Opinion
October 6, 1937.
Present — Sears, P.J., Edgcomb, Crosby, Lewis and Cunningham, JJ.
Order denying defendant's motion to dismiss plaintiffs' complaint reversed on the law, with ten dollars costs and disbursements, and motion granted. Appeal from order denying plaintiffs' motion for summary judgment dismissed as academic. Memorandum: The lease was terminated, and the relation of landlord and tenant ceased when defendant was ejected from the premises by summary proceedings. (Civ. Prac. Act, § 1434.) The lessee defendant still remained liable to the lessor plaintiff, but the liability was for damages, not for rent ( Hermitage Co. v. Lavine, 248 N.Y. 333), and the action was prematurely brought. ( Lenco, Inc., v. Hirschfeld, 247 N.Y. 44.) The case of Kottler v. N.Y. Bargain House, Inc. ( 242 N.Y. 29) is not in point, because in that case there was no eviction. The case of McCready v. Lindenborn ( 172 N.Y. 400) is not in point because, though there the action was for damages and not for rent, the lease clearly provided that damages should be ascertained and collected from month to month. Plaintiff in this case must wait until the end of the leasing period before suing for damages. All concur. (One order denies plaintiffs' motion for summary judgment; the other order denies defendant's motion to dismiss the complaint, in an action to recover rentals due.)