¶1In the absence of a judicial determination that the prime lease was terminated, or absent proof that the sub-lessor had abandoned the premises, it was improper to dismiss the sublessor’s nonpayment proceedings against the subtenants. (Bruder v. Geisler, 47 Misc. 370 [App. Term]; Bone v. Coppola, 45 Misc. 636; 34 N. Y. Jur., Landlord and Tenant, § 269.)
¶2Upon a new trial there should be a fuller development of the proof with respect to the affirmative defense of cancellation. In this connection, the subtenants may be well advised to implead the prime landlord as a third-party defendant.
¶3The judgment should be unanimously reversed, without costs, and a new trial ordered.
¶4Groat, P. J., Schwartzwald and Margbtt, JJ., concur.
¶5Judgment reversed, etc.