Bokee v. Hamersley

16 How. Pr. 461 | N.Y. Sup. Ct. | 1858

Clerke, Justice.

The court will never interfere by injunction, in these summary proceedings between landlord and tenant, except where there has been fraud or collusion, or where the justice has not obtained jurisdiction by want of the necessary preliminary steps, or other cause, or except where the tenant from the peculiar circumstances of the case, (as in Volloton agt. Seignett, 2 Abbott, 141,) is precluded from setting up his defence before the justice. Otherwise, the only remedy for the tenant is by certiorari to this court; by which it is now settled that we have full power to examine upon the merits every decision of the judge upon a question of law, and to affirm, reverse or quash the proceedings, as justice may require. (Benjamin agt. Benjamin, 1 Selden, 383.)

The only possible ground for the extraordinary interference of this court by injunction in the present case, is 1st. That the plaintiff is now the actual tenant under the lease, being the assignee of David A. Bokee, the lessee, and that the demand required by the statute was not made on him, but only on David A. Bokee, and, 2dly. That this is an action under § 64 of the statute, which allows the lessee or his assigns, at any time within one year to redeem, where the unexpired term of the lease exceeds five years at the time of issuing the warrant, by paying or tendering all rent in arrear and all costs.

1. With regard to the first ground, it appears that the plaintiff was the general assignee of all the lessee’s real and personal estate, in trust for his creditors. The assignment does not specify these premises: the plaintiff never took possession of them; he paid neither rent nor taxes, collected no rents, made no effort to sell; he left the whole control to the lessee, who is his father; and in short, he exercised no Set of ownership, to make himself liable under the covenants of the lease. A voluntary assignee in trust for creditors, cannot be presumed to have accepted the transfer of the lease, without some positive act indicating his acceptance; because by acceptance he may make himself personally liable for payment of rent and fulfilment of other' covenants, and the lease may be detrimental to the interests of the creditors. I do not think, therefore, that the landlord was obliged to recognize him as the tenant, so as to make it necessary to demand the rent from him. Besides, he was summoned as a party to the proceedings before the justice, he appeared, made no objection, that I can perceive, and certainly set up no defence. He had an opportunity after judgment under § 44, to apply to have the warrant stayed by paying the rent due and the costs, or by giving security for the payment thereof within ten days. This he has not done..

II. The second ground upon which the application is made, is not available under this complaint.- It does not state .that the rent and the costs have been tendered, or that anything whatever has been done by the plaintiff to entitle him to the redemption ¡contemplated by the statute. And even if he had placed himself in the proper position in this respect, this is not a case to which .the benefit of the section extends. The unexpired term of the lease did not exceed five years, at the time of issuing the warrant. The warrant was issued on the 81st of May last, the lease expires on the 1st of May, 1868.

The lease indeed, contains a covenant, that the lessor will at the expiration of the term, pay to the lessee the value of the building and improvements, which he may have made on the premises; or instead of paying for such building and improvements, the .lessor may at his option, .grant a. renewal of the lease for a further term of twenty-one years. This is not a demise for a further term of years, it wants that essential ingredient of a .demise—certainty; it depends entirely on the option of the lessor; and, in short, is nothing more than a covenant, giving no positive right of possession to the lessee; but a mere right of action for its breach, in case the lessor should neither pay the value of the improvements, nor grant a renewal of the lease.

The application must he denied with $10 costs.