#### The Fifth Avenue Investment and Improvement Co., Respondent, *v.*The Bounsignore Realty Co., Appellant.

(Supreme Court, Appellate Term,

March, 1912.)

Landlord and tenant — Re-entry and recovery of possession by landlord — Summary proceedings — Default in the payment of rent.

. A tenant in summary proceedings can only stay the execution of a final order awarding possession of the premises to the landlord, upon payment of the rent due and the costs of the proceeding.

The relation of landlord and tenant ceases upon the tenant’s vacating the premises under a final order requiring him to deliver possession to the landlord.

Where a tenant has been dispossessed for nonpayment of rent an action on his covenant to pay the landlord the difference between the rent ahd sums otherwise received during the remainder of the term of the lease, at the landlord’s re-entry, is not maintainable.

Appeal by the defendant from a judgment of the Municipal Court of the city of Few York, borough of Manhattan, ninth district.

Reeves & Todd, for appellant.

George Hahn, for respondent.

Guy, J.

The defendant appeals from a judgment, entered by direction of the court, in favor of plaintiff in an action for rent.

The defendant was in possession of the premises under a two-year written lease. On October 11, 1911, the plaintiff began dispossess proceedings against defendant, and a final order was entered October 30,-1911. Defendant on that day asked for an adjournment to enable him, according to his testimony, to move. Defendant’s witness testified that an adjournment was asked for to enable defendant to “ pay or move.” An adjournment was then granted until October thirty-first and no warrant was issued. On October thirty-*652first defendant paid the plaintiff the amount of the October rent, but did not pay the costs. Defendant testified that he endeavored to move on October thirty-first, immediately after five p. m., but was prevented from doing so by plaintiff’s employees. The lease provided that the defendant should not move between the hours of nine a. m. and five p. m. Section 2254 of the Code provides as follows: “ The party, against whom a final order is made, requiring the delivery of possession to the petitioner, may, at any time before a warrant is issued, stay the issuing thereof; and also stay an execution to collect the costs as follows: * * * by payment of the rent due * * * and the costs of the special proceeding.”

The defendant herein did not pay the costs of the special proceeding, but only paid the October rent, which was admittedly due. Bot having paid the costs as required by section 2254 of the Code, the payment of the rent did not stay the issuance of the warrant or terminate the proceeding. The vacating of the premises by the defendant under a final order requiring the delivery of possession to the plaintiff operated to terminate the relationship of landlord and tenant between the parties. Riglander v. Nile Tobacco Works, 21 Misc. Rep. 339; Rainier Co. v. Smith, 65 id. 560; Dorb v. Waybright, 121 N. Y. Supp. 584.

“ Where, after the issue of the precept and the making of a final order, but before the issue of the warrant, the tenant voluntarily vacates, the landlord is not entitled to recover rent accruing subsequent to the day when the tenant left, and this, notwithstanding the fact that the lease provides that the rent shall be payable monthly in advance.” Biglander v. Bile Tobacco Works, *supra.*

Plaintiff also claims the right to recover under the following clause of the lease: *“Ninth.*It is further agreed that, in case the said demised premises shall be deserted or vacated * * * either before or after the commencement of the term, or 'if default shall be made in the payment of the rent, or aqy part thereof, at the time specified herein, * * * this lease shall (if the landlord so elect) become null and void thereupon, and the landlord shall have the right to re*653enter or re-possess the said premises, either by force, summary proceedings, surrender or otherwise, * * * and, in such case, the landlord may, at his option, re-let the premises, or any part thereof, as the agent of the tenant, and *the tenant agrees to pay the landlord the difference as ascertained from time to tirn.e, between the rents and sums hereby reserved and agreed to be paid by the tenant and those otherwise received, on account of rents of the demised premises, during the residue of the term remaining at the time of the re-entry or re-possession*

This is a covenant which would survive the cancellation of the lease and might form the basis of an action for damages for breach of the covenant; but under this clause of the lease the plaintiff is not entitled to maintain an action for rent, the relation of landlord and tenant having been terminated by the dispossession of the tenant at the' instance of the landlord.

The judgment should, therefore, be reversed and the complaint dismissed, with costs.

Seabury and Bijur, JJ., concur.

Judgment reversed and complaint dismissed, with costs.