*788Judgment of the County Court of Nassau county reversed upon the law and the facts, with costs, and judgment directed for plaintiff for $170, with interest and costs. The defense of an eviction was waived by reason of the tenant’s continuing in possession and paying the rent during August and September. (Merida Realty Co. v. Coffin, 123 N. Y. Supp. 120.) The evidence does not disclose an untenantable condition subsequent to a few days after July 26, 1926. (Ernst v. Wheatley, 93 N. Y. Supp. 1116.) In view of this disposition of the case, the appeal from the order denying plaintiff’s motion for a new trial is dismissed. Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.
