117 Misc. 765 | City of New York Municipal Court | 1922
This is a motion made on behalf of the plaintiff for an order striking out the defendant’s answer and for summary judgment in favor of the plaintiff against the defendant pursuant to rule 113 of the Rules of Civil Practice. Before considering the merits of the motion and the sufficiency of the defense as presenting an issue, the question is presented as to whether the Rules of Civil Practice apply to the Municipal Court.
Under the provisions of section 15 of the Municipal Court Code it would seem that there could be no question about this, and there would be no doubt about it but for the decision in the case of Mitchell v. Schroeder, 94 Misc. Rep. 270; affd., 174 App. Div. 857, which interpreted that section and apparently limited its application.
I have never personally been in accord with the reasoning of that decision or the interpretation which has been given to section 15 by reason thereof. I believe that the' appellate court in reaching the determination in that case did not have before it controlling authority holding to the contrary. A distinction is drawn in that case between the inherent power of the Supreme Court and the conferred or statutory power of the Supreme Court. However, I believe that the provisions of the present Civil Practice Rules are applicable even under the limitations placed upon section 15 by the case cited. Undoubtedly the legislature had the right to change the practice in the Municipal Court if it so desired. The legislature did this very thing by the passage of a law which provided (Laws of 1920, chap. 902), for a convention “ to formulate and adopt suitable rules of, practice not inconsistent with the judiciary law nor with the civil practice act, adopted by this legislature, which shall he binding upon .all the courts in this state and all the justices and judges thereof, except the court for the trial of impeachments and the court of appeals.”
I know of no provision in the- Judiciary Law which is inconsistent with the application of the 'Civil Practice Rules adopted by the convention to the Municipal Court, and the Civil Practice Act by section 1 provides that the act “ except as otherwise expressly provided, shall apply to the civil practice in all the
The present action is brought to recover rent for the months of October, November and December, 1921, under a written lease executed on November 13, 1920, between the plaintiff and the defendant. The defendant by his original answer and also by his amended answer denied ‘ ‘ each and every allegation of the complaint excepting that he admits he is in the possession of the premises described in the complaint.” This denial is not sufficient, under the provisions of section 92 of the Municipal Court Code, to question the validity of the lease alleged in the complaint. Besides, in the separate defense of the answer the defendant expressly admits that he executed the lease alleged in the complaint and entered into the occupation and possession of the premises and paid the rent from December 1, 1920, to November 1, 1921. The defendant alleges that prior to and at the time of the making of the lease the premises in the rear of the apartment
The facts further appear that the defendant is still in possession of the premises. If he desired to claim fraud and for that reason repudiate or rescind the lease, he should have promptly on the discovery of the fraud surrendered possession of the property. This, however, the defendant failed to do but continued in the physical possession of the premises long after the alleged fraud was discovered.
The defendant’s supporting affidavit shows that “ a building was thereafter erected on said premises in or about the spring of 1920, as near as deponent can remember.” The building that he refers to is the new addition of the Plaza Hotel on Fifty-eighth street. The answer in paragraph eight alleges that on or about the 13th of November, 1920, a building or structure was built on the vacant lot, but the lease was only made on- the 13th of November, 1920, the term to commence on the 1st of December, 1920. What the defendant probably intended to allege was that the building was erected in the spring of 1921. In any event, the defendant remained in possession according to the undisputed facts and paid rent monthly to October 1, 1921.
As was said by Judge McLaughlin in the case of Levy Leasing Co. v. Siegel, 230 N. Y. 634: “A party cannot rescind while retaining the fruits of the contract. In the case of real estate he must surrender possession before he can maintain an action for rescission of the instrument under which he obtained possession.”
Judgment for plaintiff.