#### Martin Goerl, Respondent, *v.*Israel Damrauer et al., Appellants.

(Supreme Court, Appellate Term,

May, 1899.)

Landlord and tenant — Failure of landlord to give possession — Tenant need not accept a part of the demise.

Where premises, a part of which is in ■ the actual occupation of a monthly tenant, are demised to third persons by the landlord, and the latter fails to oust his monthly tenant until some five weeks after the new term begins, the 'conventional relation of landlord and tenant has never existed between the landlord and the new lessees and he cannot recover of them rent, nor compel them to accept that part of the premises which was not occupied by the monthly tenant.

Aureal from a final order in summary proceedings made in the Municipal Court of the city of Hew York, borough of Manhattan, first district.

Christian G. Moritz, for appellants.

Louis Levy, for respondent.

*556Leventritt, J.

On the 25th day of August, 1898, the respondent leased to the appellants in writing the store floor and basement of the premises Ho. 189 Spring street, for the term of .three years from the 1st day of September, 1898, at the yearly rent of $504, payable in equal monthly installments in advance. The lease contained the usual covenants-

At the time of its- execution one Jacob Shivitz was in possession of the store as a monthly tenant. Dispossess proceedings were begun against him by the respondent, as landlord, in the month of September, 1897, but the requisite statutory notice not haying been given (Laws 1889, cha.p. 357), the' proceedings were necessarily withdrawn and Shivitz remained in possession throughout' that month. Upon his failure to oust Shivitz the respond-' ent offered to return to the appellants the rent they had advanced for that month. A proper notice of election to terminate the tenancy having been duly served on Shivitz' requiring him to remove on the 1st day of October, and he having disregarded that notice, summary proceedings were again instituted and resulted1 on the 7th of that month in an order awarding possession of the premises to the landlord. Thereupon, the respondent requested the appellants to take possession of the store and basqment. This they refused to do. Thereafter, and on the 2d day of Uovember, although the appellants had never occupied the premises, the respondent, brought these proceedings to - dispossess for nonpaymen of rent for the month of Uovember and obtained a final order," from which this appeal is taken.

This order cannot be upheld as it presupposes the conventional relation of landlord and tenant "which did not exist. Benjamin v. Benjamin, 5 N. Y. 383. While it was not incumbent on the lessor to place the lessees in actual possession (Mechanics *&*Traders’ Fire Ins. Co. v. Scott, 2 Hill. 551) it was necessary for him to give the lessees the legal right of entry and enjoyment during the term, else there would be a breach of the covenants of title and quiet enjoyment. Gardner v. Keteltas, 3 Hill, 330. By his lease the landlord obligated himself to give legal possession on the 1st day of September. His own acts, or rather- his omission to act, in that he failed to give the statutory notice to Shivitz,..defeated his right of entry and he could not confer -on his lessees a right which he hitm self did not enjoy; and having violated his contract, the lessees were relieved of all liability under the lease, and never became fhe tenants of the respondent.

*557If the tenancy of Shivitz had been terminated at the túne the lease, by its terms, became operative, and Shivitz would have held over, then the case of Gardner v. Keteltas, supra, invoked by the respondent, would apply, for his term having expired, his continued occupancy would have been that of a stranger and the appellants' remedy would have been against him and not against the lessor. But in the case at bar the tenancy of Shivitz had not expired; he and he alone was rightfully in possession during the month of September, and it was only between him and the respondent that the conventional relation of landlord and tenant existed..

When, in October, the respondent was finally able to give legal possession of the premises, the appellants were not bound to accept it, as time was of the essence of their contract. Nor did the fact that legal right of entry to a part of the demised premises make them tenants *pro tanto.*They were not bound to accept a part; under the lease they were entitled to the whole subject of the demise. Kelsey v. Ward, 38 N. Y. 83; O’Brien v. Smith, 13 N. Y. Supp. 408.

The order must be reversed.

Freedman, P. J., and MacLean, J., concur..

Order reversed, with costs to the appellants.