The defendant was tenant of premises under a lease, the term of which ended on May first, rent payable on the first of each month in advance. She left the premises on January twenty-eighth and sent the key to the landlord by a messenger whom the plaintiff instructed to tell the defendant that he declined to accept the surrender, but would take the key in order to show the premises to any intending tenants. There was evidence as to the condition of the premises, from which the court might have held that the defendant was justified in abandoning them. On the other hand, the court •could have found that the abandonment was unjustifiable, and the burden in this respect was on the defendant to show justification. The judgment is upon the theory that there was no justification for the surrender of possession.
The lease contained a covenant that if the premises became vacant during the term the landlord might re-enter and relet them, as the agent of the tenant, receiving the rent and applying any rent received to the expense of re-entering and then to the payment of rent due, the tenant remaining liable for any deficiency. The premises remained unoccupied and the landlord exercised no act incónsistent with his right, under the covenant of the lease, to take possession of the premises when they became vacant by the defendant’s leaving them. On March second he began some repairs of painting, papering and plumbing. This was because in the last week of February he made an arrangement to lease the premises to a new *204-tenant, Mr. Patterson, for a term beginning May first,, under which the latter entered upon the premises on April thirteenth, occupying them free of rent until May first.
By the judgment the court has found that there was no agreement on the part of the landlord accepting the surrender of the premises. The question, therefore, is whether any subsequent acts on his part are to militate against his right to recover rent..- The rent being payable in advance on the first day of the month, the defendant was bound to pay the February rent and also the March rent prior to March second, on which day the landlord began making repairs. (MacKellar v. Sigler, 47 How, Pr. 20.)
The plaintiff, however, cannot have judgment for the rent after. April thirteenth, when Mr. Patterson wont into possession. Evidently it was an inducement to or a condition of the lease to Mr. Patterson that he should have the right to occupy the premises from April thirteenth to May first free of" rent, but the plaintiff had the benefit of this possession. a;.d exercised dominion over the premises during that period. .
The' judgment must be modified by deducting seventeen-thirtieths of a month’s rent, and, as modified, affirmed, without costs of this appeal to either party.
All concurred.
Judgment of the Municipal Court modified in accordance with-opinion of Goodrich, P. J., and, as modified;, affirmed, without costs.