58 N.Y.S. 1120 | N.Y. App. Div. | 1899
This appeal presents a single question of law. The defendant-leased certain premises of the plaintiff by a written lease for the-term of one year, the same to take: effect on the 1st day of October, 1898, and continue till the 1st day- of October, 1899. The-rent reserved in the lease -was $285 for the term, payable; $85 on the 1st day of November, 1898, and $100 on the first' days of February and June following. The first installment was not paid, and the plaintiff for such failure instituted summary proceedings to dispossess the defendant for non-payment of rent. This proceeding terminated in a judgment dispossessing the defendant, and a warrant issued to the marshal to' carry into effect such judgment. When the marshal sought.to execute this proces‘s the defendant paid to him the installment of rent due at the time the .proceeding was instituted; thereupon the marshal forbore to execute the-
Section 2253 of the Code of Civil Procedure in terms provides : “ The issuing of a warrant for the removal of a tenant .from demised premises cancels the agreement for the use of the premises * * * and annuls accordingly the relation of landlord and tenant,” except that the landlord may thereafter maintain an action for rent which has accrued. It has been held by respectable authority that as the purpose of the proceeding was to recover possession of the premises, the tenant might recognize the right and surrender such possession in obedience thereto, in which event the relation of landlord and tenant would be abrogated even though the term had not expired and even though no warrant of removal issued. (Gallagher v. Reilly, 10 N. Y. Supp. 536 ; Ash v. Purnell, 11 id. 54.) The reasoning of these cases show that the cancellation of the lease is entirely for the benefit of the landlord to enable him to obtain possession of the demised premises free of incumbrance. When the tenant voluntarily surrenders the purpose of the section is accomplished. But when this status is obtained the parties are left as free to contract as though no relation between them had ever existed and no proceeding was ever had. The law under such cir
We are not called upon; however, to .determine this question-as a ’ legal conclusion as if. the facts were presented to us for determination as an original question. It is quite apparent that the court below, upon the evidence and the acts of the parties, might draw the inference that as the recovery of rent was the motive for the first
The judgment should, therefore, he affirmed.
All concurred.
Judgment of the Municipal Gourt affirmed, with costs.