
    Robert A. Cheesebrough, Respondent, v. B. Franklin Lieber, Appellant.
    (Supreme Court, Appellate Term,
    November, 1896.)
    Landlord and tenant — Bent — Abandonment.
    ' Where the rent is payable monthly, in advance, the right of the landlord to recover the same is not affected by an unwarranted abandonment of the premises during the .month or by a subsequent surrender or cancellation of the lease.
    Appeal from judgment of the Seventh Judicial Court rendered in favor of the plaintiff.
    Action for rent.
    
      Alfred A. Cook, for appellant.
    William C. Cammann, for respondent.
   Bischoff, J.

This action was' brought to recover rent due from the defendant to the plaintiff for- the month of May, 1896, under a yearly lease of an apartment in the latter’s premises.

The defenses set up were the plaintiff’s breach of a condition in the lease and an acceptance of the defendant’s surrender of the apartment.

It was claimed by the defendant that at the expiration of an original lease for one year, which commenced December 1, 1894, he entered into a verbal renewal agreement upon the condition that he have the privilege of using the door of the house for ingress and egress of his child in a baby carriage, and that this right was thereafter denied him, thereby justifying his removal from the premises. The renewal agreement was denied in toto by the -plaintiff’s witness, McMorrow, who testified further that the defendant was allowed to hold over after the expiration of the first lease in reliance upon the landlord’s legal right to treat the tenancy thus subsisting as in accordance with the terms of that lease, and that the tenant thereafter made appropriate monthly payments, agreeably to the original agreement, up to the date of his abandonment.

Upon this conflict of fact the justice’s determination against the defendant’s story was properly within his province, and we find no reason for disturbing his conclusion, therefore, that the tenancy, at.the period in suit, was based upon the terms of the original letting. McAdam on L. & T. (2d ed.) 32; 12 Am. & Eng. Ency. of Law, 758q.

According to the contract the rent was payable monthly, in advance, and the'instalment sued for became due prior to the time of the tenant’s removal from the premises, which took place, according to his téstimony, in the afternoon of May 1, 1896.

Therefore, the recovery of this instalment was properly allowed (McKeller v. Sigler, 47 How. Pr. 20), and, while the question of the plaintiff’s implied acceptance of the surrender, through reletting the premises during some later months, would be pertinent if the landlord laid claim to rent afterward accruing, an. inquiry into the matter is not material to this appeal.

The fact being found, upon satisfactory evidence, that the defendant’s abandonment of the premises was not justified by the landlord’s breach of the agreement of letting, and the rent having become due before any question of surrender had arisen, • and before there was any delivery of the' premises as to which an acceptance could be implied from subsequent acts of the landlord, the right to the recovery of such rent became apparent.

At most, the cancellation of this- contract took effect from the time of the tenant’s abandonment of the premises, leaving all rights which had accrued prior to that time unaffected, since no agreement for the abrogation of such rights was shown, and this rent was due at the time of the abandonment, and so the landlord’s right to it was not affected by the cancellation which took effect, if. at all, from that period. Sperry v. Miller, 16 N. Y. 407; Roe v. Conway, 74 id. 201; McGregor v. Board, etc., of N. Y., 107 id. 517.

Judgment affirmed, with costs.

Daly, P. J., and MoAdam, J., concur.

Judgment affirmed, with costs.  