the order of reversal does not purport to give judgment for the defendant on the merits, the landlord will be left to a new proceeding.
    
      Appeal by tlie plaintiff, Gustav H. Liedtke, frdm an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 16th day of December, 1909, reversing a judgment of a justice of the peace in favor of the plaintiff.
    
      Andrew I. Albert, for the appellant.
    
      Ernest W. Tooker, for the respondent.
   Carr, J.

This appeal brings up for review an order of the County Court of Suffolk county which reversed a final order of a Justice’s Court in summary proceedings between a landlord and tenant for the recovery of possession of certain demised premises. The proceeding was begun on a petition which alleged the- tenant’s failure to pay the monthly rent after a demand by the landlord. The tenant filed an answer, setting up as a defense a partial eviction by the landlord. When the proceeding came to trial the defendant testified that the premises rented to him consisted of a store; one-half of a barn of certain dimensions and accommodations, and a chicken yard with room for 200 chickens. During his absence in the city, in the latter part of 1908, the landlord entered upon the premises, removed the old barn which had stalls for four horses and a large hay loft, and covering altogether 800 square, feet, and in place thereof erected a new barn with no hay loft and covering altogether only 306 square feet, and located the new harn in a place inconvenient for the tenant’s use. The tenant claimed that he had no notice of any intended changes and never gave his consent thereto. The plaintiff offered no evidence to the contrary. Notwithstanding this evidence the justice made a final order in favor of the plaintiff. That is to say, we assume that he made a final order, for both counsel so refer to it, though it is not printed in the record on the appeal. The order made,' whatever else its contents may be, awarded the petitioner the amount of the unpaid rent. From this order, or judgment, or whatever it was in foi’tn, the tenant appealed to the County Court. That court reversed the final order, with costs. From the order of reversal this appeal is taken.

If the order of the Justice’s Court simply awarded the petitioner the amount of the unpaid rent, then it was clearly erroneous, as such relief cannot be awarded in summary proceedings between a landlord and tenant. The final order, if in favor of the petitioner, should award possession of the premises and not damages for unpaid rent. If in this case it did award possession to the petitioner, then it was likewise erroneous. When there has been a partial eviction by the landlord he cannot maintain summary proceedings against the tenant for non-payment of rent while the partial eviction, continues. This rule may be very technical, but it has been' so long existing and so frequently applied as to be beyond any present questioning. (Sirey v. Braems, 65 App. Div. 472; People ex rel. Murphy v. Gedney, 10 Hun, 151; Hamilton v. Graybill, 19 Misc. Rep. 521; Heinrich v. Mack, 25 id. 597; Seigel v. Neary, 38 id. 297.)

The order of the Justice’s Court was, therefore, against the evidence and against the law. Its reversal by. the County Court was, therefore, proper. On the reversal the County Court had power to order a new trial before the same or another- justice of the same county. (Code Civ. Proc. § 3063.) It did not, however, so order. Doubtless on this appeal we may modify the order of reversal in such manner as to direct the County Court to order a new trial before the same justice or another justice of the same county to. be designated by-the County Court. (Hartmann v. Hoffman, 76 App. Div. 449.) Inasmuch, however, as the order of reversal, as it stands, does not purport to give judgment for the defendant on the merits, it is not conclusive as to the. rights of the parties. (Ellert v. Kelly, 4 E. D. Smith, 12.) The landlord, if he feels so advised, may begin a new proceeding.

The-order of the County Court should be affirmed, with costs.

Hirsohbeeg, P. J., Burr, Thomas and Eich, JJ., concurred.

Order of the County Court of Suffolk county affirmed, with costs.  