Fleishauer v. Bell

44 Misc. 240, 88 N.Y.S. 922

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1904
• Status: Published

Opinion

MacLean, J.

The final order herein, in summary proceedings for nonpayment of rent, was proper, for at the time the proceedings were instituted there was at least a balance due and unpaid. The contention, that summary proceedings for nonpayment of rent may not be maintained by a landlord when the lease provides fop re-entry, is without basis in law, for the case of McMahon v. Howe, 40 Misc. Rep. 546, so holding, has incorrectly interpreted the Court of Appeals, in Michaels v. Fishel, 169 N. Y. 381, wherein it was determined merely that ejectment is the proper action for re-entry, when the lease provides for re-entry and reletting, if possession and right to a deficiency from reletting on account are sought, but if possession is acquired by means of summary proceedings, the lease, and so the relation of landlord and tenant, is terminated and the right to relet on account is lost. The final order must be affirmed.

Freedman, P. J., and Scott, J., concur.

Final order affirmed, with costs.