
    William A. Martin, Respondent, v. William J. Lee, Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    Lease — Monthly rent, payable in advance, is not cancelled by eviction during the month — Code Civ. Fro., § 2253.
    Under section 2253 of the Code of Civil Procedure providing that the issue of a warrant in summary proceedings shall not prevent a landlord from recovering by action any sum of money which was, at the time when the precept was issued, payable by the terms of the agreement for the use of the premises as rent therefor, a landlord may, where rent is payable in advance on the first day of a month, recover all the rent of that month, although he dispossessed the tenant as early as the fourteenth.
    
      ' Appeal by defendant from a judgment of the Municipal Court, ninth district, borough of Manhattan, rendered in favor of the plaintiff.
    Page & Eckley, for appellant.
    Jeroloman & Arrowsmith, for respondent.
   MacLean, J.

This action was brought to recover rent of certain premises for the months of March and April, 1899, payable monthly in advance, under a lease to the defendant for five months, commencing December 1, 1898. The defendant was dispossessed under proceedings begun April 7, 1899, and wherein the final order was made April eleventh, and the warrant to dispossess was issued April fourteenth. On that last-mentioned day the' premises were vacated. At the time of the agreement, the defendant deposited with the plaintiff the sum of $150 as security for the payment of the rent for the term. This amount credited, leaves due, according to the plaintiff’s claim, the sum of $150, the agreed monthly rental, with interest.

The defendant contends that he is only liable for rent to April fourteenth, when the warrant to dispossess was issued, and the premises vacated, and he accordingly, on the return day of the summons, filed an order in writing to allow judgment to be taken against him by the plaintiff for $70, together with the costs of this action. .

The learned justice, however, rendered judgment in favor of the plaintiff for $150, the amount due under the lease on the first day of April, and this correctly, for, although section 2253-of the Code of Civil Procedure provides that the issuing of a warrant annuls the relation of landlord and tenant, it directly ' excepts a case like the present in that “ it does not prevent a landlord from recovering, by action, any sum of money, which was, at the time when the precept was issued, payable by the terms of the agreement, as rent for the premises.” In fact, it appears that the section was in part framed to meet just such a case, for it' is said of this section in the report of the Senate committee, that it is new in form in accordance with the construction of certain sections of the Revised Statutes, established by the authorities,. which authorities are cited in the notes of one of the revisers, Mr. Throop, who adds “ that the section settles the doubt left by those cases respecting rent due in advance.” The judgment should be affirmed, with costs to the respondent.

Freedman, P. J., and Leventritt, J., concur.

Judgment affirmed, with costs to respondent.  