Dorb v. Waybright ( 1910 )

' BIJUR, J.

The rent of the premises in question was payable monthly in advance on the 15th. On the 13th of September, the August rent not having been paid, a precept was issued, directed to the defendant, returnable September 16th, and on September 16th the warrant. to remove was signed by the justice on the defendant’s default. During the afternoon of the 16th, the defendant moved out all his property voluntarily, and the court below gave judgment in this action for two months’ rent payable in advance on August 15th and September 15th.

This case is similar to Riglander v. Nile Tobacco Works, 21 Misc. Rep. 339, 47 N. Y. Supp. 188, in which section 2253 of the Code of Civil Procedure was construed to mean that rent accruing after the issuance of a precept and up to the issuance of the warrant is payable only on the basis of the reasonable value of the use and occupation of the premises. Rainier Co. v. Smith (Appellate Term, December, 1909) 120 N. Y. Supp. 993. The rent in this case was $33 per month. While this did not conclude either party as to the reasonable value, it furnished some evidence thereof. There was no other proof on the subject.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event, unless within 10 days the plaintiff stipulates to reduce the amount of his recovery to $44.96, in which case the judgment, as modified, will be affirmed, with costs to the appellant. All concur.