Opinion
October 11, 1955.
Judgment and order unanimously modified on the facts and the law to the extent that the motion for summary judgment on the second counterclaim is denied and the counterclaim is dismissed and, as so modified, affirmed, without costs to either party. The appellant was not in possession either as a statutory tenant or under an expired lease but pursuant to an agreement settling the summary proceeding. It follows that the statutory provision requiring the giving of thirty days' written notice of intention to vacate is not applicable. Implicit in the agreement of September 22, 1952, was the requirement that the appellant should continue to pay the rental on the first day of each month. The failure to do so on December 1, 1952, and the removal of the appellant from the premises during that month entitle the respondent to judgment on its first counterclaim. Settle order on notice.
Concur — Cohn, J.P., Bastow, Botein, Rabin and Cox, JJ.