#### Alfred P. Hinton et al., Plaintiffs, *v.*George E. Bogart, Defendant.*

(City Court of City of New York, Special Term,

December, 1912.)

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 *587him, 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 remainder-men it was held that the relation of landlord and tenant was revived and continued by the payment and acceptance of rent, it is no defense to the action to recover taxes that after the order in summary proceedings was obtained defendant tendered the rent and it was accepted by plaintiffs “without prejudice; ” and a motion by plaintiffs for judgment on the pleadings will be granted.

Motion for judgment on the pleadings.

Everett, Clarke & Benedict, for plaintiffs.

Ferriss & Storck for defendant.

*

See 78 Misc. Rep. 46.— Repr.

Green, J.

This is a motion for judgment on the pleadings made by the plaintiffs. The action is to recover for taxes paid by the plaintiffs on premises occupied by defendant and originally leased to the defendant by a life tenant, and by the terms of the lease required to be paid by the "tenant. The life tenant died and hy due process of law the remaindermen gave notice to terminate the tenancy, and the tenant not removing from the premises summary proceedings were duly taken and an order duly made dispossessing the defendant, but the warrant was never formally executed. Defendant continued to occupy the premises after the order for the dispossession had been issued for a number of years, and paid both the rent and the taxes as they accrued and became due. Hpon a demurrer to the complaint herein interposed previous to this motion it was held upon appeal to the Appellate Term of the court that the relation of landlord and tenant was revived and continued by the payment and acceptance of the rent. Defendant now contends in his answer to this cause of action that he is not liable for the taxes, which are the subject of this suit, but only for the use and occupation of the premises, and alleges that after the order in summary proceedings was obtained he tendered the rent and it was accepted by the parties plaintiff “ without prejudice.” It is upon this last phrase, *“*without preju*588dice,” that defendant resists this action for the recovery of the taxes. • From all the facts alleged in the complaint and the answer I am of the opinion that the phrase “ without prejudice ” has an unmistakable and definite meaning in view of their undisputed transactions and their manner of conduct subsequent to the order for the dispossession. The final order created distinct rights between these parties, and the receipt and payment of the rent “ without prejudice ” gave the plaintiffs the right to issue a warrant of dispossession, and it gave the tenant the right to voluntarily quit the premises at any time he pleased, and this is clearly apparent from the pleadings. There are no facts set forth in the defense interposed to warrant any other conclusion in my opinion. The parties continued under the terms of the original lease, and by no reasoning can it be spelled out of the answer that defendant was to be released from the payment of taxes by use of the words *“*without prejudice ” in the payment or acceptance of the rent. I am, therefore, of the opinion that this motion for judgment on the pleadings should prevail, and the same is granted, with ten dollars costs.

Motion granted, with ten dollars costs.