#### Henrietta Manning, Respondent, *v.*James Ferrier, Appellant.

(Supreme Court, Appellate Term,

May, 1899.)

landlord and tenant — Rent, payable on first day of month, not lost by dispossession during the month.

Where rent is payable on the first day of the month, the subsequent dispossession of the tenant during the month does not abate the landlord’s right to recover rent for the whole month. ,

'. . Appeal from a judgment in. favor of the plaintiff and against the defendant rendered in the ¡NinthDistrict Municipal Court, borotigh of Manhattan.

J. Baldwin Hands, for appellant.

James C. De Le Mare, for.respondent.

*523Freedman, P. J.

The complaint in this action avers, that the plaintiff on the 23d day of October, 1893, by a written lease, demised certain premises in the city of Few York to this defendant and one Thomas Dolan, at a yearly rental of $3,600, payable in equal monthly payments in ádvanee, upon the first of each and every month, which lease contained a right of renewal for three years upon the same conditions; that subsequently Dolan assigned his interest in said lease to this defendant; that defendant continued to occupy the premises until June 10, 1897, under the lease and its renewal, and that there became due and payable to the plaintiff from the defendant the sum of $3,00, on June 1, 1897.

The defendant admits that the rent was $300; that it was payable in advance; that it has not been paid, and that he occupied the premises up to June 10, 1897. He sets up as a defense that on June 5, 1897, the plaintiff, as landlord, began summary proceedings against him, as tenant, to remove him from the premises, which proceedings resulted in the issuance of a warrant thereunder, on June 10, 1897; that he was thereupon removed from the premises, and possession thereof taken by the plaintiff, who, thereafter, had the use and benefit of the same. For these reasons the defendant claims that the plaintiff cannot recover more than the 'amount of the rent from June 1st, up to June 10, 1897, although by- the terms of the lease the rent became due June 1, 1897. Upon the trial, it was conceded by the plaintiff that the warrant referred to was issued, that the tenant was dispossessed on June 10, 1897, and surrendered the premises. The trial was with a jury upon the 2d day of Fovember, 1898. At the close of the testimony, the plaintiff asked for the direction of a verdict in his favor for ibe sum of $300, which motion was granted against the objection of defendant. The defendant then made a motion for a new trial, and, as appears by the record, it was stipulated between the respective parties in open court, that such motion should be deter- , mined by the Court upon briefs, and that the time given to the court by statute in which to enter judgment, should be extended until such motion should be decided. Subsequently, the attorneys for the respective parties submitted their briefs, and the motion for a new trial was denied and judgment in favor of the plaintiff for the full amount claimed by him, was entered on the 17th day of February, 1899.

It is claimed by the appellant that the time given to the court was limited to ten days, in which to hand in briefs, and to twenty days thereafter, in which to render judgment.

*524It' is a sufficient answer to that, to say that the record fails to show that the time was limited,- '' On the contrary it appears affirmatively that unlimited time was given, and the appellant is bound thereby. . If he desired- to have an amended return, he: should have duly applied therefor.. • ■

The only remaining question relates to the right of the plaintiff, to' recover for one month’s rent upon the facts as conceded upon the tnal.. This question has been' decided; adversely to. the' defendant in many cases, among others, in McKeon v. Whitney, 3 Denio, 452-457; Giles v. Comstock, 4 N. Y. 270; Johnson v. Brag, 8 Misc. Rep. 307; Weston v. Ryley, 15 Misc, Rep. 638; Kahn v. Tobias, 16 Misc. Rep. 83.

The judgment must, therefore, be affirmed,

MacLean and'L-EVENTRiTT, JJ,, concur.

Judgment affirmed, with costs to respondent. ■