Burke

Frank H. Burke was the original plaintiff in this action. After the action was commenced he died, and his wife, Mary A. Burke, as the executrix of his last will and testament, was substituted in his place and stead as plaintiff in the action.

In discussing this case, our references to the plaintiff will be understood as applying to the original plaintiff.

The action was brought for the recovery of the sum of one thousand two hundred and fifty dollars alleged to be due plaintiff from the defendant as rental under the terms of a written lease executed and dated January 3, 1908, whereby the defendant was granted the use and occupation of certain premises in the city and county of San Francisco for the term of five years at the total rental of seven thousand five hundred dollars, which it was stipulated in the lease was to be paid in monthly installments of one hundred and twenty-five dollars.

Pursuant to the lease the defendant, upon the day and date of its execution, entered into possession of the demised premises, and paid the rent therefor as it became due save and except for the period commencing with the first day of August, 1909, and ending with the first day of June, 1910.…