1 Hilt. 399 | New York Court of Common Pleas | 1857
Lead Opinion
The foundation for this proceeding was the demif® from the plaintiff to Mrs. Markey, and unless the evidence will support a finding, on the part of the justice, that the defendants’ possession was under that demise, the judgment was erroneous! As the defendants entered while Mrs. Markey was in possession and before the expiration of the month for which she had paid rent, the legal presumption might be that they remained in possession after she left, as her assignee. But that presumption 'is destroyed by her positive statement that she never gave thexni, permission to come in, or sold or assigned her lease to them 9 that she did not want to stay in the premises, and that they • came in as she was moving out, claiming that the place was theirs; that she did not forbid them from coming in, because she thought that she had no right to forbid their coming into their own house. The entry and possession of the defendants, therefore, was under a claim of title hostile to the plaintiff, and not under or by virtue of his demise. As Mrs. Markey was leaving, they entered, claiming that the premises were theirs, When they entered, she had the right to the possession until the expiration of the month; and, as between her and the landlord, he had the right to possession after that time, as she gave up the premises. As the defendants claimed that the premises were theirs when they entered, that claim was as hostile to the right of possession she had under the demise as it was hostile to any claim the
The judgment should be set aside.
Dissenting Opinion
(dissenting). — The first objection taken before the justice, and upon which the defendants moved to dismiss the proceedings, was, that the premises not being within the district for which the justice was elected, ho had no jurisdiction. That objection was not urged on the appeal, and it may not be necessary to notice it; but it was not well taken, because the jurisdiction of the justice in these proceedings is co-extensive with
Tbe next objection taken, and upon which a motion was also made to dismiss the proceedings, was, that there was no evidence that the defendants entered under Mrs. Markey, the plaintiff’s lessee. It is true that these proceedings cannot be entertained unless the relation of landlord and tenant exists (Evertson v. Sutton, 5 Wend. 281 ; Roach v. Cozine, 9 ibid. 227 ; Sims v. Humphrey, 4 Denio, 185 ; Benjamin v. Benjamin, 1 Selden, 387) ; but when that is once established, it attaches.to all who succeed to the possession during the demise, whether as under-tenant or as assignee. See opinion of Justice Sutherland, in Jackson v. Davis, 5 Cowen, 129, and Jackson v. Miller, 6 Wend. 233. There was no objection to the sufficiency of the affidavit on which the summons was issued, made before the justice, and the only one stated by the appellants, in the argument submitted by them, is, that the affidavit did- not aver any privity between the landlord and the appellants. It was not necessary that it should. The proceedings were not founded upon- the relation of landlord and tenant between the appellants and the respondent, but between Mrs. Markey and the respondent, which gave him the right, as suggested, to remove all persons who claimed under her. There can be no doubt about this, the statute providing for such a state of things in express terms. A tenant for any part of a year, and the assigns, under-tenant or legal representatives of such tenant, may be proceeded against and removed in the cases enumerated. 2 Rev. Stat., 4th ed., 756. The affidavit alleges that the appellants entered upon the premises under Mrs. Markey, and on information and belief that Mrs. Markey demised the same to them. The possession of the premises was not denied, although it was claimed to have been taken under title, and not under Mrs. Markey; but the respondent proved the letting to Mrs. Markey, and the possession of the appellants, by the witness Margaret Carlisle. This did not establish that they were the under-tenants of Mrs. Markey, but created a presumption of law that they were her assignees. Will
The tenant, though he may have an interest in the premises, cannot deny his landlord’s title; and those claiming under, or who follow, or unite with him in the possession, must be subjected to the laws which govern the relation of the original parties. Suppose, for example, that “A” rented a house to “B,” and “C” hired from “B ” lodgings and apartments with board, and, when the term of “ B ” expired, refused to quit the apartments hired, although “B ” gave up the rest of the premises to the landlord. “ C ” would not be the tenant of “ B.” The relation of landlord and tenant would not exist between them (Wilson v. Martin, 1 Denio, 602), and unless presumed to be the assignee of “ B,” from possession alone, could not be removed if it be held that none but under-tenants, assigns, or legal representatives can be proceeded against, and not then successfully, if he were permitted to rebut that presumption, and to prove the incident; of his possession. Where, however, the tenant, upon tbe expiration of his term, vacates the premises, and, before the landlord resumes actual possession, a person enters, these proceedings could not be adopted against him. There would then be no relation of landlord and tenant, and no privity of contract by which he could be affected. He would be neither the under-tenant, assignee, nor legal rejeresentative of the tenant, and the landlord would be driven to his action for relief. It is true, that any person in pos
Any person in possession may, by appearing, protect himself against the allegation, either that the rent is due or the term expired. He has an interest in the possession which he may wish to maintain, and may put the landlord to the proof of the facts named, ne may also deny that the applicant is the landlord as alleged, by showing that the tenant hiréd from some other person, or deny that the person named as the tenant is in fact the tenant, and show that the premises were let to some other person. If a rule contrary to the one here presented prevails, then any person who enters during the term, not as assignee, and not as under-tenant, although by collusion with the tenant, cannot be ejected, notwithstanding that the tenant himself has abandoned or quitted the premises in deference to the landlord’s title and right. I do not believe such to be the law. Here the proof is, that the appellants entered while Mrs. Markey was in possession, and without opposition or objection from her; and it was sufficient to- entitle the respondent to possession of the premises. The motion to
By section 471 of the Code of Procedure, the provisions of that act are excepted from any application to these proceedings, and the respondent was not obliged to submit to an examination. For the same reason, and the additional, one that he was proved to be in possession, Eichard Carlisle was also properly excluded. Whether he was in fact in possession, the whole testimony being conflicting on that subject, was a matter of fact to be decided, and he was therefore a party to the record, and could not be examined for his co-defendant or himself.
There is nothing in the objection that a proceeding, simiktr to the one under consideration, was formerly had before the justice. It was discontinued, and no judgment by the justice ever announced or made. There was no decision of the cause.
Though a suit be tried on its merits before a justice, and submitted for his decision, yet if he omit to render judgment therein, the proceeding will form no bar to a second action for the same cause. Young v. Rummell, 5 Hill, 60. There is nothing in the statute to prevent the applicant from discontinuing the proceedings at any time before a judgment. The cases cited by the appellants show that a cause being submitted, the justice has no power to enter a judgment of nonsuit. Here there was no finding of any kind, and no judgment. The plaintiff, in an action prior to the Code of Procedure, and down to the adoption of the 47th rule of the late Supreme Court in 1845, might refuse to answer when the j ury returned to the bar to render their, verdict, and be nonsuited. That rule of the Supreme Court cannot be held to apply to summary proceedings to recover the possession of land. I think the judgment should be affirmed.
Judgment reversed.
Concurrence Opinion
I concur with Judge Daly, in the opinion that the evidence did not warrant the justice in finding that the defendant was holding the possession under the tenant, or that there was any privity which warranted this proceeding against the defendants to obtain possession of the premises.
The presumption of law that the defendants were the assignees of the tenant was rebutted by positive evidence.
I concede that there is great hardship in a landlord being compelled to resort to an action to obtain possession of his premises from an intruder; but if the laws give no authority to remove him in such a case, the remedy is with the legislature, and not the courts.
The decision of the justice should be reversed.
