
    Jacob Goldstein, Appellant-Respondent, v. Stadler’s Shoes, Inc., Respondent-Appellant.
    Supreme Court, Appellate Term, First Department,
    June 4, 1936.
    
      
      Englander & Englander [Alfred 0. Englander of counsel], for the appellant-respondent.
    
      Henry M. Flateau, for the respondent-appellant.
   Per Curiam.

Rent for the quarter commencing June 1, 1929, became due in advance on that date. There being no evidence that defendant surrendered possession, or was evicted or otherwise damaged, during the quarter, the fact that title to the premises vested by condemnation in the city of New York August ninth following did not entitle defendant to recover on its counterclaim on the theory of apportionment for the period from that date to the end of the quarter. (Giles v. Comstock, 4 N. Y. 270; Gugel v. Isaacs, 21 App. Div. 503; affd. on opinion below, 162 N. Y. 636.)

Judgment modified by increasing plaintiff’s recovery to the sum of $906.75, with costs, and as modified affirmed, with costs to plaintiff.

All concur. Present — Levy, Callahan and Frankenthaler, JJ.  