Majority
p. 930Nerak Realty Corp., Respondent, v. Cargo Packers, Inc., Appellant. Supreme Court, Appellate Term, Second Department, March 24, 1959.
Jacob W. Friedman for appellant.
Michael Levine for respondent.
Under the circumstances here disclosed, no sum-
mary proceeding is maintainable against the tenant-appellant Cargo Packers, Inc., predicated on the tenant-assignee’s nonpayment of rent due under the lease. The landlord’s remedy, if it be so advised, is by way of an action at law at which its right to recover the rent here sued for can be litigated and determined (Radlog Realty Corp. v. Geiger, 254 App. Div. 352 ; S. Z. B. Corp. v. Weinman & Wynn, 53 N. Y. S. 2d 303 ).
The final order and judgment as against the tenant-appellant Cargo Packers, Inc., should be unauimously reversed on the
p. 931
law, with $30 costs to that appellant, and petition as against it dismissed with appropriate costs in the court below; without prejudice to the landlord’s right, if it be so advised, to bring an action at law for the rent claimed to be due.
Concur — Pette, Di Giovanna and Benjamin, JJ.
Final order reversed, etc.