
    Park Summit Corporation, Plaintiff, v. Martin A. Schenck, Defendant.
    City Court of New York, New York County,
    December 4, 1933.
    
      Leopold K. Simon, for the plaintiff.
    
      Davies, Auerbach & Cornell, for the defendant.
   La Fetra, Ch. J.

The defendant in the above-entitled action was a tenant of apartment 8-B in premises 1075 Park avenue, New York city, under a written lease which commenced on October 1, 1928, and expired September 30, 1933. Before the expiration of the aforesaid lease an action was commenced in foreclosure. In that action a receiver of the rents, issues and profits was appointed in March, 1933. In July, 1933, the receiver commenced an action in this court for the rent of the premises for the months of March, April, May, June and July at the rate of $312.50 a month. The defendant admits his liability for a balance due for the months of March, April and May of $300 and interest. He claims that in April, 1933, a new lease was entered into between him and the receiver in the foreclosure action for another apartment in the same building known as apartment 13-B. The term of the new lease ran from October 1, 1933, to September 30, 1935, and provided, among other things, for the removal from the apartment 8-B to the apartment 13-B, which defendant was to occupy rent free until September 30, 1933. Subsequent to the execution and delivery of the new lease by the receiver to the tenant, the action of foreclosure was discontinued, and by mesne conveyances or agreements title to the apartment house in question was conveyed to the plaintiff, the action in foreclosure was discontinued and the receiver discharged.

The authority of the receiver to cancel the old lease, thereby discharging the rent for June, July, August and September, and entering into the new lease for apartment 13-B, was undoubtedly under consideration in the foreclosure proceedings which resulted in the order discharging him as receiver of the rents, issues and profits, the discontinuance of the action and the transfer of title to the present plaintiff.

Partial summary judgment is ordered in favor of the plaintiff for the months of March, April and May, 1933, and motion is in all other respects denied. Order signed.  