
    Jacob W. Riglander, Respondent, v. The Nile Tobacco Works, Appellant.
    (Supreme Court, Appellate Term,
    September, 1897.)
    1. Summary proceedings — Code, section 2253 — Rent ceases upon dispossession.
    The provisions of the latter portion of section 2253 of the Code of Civil Procedure were intended to allow a landlord to recover not only the rent of premises up to the time when the precept issues, but also their reasonable value up to the time when the warrant issues; but, although rent may, by the terms of a lease, be payable in advance, the landlord is not entitled to recover rent beyond the day when the warrant to dispossess the tenant issues.
    2. Same — Voluntary surrender equivalent to dispossession.
    Where, after the issue of the precept and the making of a final order, but before the issue of the warrant, the tenant voluntarily vacates, the landlord is not entitled to recover rent accruing subsesequent to the day when the tenant left, and this, notwithstanding the fact that the lease provides that the rent shall be payable monthly in advance.
    Appeal by defendant from judgment of the justice of the Second Judicial District Court, in favor of the plaintiff, for rent of certain premises known as loft “ B,” in Ros. 46 and 48 Broad street, Rew York, for the months of March and April, 1897, at $480 per annum, payable monthly in advance.
    Frederick G. Fishel and Ullo, Ruebsamen & Baldwin, for appellant.
    Edwin F. Stern, for respondent.
   McAdam, J.

It appears that on April 8, 1897, a final order for the removal of the defendant for nonpayment of rent, falling due March 1, 1897, was rendered in favor of this plaintiff, and that the tenant vacated the premises on April 10th before a warrant was issued.

It was conceded upon the argument that the proceedings to remove the tenant,-which terminated in said-order, were commenced on March'19, 1897, by the issuing óf a precept on that day-. This action was brought to recover not only the installment of rent falling due March 1st, before the issuing of the precept, but also rent climed to have become due on April 1st, while the summary proceedings were pending. The'jústiéS flowed recovery for the rent of .both móhths/^ iáhd-the'nóhtéhtioh of the ¿ppéllánt'is.'fBát such an-allowance was improper under section 2253 of the Code.

The Code provision is as follows:

^ “ The., issuingApf ^.^rmiW fpr, the.renioyal ;,pf ¡ a^tenp.tp from ,idemisedípr,emises ^cancels thengreement ^pr the.use,.of ,tE&)p¿Eemises, if, ¡any,,under .which the person,remold,held, .them; and ..anm/Ls ac-. .eordingly. the, relation of landlord, and.,tenant,, except, that., fk dQ§S. not pppyenf q, QÍ, WOPW’ preeept yjqg.fsgued, pqyalile by the terms of the agreepiei)it,.',g.s,,rprtfii fop.Jfyei-ppepJsesj,, or, the reasonable value of the 'Useir qnd occupation thereof.to the time jwhen ttie i^8f^f¡jwt^fpl&rió$ offíf^'fib^sés^ébt to'wliiejít fhe agreement 'does hot piafa dpy, special' provision for payment of rent. Code of Civ. Pro., § 2253. This/prpvisióh/ without 'th,e words in italics, was-tahén'from" the/preiuóus'htátúté (3 R. S. [6th ed.], p. 827, § 43), under /which it' wa's'held,°Mat'though a' lessee "be removed from demised premises'for nonpayment of rent, the landlord may nevertheless recover the same' 'rent by action, that the warrant simjdy .annuls .t^ie lease from the time ‘bfjfiie ^^^'íbr'.y^^'í^'i0éiMtíd^,,¿ha,^íf:óbtn^^}^(''í^r The/use !of tile ¿r^imSes By1 the’ tenant Ihtdnhbdiate the" défk.ült; *áhd the time he'is^S'iBpdssBsSbd, fcahhbtlBe 'reqpf ér^d’hy''áctíoh iml tihje léás'e,' :and‘ 'that'th’e' landlord’s daily' í'dmédy 'théréíóí is/ by’pio'cefeaing against the tenant as a trespásSfer. Hinsdale v. White, 6 Hill, 507; McKeon v. Whitney, 3 Den. 452; Crane v. Hardman, 4 E. D. Smith, 339; Cushingham v. Phillips, 1 id. 416; Davison v. Donadi, 2 id. 121; Whitney v. Meyers, 1 Duer, 266.

