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Kahn v. Rosenheim

68 N.Y.S. 856 Court N.Y. App. Term Decision date 1901-02-25 English

Delivered by O’GORMAN, J.

Contents

Majority

p. 856
(34 Misc. Rep. 192.)
KAHN v. ROSENHEIM.
(Supreme Court, Appellate Term.
February 25, 1901.)

Headnote

Landlord and Tenant—Rent Due in Advance—Pleading—Counterclaim.
Where suit was brought for rent which became due in advance on September 1st, and defendant failed to Interpose a counterclaim covering a portion of the lease for such month, alleged to have been surrendered and accepted by the landlord, the plaintiff was entitled to recover for the entire month’s rent.
p. 857
Appeal from municipal court, borough of Manhattan, Third district.
Action by Aleck Kahn against Wallace Rosenheim. From a judgment in favor of defendant, plaintiff appeals.
Reversed.
Argued before ANDREWS, P. J., and O’GORMAN and BLANCHARD, JJ.
Platzek & Stroock, for appellant.
Wasserman & Jacobus, for respondent.

A surrender and acceptance do not discharge liability for rent-already accrued, although payable in advance. The tenant’s remedy in such a case is by way of counterclaim or independent action. O’Brien v. Smith (Sup.) 13 N. Y. Supp. 408 , affirmed in 129 N. Y. 620 , 29 N. E. 1029 . In this case the rent became due in advance, on September 1, 1900, under the terms of the lease, and, as no counterclaim was interposed to cover the portion of the month of September alleged to have been surrendered and accepted by the landlord, the plaintiff was entitled to a judgment for the entire month’s rent.

The judgment, therefore, must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. .

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