Hyperlawhypertext legal databasebeta George Ringler & Co. v. Schmelzeisen 123 Misc. 394

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George Ringler & Co. v. Schmelzeisen

123 Misc. 394 Court Supreme Court, Appellate Term, First Department, Decision date 1924-06-24 English

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p. 394
George Ringler & Company, Landlord, Respondent, v. Christian Schmelzeisen, Tenant, Appellant.
Supreme Court, Appellate Term, First Department,
June 24, 1924.

Headnote

Summary proceedings to dispossess — receipt for rent prior to expiration of lease is not waiver of notice to quit — • tenant may not invoke rent laws for premises occupied in violation of lease.
A notice to the tenant to quit premises is presumed to be waived only when after expiration of the lease rent is received for a period after the expiration. It is good though a receipt for monthly rent is given prior to the expiration of the leased term.
It seems, that the rent laws cannot be invoked by a tenant in the aid of premises used for dwelling purposes where the terms of the lease specify that they shall be used for business purposes, since the occupancy was in violation of the lease.
Appeal by tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, eighth district, awarding possession to the landlord, after trial by the court without a jury.
Harris B. Rothkowitz, for the appellant.
Holley & Oxenberg (Myle J. Hdlley, of counsel), for the respondent.

The notice to quit was good despite the receipt, prior to the expiration of the lease, of rent for the month of March. It is only when after the expiration of the lease rent is received for a period after expiration that a waiver is presumed. Prindle v. Anderson, 19 Wend. 391 . But there is res adjudícala here and it is the law of the case that the notice is bad. For the benefit of the parties upon a possible subsequent proceeding, it may be well to say that in our opinion the rent laws protect the tenant from removal, upon the grounds here, from that part of the premises leased as a dwelling, and that the tenant cannot invoke the rent laws for the other part leased for business by using those premises for dwelling in violation of the lease.

Final order reversed, with thirty dollars costs, and final order directed for the tenant dismissing the petition, with costs.

All concur; present, Bijur, Mullan and Levy, JJ.

Order reversed and proceedings dismissed.

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