Tolk v. Cohen — 62 Misc. 230

Majority

p. 230

Herman Tolk and Moritz Tolk, Landlords-Respondents, v. Max Cohen, Tenant-Appellant.

(Supreme Court, Appellate Term,

February, 1909.)

Headnote

Landlord and tenant — Ke-entry and recovery of possession by landlord — Summary proceedings — Grounds — Default in payment of rent — Effect of payment of subsequent rent.

Where a landlord has collected rent due for October, he cannot maintain summary proceedings against the tenant because of his failure to pay the rent for September.

Appeal by the tenant from a final order in summary proceedings, rendered in favor of the landlords in the Municipal Court of the city of Hew York, second district, borough of Manhattan.

Jerome Ullman, for appellant.

Nathan Tolk, for respondents.

The relation of landlord and tenant existed between the parties. In the early part of October, 1908, the landlords instituted summary proceedings to remove the tenant for the failure to pay the rent for October, 1908. After the precept was served, the tenant paid the rent into court, and the proceeding was marked “ settled.” Subsequently, the landlords instituted another proceeding to remove the tenant, upon the ground that the rent of .the premises for the month of September, 1908, had not been paid. Ir. this proceeding, a final order was rendered in favor of the landlords. The tenant appeals from this final order.

The question presented for decision is whether a landlord may institute summary proceedings against a tenant because of a failure to pay a month’s rent when he has already collected the rent due for the next month ?

Summary proceedings are statutory and can only be instituted in the cases provided by statute. A tenant may be

p. 231

removed, in these proceedings, for the nonpayment of rent due under a lease, only when he holds over “without the permission of the landlord.” Code Civ. Pro., § 2231. In accepting payment for the October rent, the landlords clearly sanctioned the action of the tenant in holding over, or remaining in possession, up to that time. Under these circumstances, the tenant’s possession of the premises for the month of September cannot be said to have been without the permission of the landlords.

The landlords having failed to prove that the tenant held over in September without their permission, the proceedings should have been dismissed.

Gildersleeve and Giegerich, JJ., concur.

Final order reversed and proceedings dismissed, with costs.