
    Paul Shalet, Landlord-Appellant, v. “ Max ” Rauch, Tenant-Respondent.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Landlord and tenant — Re-entry and recovery of possession by landlord — Summary proceedings — Statutory provisions — Relation of land- , lord" and tenant.
    In a summary proceeding to recover possession of demised premises for non-payment of rent, brought by the owner and original landlord against the assignee of the term of a sub-tenant who has paid or tendered to the petitioner all the rent reserved by the original lease, the petitioner may not prove that, by the default of the original tenant, his lease was terminated and that the petitioner is, therefore, at liberty to charge a greater rent than that reserved in the original lease, as such proof would establish the fact that the relation of landlord and tenant did not exist between the parties to the proceeding and that it could not, therefore, be maintained.
    Appeal from a final order in summary proceedings made in favor of the tenant in the Municipal Court of the city of Hew York, Fourth District, borough of Manhattan.
    Herman Gettner, for appellant.
    Respondent filing no brief.
   Scott, J.

The landlord-appellant seeks to dispossess the tenant for the alleged nonpayment of eighty dollars, being forty dollars each for the months of December, 1905, and January, 1906. The property formerly belonged to one Moses M. Valentine who executed a lease of the entire property to one Harris Krakauer in March, 1904, for a term expiring January 31, 1907. This lease was assigned to Abraham Brandman on August 28, 1904, and by him to Abraham Saperstein on March 28, 1905. On September 1, 1905, Saperstein leased the portion of the building now occupied by the respondent to one Samuel Holtz, for the term of one .year and eight months from September !,• 1905, at the yearly rental of seven hundred and twenty dollars, payable in equal monthly instalments of sixty dollars in advance on the first of each month. Holtz, in turn, assigned this lease to the tenant-respondent who went into possession and was in possession when plaintiff acquired title to the property. The landlord-appellant at once insisted that he should receive one hundred dollars a month rent for the premises. He accepted sixty dollars o'n account of the December rent and fifty dollars on account of the January rent, the tenant offering and standing ready to pay the remaining ten dollars. This proceeding is instituted for the forty dollars a month which the landlord claims he should receive, over and above the sixty dollars reserved by the lease. The appellant’s brief is mainly devoted, to showing that the original lease was terminated by reason of a surrender, by Saperstein to Valentine in pursu anee, as it is said, of a condition contained in the original lease from Valentine to Krakauer, and to contending that Saperstein’s lease to Holtz was invalid. The discussion of these questions is irrelevant, because this is a proceeding for nonpayment of rent, which necessarily admits and recognizes the respondent’s status as a tenant, and not a hold-over proceeding. If the respondent is the tenant of the premises, as the petition alleges, it must be under the lease from Holtz, since no other tenancy or agreement to hire is shown. Hnder that lease, she is required to pay only sixty dollars per month and there is no warrant for the landlord’s claim .to more.

The final order was right and should be affirmed with costs.

Teuax and Bischoff, JJ., concur.

Final order affirmed, with costs.  