#### Alfred P. Hinton, Clara Hinton Gould, Susan McVickar Hemenway and George Johnston Bradish as General Guardian of Helen Bradish, an Infant, Appellants, *v.*George E. Bogart, Respondent.

(Supreme Court, Appellate Term, First Department,

October, 1912.)

Landlord and tenant — summary proceedings — tenant’s liability for taxes — pleading.

Where a tenant agreed to pay the taxes as part of his rent, and upon the death of his landlord, the life tenant of the premises, the relation of landlord and tenant was continued by the remaindermen who, after giving the tenant notice of their .willingness that he should continue to occupy the premises on the same terms and until further notice, obtained a final order in summary proceedings after service of a statutory notice to quit, but no warrant of removal was issued, and the tenant continued to hold over and occupy the premises paying the rent reserved, his liability for the taxes still continued; and an interlocutory judgment sustaining a demurrer to the complaint in an action to recover said taxes will be reversed and the demurrer overruled.

Appeal by the plaintiffs from an interlocutory judgment of the City Court of the city of Hew York sustaining a demurrer interposed by the defendant to the complaint.

*47Everett, Clarke & Benedict (Herman S. Hartwig and Dodge L. Marks, of counsel), for appellants.

Ferriss & Storck (H. C. Storck, of counsel), for respondent.

Guy, J.

Plaintiff, as landlord, sues to recover taxes which the defendant, as tenant, agreed to pay as part of Ms rent. The complaint alleges a letting to defendant on November 1, 1901, by a life tenant who died on July 30, 1906 ; that tenant agreed to pay the taxes as a part of the rent; that plaintiffs are the remaindermen; that defendant occupied the premises ever since the life tenant’s death and until April, 1912; that on August 24, 1906, the plaintiffs, as remaindermen, notified defendant of life tenant’s death and the termination of the lease, and of their willingness that he should continue to occupy the premises on the same terms and until further notice; that in March, 1910, the remaindermen served upon the defendant a statutory notice to quit; that on June 21, 1910, the plaintiffs recovered a final order in summary proceedings dispossessing defendant and awarding them possession of the demised premises, which was affirmed by this court in December, 1910, but under which no warrant to remove the defendant was issued; that defendant continued to hold over and occupy the demised premises and paid the rent for 1911 and part of 1912, but refused to pay the taxes for 1911.

Upon the death of the life tenant, her lease to the defendant terminated at the option of the remaindermen. They had, however, the right to continue it, which they exercised. Barson v. Mulligan, 198 N. Y. 24, 25, 28, 29. The remaindermen had the right to and did waive the forfeiture of the lease by receiving the rent due at the time they had a right to the issuance of the dispossess warrant, and additional rent for nearly two years thereafter. Seigel v. Neary, 38 Misc. Rep. 298, 301, 302; Voorhies v. Cummings, 42 App. Div. 260.

The relation of landlord and tenant existing between the parties prior to May 1, 1910, had never been interrupted, *48and the liability of the defendant under the agreement then subsisting still continues.

The judgment is reversed and demurrer overruled with costs, with leave to defendant- to withdraw the demurrer and to answer within six days upon payment of costs in this court' and in the court below.

.Seabury, and B-ijur, JJ., concur.

Judgment reversed.