Opinion
January 17, 1978
Appeal from the City Court of Yonkers, JOHN D. D'APICE, J.
Singer Silverstein (Alan D. Singer of counsel), for appellant.
Rabinowe Rabinowe (Albert W. Rabinowe of counsel), for respondent.
MEMORANDUM.
Judgment and order of the court below (see 89 Misc.2d 234) unanimously reversed, without costs, and matter remanded to the court below for a trial in accordance with the opinion herein.
Where provided for in the lease, peaceable re-entry by landlord is permissible where the tenant has failed to pay the rent when due (see Fults v Munro, 202 N.Y. 34; Michaels v Fishel, 169 N.Y. 381; Cohen v Carpenter, 128 App. Div. 862; Ajax Wrecking Lbr. Co. v Baker, NYLJ, April 21, 1977, p 12, col 4; 2 Rasch, NY Landlord and Tenant 2d ed, § 734.) However, this being a common-law right, the landlord must first make a demand for the rent. (See Earl v Nalley, 273 App. Div. 451, 454-455.) In the instant matter, the record is unclear as to whether or not a demand for rent was made before landlord exercised its right of re-entry and whether or not landlord, by its actions, willfully deprived tenant of his personal effects entitling tenant to the damages incurred thereby (10 N.Y. Jur, Conversion, § 35; cf. Price v Hoyle, 82 Misc.2d 174). A new trial is necessary for further development of the facts.
Concur: FARLEY, P.J., GLICKMAN and GAGLIARDI, JJ.