17 N.Y.S. 532 | New York Court of Common Pleas | 1892
The contention between the parties to this appeal is as to the legal effect of the facts appearing on the trial, which, were undisputed, and are, briefly stated, as follows: Plaintiff and defendants entered into a lease under their hands and seals, whereby plaintiff let and rented, and the defendants accepted, the premises 231 West Thirty-Eighth street, in the city of New York, for the term of three years, from October 1, 1890, to October 1, 1893, at the yearly rent or sum of $2,500, to be paid in equal monthly installments, in advance. Besides the payment of the rent and Croton water charges, and the surrender of the premises upon the expiration of the term in as good state and condition as reasonable use and wear thereof would permit, the defendants covenanted “that if the said premises, or any part thereof, shall become vacant during the said term, the said party of the first part, [plaintiff,] or her representative, may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor, and relet the said premises as the agent of the parties of the second part, [defendants,] and receive the rent thereof,-applying the same, first, to the payment of such expenses as she may be put to in re-entering, and then to the payment of rent due by these presents; and the balance, if any, to be paid over to the said parties of the second part, who shall remain liable for any deficiency;” and, further, “to pay to the party of the first part the sum of two hundred and eight dollars and thirty-three cents, on the fourth day of October, 1890, as additional security for the performance of” the covenants of thé lessees, “and not as rent. ” Defendants took possession under this lease, and continued in possession until some time in January, 1891, when, for default in the payment of the rent which had accrued on January 1, 1891, plaintiff instituted summary proceedings to recover possession of the premises, under the statute for such cases made and provided. These proceedings were not contested, and, on January 22, 1891, resulted in a final order awarding such possession to the plaintiff, whose representative, however, at onde informed defendants that she did not intend to take possession, nor would she accept it, and. that
This court has held in Gallagher v. Reilly, (Com. Pl. N. Y.) 10 N. Y. Supp. 536, and Ash v. Purnell, (Com. Pl. N. Y.) 11 N. Y. Supp. 54, that a tenant against whom summary proceedings to recover possession of the demised premises are instituted may, at any time after the service of the precept upon him, voluntarily comply with its requirements, and anticipate the final order in favor of the landlord and execution of the warrant for delivering of possession to him by removing from the premises, and that, if he does so, such removal will as effectually cancel the lease, and end the relation of landlord and tenant, as though the warrant had been actually issued as provided in section 2253 of the Code of Civil Procedure. We entertain no doubt of the accuracy of these decisions, and reiterate the principles upon which they proceeded; nor do we countenance the proposition that a landlord may prosecute such summary proceedings to a finality, and, at the same time, neutralize their effect by notice to the tenant that he will not avail himself of the rights and remedies therein secured. The landlord having effectually declared his intention to claim and recover possession, by a solemn invocation of the aid of the courts for that purpose, the tenant should be permitted to elect whether he will voluntarily submit to the landlord’s claim, or abide by his notice that he will not enforce the order awarding possession to him. Nothing short of a withdrawal of the proceedings, however, and notice of it to the tenant before the latter has complied with the precept, by removal, should be permitted to have the effect of giving continuity to the lease and the relation of the parties thereto. If the tenant has removed upon receipt of the precept, and before withdrawal of the proceedings and notice of such withdrawal to him, the lease and the relation of the parties as landlord and tenant can be renewed, or continued, only by means of a new agreement. A contrary view would require that the tenant be subjected to a tenure even more precarious than that of a tenant at will. The latter is removable only upon a previous notice of at least 30 days, while the former would be in constant jeopardy of ejectment, without as much as a moment’s notice. Our conclusion is, therefore, that the pendency of the summary proceedings instituted by the plaintiff, the recovery of the final order therein awarding possession to the plaintiff, and the abandonment of the premises by the defendant, notwithstanding plaintiff’s notice that she would not enforce the order,
The judgment appealed from should be affirmed, with costs.