
    Elmer E. Smathers, Appellant, v. Standard Oil Company of New York, Respondent.
    
      Landlord and tenant — lease — construction of provision of lease for payment of rent — when rent not payable in advance.
    
    
      Smathers v. Standard Oil Co. of N. Y., 199 App. Div. 368, affirmed.
    (Argued April 18, 1922;
    decided May 2, 1922.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 17, 1922, which reversed an order of Special Term granting a motion, by plaintiff, for judgment on the pleadings, and denied said motion. The action was to recover rent. The lease was for a term commencing March first, and provided that the rent should be payable in equal quarterly payments on the first day of the months of April, July, October and January in every year during the term, the first payment to be made upon the execution and delivery of the lease, of an amount proportionate to the time during which the tenant occupied the premises and received the rents up to the first of April in the year 1920, and the receipt of said rentals up to said first day of April, 1920, was acknowledged. After alleging that defendant entered into the possession of the premises under the terms of the lease and paid the rent up to the 1st of April, 1920, it is averred that on the 1st day of April, 1920, the plaintiff duly demanded of the defendant payment of the quarterly payment due on that date. The defendant’s answer substantially admitted the allegations of the complaint excepting the right of the plaintiff to demand payment of a quarterly rent on the 1st day of April, 1920, and affirmatively alleged that the rent was not due for the quarter commencing April 1, 1920, but would become due upon the expiration of that quarter. The following question was certified: “ Is the plaintiff in this case entitled to judgment on the pleadings? ”
    
      Caruthers Ewing for appellant.
    
      John Woodward, Peter M. Speer, Percy J. King and Martin Carey for respondent.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  