118 N.Y.S. 949 | N.Y. App. Div. | 1909
The respondents are in possession of premises belonging to the appellant, as his tenants under a lease which contains a covenant that “ all repairs of every kind, nature and description in and upon said premises * * * shall be done and complied with ” by the said tenants, and a further covenant that “ if default shall be made in any of the covenants herein contained, or in the prompt payment of the water bills that may become due upon said premises, then it shall be lawful for the said party of the first part [the landlord] to re-enter the said premises, the same to have again and to re-passess himself of the same.” Hpon a petition setting forth a violation of the covenant to repair and a failure" to pay water rents, the appellant asked for an order summarily removing his tenants from the possession of the said premises. The proceedings were dismissed, and from the final order of dismissal this appeal is taken.
The statute expressly specifies those cases in which a tenant of real property may be summarily removed therefrom. (Code Civ.
The water furnished to these premises was measured through meters, and the amount of the charge was determined by the quantity of water consumed. Under such circumstances a water rate is not to be deemed a tax within the provisions of subdivision 3 of section 2231 of the Code of Civil Procedure. (Laws of 1901, chap. 466, §§ 473, 475, as amd. by Laws of 1908, chap. 382; Silkman v. Water Commissioners, 152 N. Y. 327.)
The order appealed from should be affirmed, with costs and disbursements.
Jenks, Gaynor, Bich and Miller, JJ., concurred.
Final order of the Municipal Court affirmed, with costs and disbursements.