#### Patrick Gallagher, Appellant, *against*Charles Reilly, Respondent.

(Decided June 2d, 1890.)

In summary proceedings against a tenant from month to month, for recovery of possession of the demised premises, a final order was made awarding possession to the landlord, and thereupon, without the issue of a warrant, the tenant removed from and surrendered the premises. *Held,*that the tenancy was terminated, and the landlord could not recover rent for the ensuing month. The provision of section 2253 of the Code of Civil Procedure, that the issuing of the warrant cancels the agreement and annuls the relation of landlord and tenant, is not to be restricted in its application where the issue of the warrant is not necessary.

Appeal from a judgment of the District Court in the City of New York for the Ninth Judicial District.

The facts are stated in the opinion.

*JE. T.*Rice, for appellant.

*J.*Vincent, for respondent.

Larremore, Ch. J.

This was an action to recover for one month’s rent of the house No. 81 East 116th Street. According to plaintiff’s testimony it was an oral hiring for eighteen months from October, 1888. A written lease was prepared, but was not shown to defendant until he demanded it, when he objected to the proposed lease and it was not executed. Subsequently a dispute arose between the plaintiff and defendant as to the amount then due.

The action might have been maintained for -the rent, but the plaintiff caused a precept to be issued and served upon defendant, requiring him “ forthwith to remove from the premises or show cause [before the court below], May 21st, 1889, why possession of said premises should not be delivered to the plaintiff.”

*228An answer was filed to the petition, and the cause was set down for trial. The defendant afterwards withdrew his. answer, and thereupon a final order was made awarding to petitioner possession of the property in question. The defendant, without waiting for the issuance of a warrant, moved from the premises May 27th, and sent the keys of the house to the plaintiff.

The court below held the plaintiff could not recover rent for the month of June, and under all the circumstances' of the case I think such adjudication was correct. The hiring of the premises, under the authority of *Prial*v. *Entwisle*(10 Daly 398), was from month to month *(Thomas*v. Nelson, 69 N. Y. 121).

After the final order of the justice awarding possession of the premises to the plaintiff in the summary proceeding, it was the plaintiff’s duty and right to surrender the premises and not to wait until dispossessed by warrant (McAdam Landlord & T. 2nd ed. 653; *People*v. Kelsey, 14 Abb. Pr. 378). Such final order, which was in effect a judgment, may be satisfied by compliance with its requirements on the part of the tenant, as well as by the issuing of a warrant, and cancels the agreement between the parties. Section 2253 of the Code should not be restricted in its application. The lease may be cancelled by the agreement of the parties or by surrender of the premises when required to do so by order of the court.

I think it a fair interpretation of the statute that when it becomes necessary to issue a warrant for the removal of a tenant, then the issuance of such warrant cancels the agreement. If while the warrant was unexecuted the tenant had remained in possession, a; different state of facts would have been presented *(Powers*v. *Carpenter,*15 Weekly Dig. 155; *Dean*v. *Ritch,*13 Daly 62).

As the defendant surrendered the premises under the final order, the landlord thus secured the precise remedy whicli he sought when he procured and served the precept. In such a case, the issuance of a warrant was unnecessary and useless, *229for the plaintiff had obtained all that he sought in the summary proceedings. It appears that the tenant has already left. The landlord was entitled to full possession of his premises. To issue a warrant in such a case, as before stated, would be useless and a nullity, inasmuch as it would be the enforcement of an order which had already been complied with.

The judgment of the court below should be affirmed, with costs.

Bookstaveb, J., concurred.

Judgment affirmed, with costs.