delivered the opinion of the Court:

Variance is claimed in that plaintiff averred that defendant held under a monthly tenancy, while it is conceded that he was a tenant by sufferance as defined in our Code. This variance is immaterial; since, in either instance, the tenancy may be terminated by thirty days’ notice to quit, as was given in this case. '

It is urged that the acceptance of the tender of the amount due’ on the date of the hearing in the municipal court abated plaintiff’s right of action. This was not the receipt of rent after notice to quit or rent for a new term. It was for rent already in arrears, and merely obviated the^ necessity of entering judgment for that amount. It in no way affected plaintiff’s right to judgment for possession. Byrne v. Morrison, 25 App. D. C. 72.

Error is assigned in holding that the payment and acceptance of rent in advance for December, 1917, and January, 1918, did not terminate plaintiff’s right to proceed with the suit. “The receipt of rent by a landlord, after notice to quit, of rent for a new term or part thereof, amounts to a waiver of his right to demand possession under the notice.” Byrne v. Morrison, supra. The judgment in this case was awarded on plaintiff’s affidavit, but its legality rests upon the averments *419of the affidavit of defense, the truth of which must he admitted. Contrary to the judgment, defendant’s affidavit discloses the payment and acceptance of the rent for the months of December and January. In this respect, the judgment is not supported hy the record. In our opinion, the error is fatal, since the payment of the rent for the months in question, as averred in the affidavit of defense, and which, in the state of the record, must bo accepted as true, amounted to a waiver of the right of plaintiff to demand possession under the original notice.

The judgment is reversed, with costs, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded„