50 Misc. 148 | N.Y. App. Term. | 1906
The principal tenant appeals from a final order in favor of his landlord in summary proceedings. The proceeding was brought under subdivision 5 of section 2231, Code of Civil Procedure, which authorizes a summary removal “ where the demised premises or any part thereof are used or occupied as a bawdy house, or house of assignation for lewd persons, or for any illegal trade or manufacture or other illegal business.” The specific ground upon which the proceeding was instituted was that the premises had been used for the illegal business of selling liquor without a license; and the evidence relied upon was that the subtenant, one Gionannucci, had been arrested and convicted, on Movember 6, 1905, of having violated the Excise Law, on June 18, 1905, by selling liquor upon the premises without a license. This'proceeding was instituted on December 26, 1905. The subtenant thus convicted remained as subtenant and was such at the time of the trial. The appellant relies upon Shaw v. McCarthy, 2 Civ. Pro. 23, decided by the General Term of the Court of Common Pleas in June, 1882. The illegal trade complained of in that case was the selling of policy slips, which had been carried on by a subtenant who had, however, removed from the premises about a month and a half before the proceeding had been instituted. In that case it was considered and held that the tenant could not be removed under section 2231 of the Code, because the violation of the law had ceased prior to the institution of the proceeding. Six years later, in May, 1888, the General Term of the same court had occasion to consider a case
The final order should be affirmed, with costs.
O’Gormaw and Hewburger, JJ., concur.
Final order affirmed, with costs.