1 the ugd. The object , of the,,.words in italics, which were adde<l in -*!'P QÓ ' V’+U Á1 ■’ A ' "ñi ri "vvV A ta M"rt zl ‘ a-i >-i zi* tvi ri z'lz, P A a I+t aI* O O'aQ' A-í* '+ln A leáse. r . r. ,

íf;7Mív *¥hfoojp^ ■rtÍhé0cB!dífi.'eií1 hT Bis' nbWs'fo- tÉfe 'sébtidÁ/ iájfs'r f<:l| seems only just that the issuing of a precept should bar any%Mitii T8rte^teM4iificlíy^,7.m ÉUrmMiW¥‘MF&$<»y ftfifr null no hvi )0-iu n lo bW v«i .YQ-'íí. /H ib-nsM no of the warrant has been, fixed as the time ior the termination of such a, claim.” , ; ., <

i, The occupation by the tenant of the demised premises from April 1st to April 10th entitled the plaintiff to recover the reasonable value of such use, because respecting that particular period or stated number of days the lease made no special provision for the payment of any fixed rent. The agreement under which the premises were held, fixed the value of the use during the term of; the lease at $40 ppr month, and while this did not conclude either party on that subject, it furnished some evidence of value, there being no other proof on the subject.

The next inquiry is, whether the removal of the tenant under the duress, of, the judgment or final'order is tantamount to- the issuing of the warrant or his eviction thereunder. “The successful plaintiff in ejectment may, of 'course, at his election, if opportunity presents itself, take peaceable possession of the lands in controversy without the aid of the sheriff, and without procuring a writ of possession to be issued. The defeated party, in some eáses, 'surrenders the possession Voluntarily, and in others- the lands are unoccupied, or the defendant may have only had technical possession. In such cases the necessity of entering by virtue of the writ, or any'court process, is obviated.- The judgment is a complete protection to the plaintiff against an action of trespass for entering and taking possession of the land under such circumstances,” Sedgwick & Wait Trial of Title to Land, § 549; People ex rel. Scudder v. Cooper, 20 Hun, 486; Witbeck v. Van Rensselaer, 64 N. Y. at p. 31. If the landlord had under these- authorities the right to take peaceable possession of his land under the judgment before the final Avarrant, we cannot see why the tenant may not yield obedience to the' mandate of the law by removing without awaiting the final "writ of possession and actual .eviction or incurring further responsibility. EAren -an attornment by a tenant, otherwise void, is validated when made “pursuant to or in consequence of a judgment,” etc. 2 R. S. (9th ed.) 1818. So that parties proceeded against in possessory actions concerning realty may in some instances avert the inevitable by recognizing and acting on existing conditions.

“ As the defendant surrendered possession of the premises under the final order, the landlord thus secured the precise remedy he sought when he procured and served the precept.” Gallagher v. Reilly, 31 N. Y. St. Repr. 556; 10 N. Y. Supp. 536; Ash v. Purnell, 26 Abb. N. C. 92; 11 N. Y. Supp. 54; Baldwin v. Thibadeau, 28 Abb. N. C. 14; 17 N. Y. Supp. 532; Newcombe v. Eagleton, 19 Misc. Rep. 603. In these cases the removal of the tenant in obedience to the final order or even after -the issuing of the precept was deemed tantamount to a removal under a warrant enforced by the landlord, the proceeding being in its nature possessory; and by force of the Code provision before referred to the landlord’s "recovery herein is limited to April 10, 189.1, the date of removal, and cannot extend beyond it, notwithstanding the fact that the rent was payable monthly in advance.

It follows that the judgment must he reversed and a new trial ordered, with costs to the appellant to abide .the event, unless within ten days the plaintiff stipulates to reduce the recovery of damages to $53.33, in which case the judgment as modified will be affirmed, without costs.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed and new trial ordered, with costs to. appellant to abide event, unless within ten days • plaintiff stipulates to reduce recovery,. in which case judgment as modified will be. affirmed; without coSts. , . .  