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

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Summary proceedings — lease — landlord and tenant — pleading — motion for judgment on the pleadings — action to recover taxes.

Where, upon the death of a life tenant, the remaindermen gave notice of the termination of a lease he had made, but the tenant, after an order had been made in summary proceedings to dispossess him, continued for years to occupy the premises, paying the rent and taxes as required by the lease, and, on the reversal of an interlocutory judgment sustaining a demurrer to the complaint in an action against the tenant to recover taxes paid by the remaindermen, it was held that the relation of landlord and tenant was revived and continued by the payment and acceptance of the rent, it is a defense to an action to recover taxes that after the order in summary proceedings was obtained defendant tendered the rent and it was accepted by plaintiff “ without prejudice ” to whatever rights defendant had under the final order in summary proceedings; and plaintiff’s motion for judgment on the pleadings should have been denied.

Appeal by the defendant from a judgment of the City Court of the city of Hew York entered pursuant to an order granting plaintiffs’ motion for judgment on the pleadings.

Ferriss & Storck (Stark B. Ferriss and H. C. Storck, of counsel), for appellant.

Everett, Clarke & Benedict (Herman S. Hertwig, of counsel), for respondents.

Gerard, J.

This action was brought by plaintiffs, owners of certain premises in the city of Hew York, to recover from the defendant the amount of taxes levied against the premises for the year 1911.

*419Defendant took possession of the premises Hovember 1, 1901, under a written lease for a term of ten years with a right of renewal for ten years.

By the terms of this lease the defendant undertook to pay an annual rental of $1,800 and also to pay all taxes and assessments levied against the premises. The lease was executed by Sarah Hinton, who, at the time, had a life estate only in the premises.- On July 30, 1906, this lessor, Sarah Hinton, died, and the remainder in the property vested in the plaintiffs.

The complaint alleges that since the death of the said Sarah Hinton the defendant has continued to occnnv the premises and -is now in possession thereof and has paid rent to the plaintiffs since that time and in the amount of the sums provided for in the lease and has also paid the taxes and assessments levied for the years 1907, 1908, 1909 and 1910.

The plaintiffs also allege! that a notice to quit was served on the defendant to quit the premises on or before Hay 1, 1910, and that on his failure to comply dispossess proceedings were commenced and a precept duly issued May 4, 1910, and a final order made on June 21, 1910, awarding possession of the premises to the *plaintiffs;*but that no warrant to remove the defendant has been issued on the said final order and that defendant has continued to occupy and hold the premises, continuing to pay rent, but that he has failed to pay the taxes for the year 1911.

The answer of the defendant denies that he continued to occupy the premises as tenant of the plaintiffs after May 1, 1910, and denies that he paid rent to the plaintiffs after May 1, 1911, except that he admits that he occupied the premises after that date and has paid for the use and occupancy of said premises thereunder without prejudice to his rights, as fixed by the final order entered in the dispossess proceedings, and denies that he paid the taxes for 1910 unconditionally; and alleges that they were paid without prejudice to the rights of the plaintiffs and of defendant as fixed by the final order, and alleges that he had paid sums of money for the use and occupancy of the said premises without prejudice to his rights as fixed by the final order, *420and set up in a separate defense that everything done by plaintiffs and defendant after May 1, 1910, was done under the express agreement in writing between plaintiffs and the defendant; that these things were done without prejudice to the rights of plaintiffs or defendant as fixed and determined by said order.

In Hinton v. Bogart, 78 Misc. Rep. 46, this court held upon an appeal, where a demurrer to the complaint in this action was interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action, that the payment of rent, as alleged in the complaint by the defendant and its acceptance by plaintiffs constituted a waiver of all rights under the dispossess proceedings and that the relationship existing between plaintiffs and defendant prior to May 1, 1910, had been re-established and with it the defendant’s obligation to pay taxes.

This decision, however, being based upon the complaint alone was based upon the inference that there was an unconditional payment of rent and acceptance of the same after May 1, 1910. How it is alleged in defendant’s answer that all acts and things done after May 1, 1910, were done under the express agreement in writing; that they were so done without prejudice to the rights of the plaintiffs and defendant as fixed and determined by the final order in the dispossess proceedings.

I think that the words *“*without prejudice ” have a distinct meaning in law and that they import into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not, because of the fact of the receipt or payment, have any legal effect upon the rights of the parties in the premises and that such rights will be as open to settlement by legal controversy as if the money had not been turned over by the one to the other. Genet v. Delaware & H. Canal Co., 170 N. Y. 278.

After the death of Sarah Hinton a life tenancy at will was created, because on or about August 24, 190'6, the landlord served a notice on the defendant of the death of Sarah Hinton and the termination of his lease and of their willing*421ness that he should continue to occupy the premises on the same terms until further notice; but in any event it seems to me that as the lease expired with the life of Sarah Hinton, July 30, 190'6, the notice served thereafter, followed by the dispossess proceedings and the final orders, limited the defendant’s term to May 1, 1910, and that if the defendant held over after that time he held over without any obligation to pay taxes under the lease executed by him and Sarah Hinton, and if defendant is under any obligation to pay any taxes accruing after May 1, 1910, when his term expired, it must grow out of some new agreement, either express or implied, which came into existence after May 1, 1910, and as the answer of defendant alleges that every act thereafter between plaintiffs and defendant was without prejudice to whatever rights he had under the order of May 1, 1910, I think that the motion for judgment on the pleadings should not have been granted and that the judgment and order appealed from should be reversed.

Seabury and Bijur, JJ., concur.

Judgment and order reversed with ten dollars costs and disbursements and motion denied with ten dollars costs.