
    Pine Hill Associates, Appellant, v Benedict Malveaux, Respondent.
    Supreme Court, Appellate Term, Second Department,
    January 17, 1978
    APPEARANCES OF COUNSEL
    
      Singer & Silverstein (Alan D. Singer of counsel), for appellant. Rabinowe & Rabinowe (Albert W. Rabinowe of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment and order of the court below (see 89 Misc 2d 234) unanimously reversed, without costs, and matter remanded to the court below for a trial in accordance with the opinion herein.

Where provided for in the lease, peaceable re-entry by landlord is permissible where the tenant has failed to pay the rent when due (see Fults v Munro, 202 NY 34; Michaels v Fishel, 169 NY 381; Cohen v Carpenter, 128 App Div 862; Ajax Wrecking & Lbr. Co. v Baker, NYLJ, April 21, 1977, p 12, col 4; 2 Rasch, NY Landlord and Tenant 2d ed, § 734.) However, this being a common-law right, the landlord must first make a demand for the rent. (See Earl v Nalley, 273 App Div 451, 454-455.) In the instant matter, the record is unclear as to whether or not a demand for rent was made before landlord exercised its right of re-entry and whether or not landlord, by its actions, willfully deprived tenant of his personal effects entitling tenant to the damages incurred thereby (10 NY Jur, Conversion, § 35; cf. Price v Hoyle, 82 Misc 2d 174). A new trial is necessary for further development of the facts.

Concur: Farley, P. J., Glickman and Gagliardi, JJ.  