Misc.] Appellate Term, First Department, April, 1921. apartment, he might thereafter be entirely unable to obtain such an apartment or unable to obtain it except at a prohibitive rate, agreed to pay a rent which, though higher than is necessary to afford the landlord a fair return on his investment, and higher than the landlord could obtain under normal conditions, is probably no higher than the landlord might have obtained from other persons at that time and certainly no higher than the defendant was willing to pay as long as the general fear continued in order to secure the advantage obtained from the contract. The legislature has exercised its power to relieve generally tenants in possession from the fear that they might not be able to continue in possession, unless they agreed to pay the rent demanded, by conferring upon them a right of continued possession upon terms it deemed proper, regardless of the desire of the landlord, but though a court of equity has power to adjust its remedies to meet new conditions when a wrong has been committed, its power is based upon the existence of a wrong which requires a remedy and it cannot relieve a party against the obligation of a contract, lawful when made, when such party entered into the contract knowingly and desired to retain the benefit derived from such contract until the legislature more than six months thereafter, in the exercise of its police power, conferred upon tenants in general a right to continue in possession upon terms more favorable than those which the landlord had a legal right to exact for his promise to give the tenant a right of continued possession. The only possible claim of compulsion on the part of the tenant was the fear that competitive conditions which might exist on October first would render it impossible for him to obtain a right of possession of a suitable apartment on that date; the purpose and the effect of the agreement was to give the tenant Appellate Term, First Department, April, 1921. [Vol. 115. security of possession after October first. He sought, and for six months retained, an advantage over other tenants, actual or prospective, who had not made such an agreement and who therefore, on October first, might be competitors for the right to occupy apartments vacant on that date, and in its final analysis, the defendant's claim for relief is based upon the proposition that in spite of the fact that he was willing to enter into this contract in order to relieve himself from the fear that competitive conditions existing on October first would place him in a more unfavorable position and compel him to pay a larger consideration for an apartment if he had not secured one before that date, yet he should not be held to his obligation because the legislature four days before October first enacted statutes which protected other tenants against the effect of competitive conditions to which they would otherwise have been subjected. Judgment should, therefore, be reversed, with thirty dollars costs and judgment directed for the plaintiff for the amount demanded in the complaint. MULLAN and BURR, JJ., concur. Judgment reversed, with thirty dollars costs. MARBRIDGE BUILDING CO., INC., Respondent, v. JOSEPH A. WHITE, Appellant. (Supreme Court, Appellate Term, First Department, February Term - Filed April, 1921.) Landlord and tenant summary proceedings damages Code Civ. Pro. § 2253. - tenant holding over The tenant under a lease to begin upon the expiration of the term of a prior lease cannot maintain summary proceedings against the tenant in possession. Misc.] Appellate Term, First Department, April, 1921. In such circumstances, the landlord may maintain summary proceedings against the tenant holding over, and where he has secured a final order awarding him possession of the premises, the issuance of the warrant of removal does not prevent him from subsequently recovering by action under section 2253 of the Code of Civil Procedure the reasonable value of the use and occupation thereof, to the time when the warrant was issued. The landlord's right of action for damages for breach of the tenant's covenant to surrender the premises at the expication of the term, survives a summary proceeding for his removal, and where the lease with the second tenant specifically provides that the rent shall not be paid until possession is given, the plaintiff in the action is entitled to recover of the defendant, as for use and occupation, the rent called for by the second lease, while plaintiff was kept out of possession, but the counsel fee and expenses of the summary proceeding are not proper elements of damage in said action. Mullan, J., dissenting. APPEAL by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of plaintiff, after trial by the court without a jury. Louis Dorfman (I. Balch Louis, of counsel), for appellant. Stein & Salant (Joseph J. Cunningham, of counsel), for respondent. LEHMAN, J. I agree with Mr. Justice Mullan that under the authority of Livingston v. Robb, 61 Misc. Rep. 81, the counsel fee and other expenses incurred in procuring defendant's removal are not proper elements of damage in an action for breach of the defendant's covenant to surrender the demised premises at the expiration of defendant's term but in my opinion the plaintiff is entitled to recover the value of the use and occupation of the premises. Appellate Term, First Department, April, 1921. [Vol. 115. The case of United Merchants Realty & Improvement Co. v. Roth, 193 N. Y. 570, established the rule that" a new lessee, whose lease begins at the termination of a prior lease, can at his option, treat the prior lessee in case he holds over, as his tenant under the terms of the original lease." In the subsequent case of Eells v. Morse, 208 N. Y. 103, the court however decided that a landlord can maintain summary proceedings to remove a tenant holding over after the expiration of the term, although he has made a new lease of the premises to begin upon the expiration of the term of the tenant in possession, and that the tenant under the new lease cannot maintain such proceedings. (Cases cited.) The landlord has the remedy under such circumstances, because he has the right of possession as against the tenant holding over (Whiting v. Edmunds, 94 N. Y. 309), and the tenant cannot be heard to say otherwise. The second tenant does not have the remedy against the prior tenant because it is given only in cases where the conventional relation of landlord and tenant exists between the parties (Benjamin v. Benjamin, 5 N. Y. 383; People ex rel. Mitchell v. Simpson, 28 N. Y. 55) and such relation does not exist between the two tenants." In accordance with the rule laid down in that case the plaintiff has secured a final order against the prior tenant awarding to him possession of the premises. The issuing of the warrant for the removal of the tenant from the demised premises under the final order "does not prevent the landlord from recovering by action the reasonable value of the use and occupation thereof to the time when the warrant was issued" (Code Civ. Pro. § 2253) and the right of action for damages caused by the breach of the prior tenant's covenant to surrender the premises at the expiration of his term survived the summary pro * * ** Misc.] Appellate Term, First Department, April, 1921. ceedings. See Livingston v. Robb, 61 Misc. Rep. 81; Vernon v. Brown, 40 App. Div. 204; Phelan v. Kennedy, 185 id. 749. The final order in the summary proceedings hitherto brought by the plaintiff constitutes an adjudication that as between this plaintiff and this defendant the plaintiff was entitled to the possession of the demised premisc3 and even without such adjudication, it is well established" that the tenant cannot be heard to say otherwise." Eells v. Morse, supra. The plaintiff in this case having the right of possession as against the defendant holding over under his lease, must legally be entitled to recover for the use and occupation while he was kept out of such possession and since he was undoubtedly damaged in the amount of the rental which the second tenant was, under the terms of his lease, not required to pay to the plaintiff until possession of the premises was given to the second tenant, the plaintiff herein has the right to recover the amount of these damages against this defendant. Phelan v. Kennedy, supra. On the other hand since the relation of landlord and tenant does not exist between the two tenants, it is evident that the second tenant cannot recover against the prior tenant for use and occupation and has not been damaged by the tenant's failure to surrender possession of the premises without summary proceedings, for by the terms of his lease he specifically provided that rent under his lease "shall not begin until possession of the space is given or available." The Court of Appeals in the case of Eells v. Morse, supra, has pointed out that its prior decision in the case of United Merchants Realty & Improvement Co. v. Roth, supra, is not in conflict with the rules of law which I have cited above and which, in my opinion, |