
    Jacob Fleishauer and Julius Fleishauer, Respondents, v. Eugene C. Bell, Appellant.
    (Supreme Court, Appellate Term,
    June, 1904.)
    Summary proceedings — Maintainable although the lease provides foi a re-entry.
    The contention, that where a lease provides for re-entry summary proceedings for non-payment of rent cannot be maintained by the landlord, is without basis in law.
    Appeal by the tenant from the final order of the Municipal Court of the city of Hew York, thirteenth district, borough of Manhattan, awarding possession of the premises to the landlords in summary proceedings for the tenant’s nonpayment of rent.
    Rosenthal & Brown, for appellant.
    Wasserman & Jacobus, for respondents.
   MacLean, J.

The final order herein, in summary proceedings for nonpayment of rent, was proper, for at the time the proceedings were instituted there was at least a balance due and unpaid. The contention, that summary proceedings for nonpayment of rent may not be maintained by a landlord when the lease provides fop re-entry, is without basis in law, for the case of McMahon v. Howe, 40 Misc. Rep. 546, so holding, has incorrectly interpreted the Court of Appeals, in Michaels v. Fishel, 169 N. Y. 381, wherein it was determined merely that ejectment is the proper action for re-entry, when the lease provides for re-entry and reletting, if possession and right to a deficiency from reletting on account are sought, but if possession is acquired by means of summary proceedings, the lease, and so the relation of landlord and tenant, is terminated and the right to relet on account is lost. The final order must be affirmed.

Freedman, P. J., and Scott, J., concur.

Final order affirmed, with costs.  