Opinion
November 25, 1931.
Appeal from the Municipal Court, Borough of Bronx, First District.
Julius Paull, for the appellant.
Joseph Caine, for the respondent.
As the parties struck out of the printed clause in the lease — the clause relied upon by the plaintiff for a continuance of the tenant's obligation to pay rent and damages after dispossession by summary proceedings — the words "should the tenant be evicted by summary proceedings or otherwise," it must be assumed that it was the intention of the parties there would be no survival of the tenant's obligation to pay rent after dispossession in summary proceedings. The lease having come to an end by the tenant's removal in obedience to the precept ( Cornwell v. Sanford, 222 N.Y. 248), even though the agreement for surrender and acceptance pleaded by the tenant had not been made, the defendant was entitled to credit the security deposited by him against the January rent for non-payment of which the proceeding had been brought.
Judgment and order reversed, with thirty dollars costs, and judgment directed for defendant in the consolidation action dismissing the complaint on the merits, with costs.
All concur; present, LYDON, LEVY and CALLAHAN, JJ.