(concurring). The plaintiff declared for rent and damages to property,'to which the defendant answered general denial and surrender. The trial justice rendered judgment in favor of the defendant, dismissing the complaint on its merits. It is undisputed, at least, that the defendant remained in possession of the leased premises after rent had become due and payable. His subsequent removal and re-entry by the plaintiff did not determine his liability in debt, though determine it might all relation between plaintiff and himself. Norton v. Vultee, Super. Ct. Rep. 384, 389. Liable he was for what had accrued as a debt, as was held a lessee for rent payable on the 1st day of September, a Sunday, where the premises were totally destroyed, by -fire at 6 o’clock in the morning of that day; the next being Labor Day, and notice of surrender being given the day following, pursuant to the statute in reference to the rights and liabilities of lessees of buildings destroyed by fire. Craig v. Butler, 83 Hun, 286, 31 N. Y. Supp. 963, and affirmed in 156 N. Y. 672, 50 N. E. 962.
The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the' event.