Opinion
February, 1917.
Joseph V. Rooney, for appellant.
Nathan Finkelstein (Henry Pearlman, of counsel), for respondent.
The defendant had been the plaintiff's tenant for some years under successive monthly hirings. The rent was twenty-two dollars a month, payable in advance on the fifth day of each month. On August fifteenth the defendant vacated. Although no papers in, or other proofs concerning, the summary proceeding were offered in evidence, it appears from the record, and it is conceded upon the briefs, that a precept for dispossession was served upon the defendant sometime after August fifth and before he vacated on August fifteenth, and that the vacation made the issuance of a warrant unnecessary. The action is for the rent from August fifth to September fifth, and the learned trial justice gave judgment for the plaintiff for eight dollars, being the twenty-two dollars sued for less a set-off of fourteen dollars representing the rental value of the demised premises from August fifteenth to September fifth, it developing upon the trial that immediately after the vacation the plaintiff resumed possession by exercising dominion over the demised apartment. We think the court erred in allowing the set-off. As the rent for the month was payable in advance, there can be no offset because of the tenant's inability to occupy the premises during the full period for the rent of which he has become chargeable. Code Civ. Pro. § 2253; Berg v. Kaiser, 137 A.D. 1; Folger v. Raczek, 167 id. 167. The rule is not otherwise for the mere reason that a warrant was not issued; it is sufficient if the tenant vacate after and because of the commencement of the dispossess proceeding. Hoffert v. Dutton, 74 Misc. 435; Fifth Ave. Inv. Imp. Co. v. Bounsignore R. Co., 75 Misc. 651.
Judgment modified by increasing the amount of the recovery to the sum of twenty-two dollars with interest from the 5th day of August, 1916, and appropriate costs in the court below, and, as so modified, affirmed, with fifteen dollars costs to appellant.
GUY, J., concurs. BIJUR, J., concurs in result.
Judgment modified, and, as so modified, affirmed, with costs.