¶1The question presented by this appeal is whether a landlord may institute and maintain summary proceedings for the removal of a tenant on the ground that the tenant is holding over after the expiration of his term, where the landlord has, prior to the expiration of such term, duly executed a lease of the premises for another term commencing at the expiration of the then fixed term of the first tenant, and, therefore, in -full force and effect at the time such summary proceedings are instituted. The Court of Appeals has recently decided that in such circumstances the second tenant has the right as landlord to hold the first tenant for another term, the same as the landlord from whom the premises were leased would have had a right, had he not parted with his right to possession by executing a new lease, to hold the tenant to a.renewal of the term for holding over. (United Merchant's Realty & Improvement Co. v. Roth, 193 N. Y. 570.) I am of opinion that it necessarily follows from that decision that the original landlord éannot successfully maintain a summary proceeding. Being subject to an election on the part of the second tenant to hold him for a renewal of the term which may have been made at once and without notice as soon as he remained in possession for any appreciable time after the expiration of his original term, and to payment of the rent during such period of renewal, it cannot be that he is at the same time subject to be dispossessed in a proceeding instituted’by his former landlord, who has . parted with right to the possession of the premises until the expira*598tion of the second léase. Since, as' has been decided by the Court of Appeals in the case cited, a landlord is under no obligation to give possession of the demised premises té his ■ tenant, or, in other words, to put his tenant in possession — of course, he would be if ah' express agreement to that effect were exacted — and only becomes liable to the tenant in case the premises are occupied by some one who liad a legal right to remain, and, therefore, ■ could not he removed by the tenant, there is no reason or necessity for allowing the former landlord to institute the proceeding; and since the new tenant has a right to institute it, or may elect to hold the first tenant for a renewal of the term- on account of holding-over, I see no propriety in so construing-the statute as to. confer the right on the ■ .'original landlord to institute the proceeding, and I think that it is, essential to the protection of the first tenant in such circumstances against conflicting claims on the part of his landlord and the lessee of his landlord that the remedy for obtaining possession should be left with the latter, who only lias the right to insist upon the remedy, or to leave the first tenant in possession, on the theory of a renewal of the term by holding over or on a new agreement.
¶2The second lease was excluded- and, therefore, there is no evidence or claim even that it gave no right to the 'tenarit to sublet the premises. and we are not concerned with that_ question. •
¶3McLaughlin, J., concurred.
¶4Determination affirmed, with costs, /