Bigler v. Furman, 58 Barb. 545

Bigler v. Furman

58 Barb. 545 | N.Y. Sup. Ct. | 1871

By the Court, Ingraham, P. J.

However harsh and oppressive the rule may be, I consider it well settled in this State, that a tenant cannot dispute the title of his landlord, unless some change has taken place in the landlord’s title subsequent to the taking of the lease. In 6 Wend. 670, the court says: “ A tenant cannot dispute the title of his landlord, so long as it remains as it was at the time the *556tenancy commenced; but he may show that the title under which he entered has expired, or been extinguished.” This case was approved in 15 N. Y. 374. In Vernam v. Smith, (15 N. Y. 328.) Denio, Ch. J., says: “ It has been very often decided, that in debt or assumpsit for use and occupation, the defendant cannot deny the title of the. lessor;” and, if the lease be made by deed, this plea cannot be interposed. At common law, where the lease was not under seal, the defense might have been available. See also Hoag v. Hoag, (35 N. Y. 469.) Numerous other cases may be found in a note in Washburn on Real Estate, vol. 1, pp. 367-369. The only case in which the tenant who has not entered on the premises, may set up want of title in his landlord, is where he was induced to accept possession or to enter into the lease by fraud or mistake. Although some facts are averred in the answer which would go to make up the defense of fraud, there is not enough alleged for this purpose. This may be corrected on amending the answer.

[First Department, General Term, at New York, February 7, 1871.

Judgment should be affirmed, with leave to the defendants to amend their answer, on payment of costs.

Ingraham, P. J., and Geo. G. Barnard, Justice.]