
    Matter of the Summary Proceeding by Patrick F. Dickinson, Landlord, Appellant, v. John J. Brown, Tenant, Respondent.
    Summary proceedings — Evidence — Sufficiency of evidence as to terms of lease.
    Appeal by the landlord from a final order in favor of the tenant, made in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.
    
      David McClure (Joseph Garrison, of counsel), for landlord-appellant.
    Bernard L. Winge (J. J. K. O’Kennedy, of counsel), for tenant-respondent.
   Per Curiam.

This is a proceeding to recover the possession of two. apartments. Under a former lease, expiring in November, 1903, defendant held a large store and two apartments. In November, 1903, a new written lease was made, covering specifically the store and making no mention of the two apartments. The landlord notified the tenant of an advance in the rent for the apartments. Tenant refused to pay, claiming that the apartments were covered by the new written lease, running from November, 1903, to November, 1908. The lease speaks for itself, and does not warrant this conclusion. The court dismissed the proceeding on the ground that the testimony of Taylor, the agent, showed that the apartments were under the same lease as the store. It appears, however, that all Taylor showed was that prior to November, 1903, defendant paid rent for both apartments and store, which is not denied by plaintiff.

The order should be reversed and a new trial granted, with costs to appellant to abide the event.

Present: Gildersleeve, Leventritt and McCall, JJ.

Order reversed and new trial granted, with costs to appellant to abide event.  