Luez v. Alexander 116 N.Y.S. 1140

GILDERSLEEVE, P. J.

I think that the agreement between the parties herein, so far as it relates to the furniture, is an agreement of sale and purchase, and cannot form any part of the amount due from the defendant as rent. I am of the opinion, however, that the agreement, taken in connection with the practical construction placed upon it by the acts of the parties, establishes the conventional relation of landlord and tenant, to the extent of enabling the plaintiff to maintain summary proceedings for the recovery of the possession of the premises described in the petition, and that the amount of rent due, based upon that fixed by the terms of the agreement, viz. $809 per month, being undisputed, there is due from the defendant the sum of $533.37 for the month of November, $809 for the month of December, and the same amount for the month of January, aggregating the sum of $2,151.37; that being the amount for which the defendant is liable. The final order should therefore be modified, by providing that the amount of rent found due is the sum of $2,151.37, and, as so modified, affirmed, without costs of this appeal. All concur.