127 N.Y.S. 438 | N.Y. App. Div. | 1911
Lead Opinion
On the 1st of October, 1908, the landlord, the respondent in this proceeding, entered into a written agreement with the tenant, appellant, by which she leased certain rooms in a house known as No. 411 West End avenue, in the city of New York, for a term of one year, commencing on the 1st of October, 1908, and ending on the 1st of October, 1909. The tenant continued in possession after the expiration of the term, whereupon on October 1, 1909, this proceeding was instituted to dispossess the tenant. The tenant interposed an answer by which he admitted the making of the lease and that he is in possession of the premises, and for a defense alleged that in August, 1909, lie leased the premises for a further term of one year commencing October 1, 1909, and that he was in possession of the premises by virtue of that lease; and for a second defense alleged that subsequent to making the lease for the term ending October 1, 1909, the landlord executed and delivered to one Kohlman a written lease of the premises- described in the petition for the term of three years to commence October 1, 1909; that the said lease had not been canceled but was in full force and effect, and, therefore, the said landlord was not entitled to the possession of the said premises; and that the landlord had not legal capacity to maintain this proceeding. A jury having been demanded the case came on for trial before a justice of the Municipal Court and a jury. The tenant attempted to prove a new lease to him which the landlord disputed and the question of whether or not a new lease was made was submitted to the jury who found in favoi of the
Summary proceedings are regulated by the Code of Civil Procedure. Section 2231 of the Code of Civil Procedure provides that a tenant may be removed from the demised premises when he holds over and continues in possession of such premises or any portion thereof after the expiration of his term without the permission of the landlord. Séction 2235 of the Code of Civil Procedure pro^ vides that “ the application may be made by the landlord or lessor of the demised premises.” It is conceded in this case that the applicant was the landlord and lessor of the demised premises and the jury by their verdict have found that the tenant had no right' to the possession of the demised premises. The landlord in this proceeding, therefore, has brought himself expressly- within the provisions of section 2235 of the Code of Civil Procedure as a person who can maintain this proceeding. There is no provision of law to which our attention has been called or which we have been', able to find that limits the application of this section to a landlord ■who has not leased the premises for a new term commencing at the expiration of the term of the tenant whose removal is sought, and it seems to me that as the statute expressly provides that the “ landlord or lessor” may maintain the proceeding we are not justified in limiting the application of the express terms of the section because some other person besides the landlord or lessor would also be authorized to institute such a proceeding. The provision of section 2235 of the Code of Civil Procedure is explicit and direct and gives to tlie “ landlord or lessor ” the right to institute the. proceeding without limitation.
The defense is based upon the provisions of section 223 of the Real Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) which provides that “ The' grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a
Assuming that under this decision the new tenant would have a right to institute this proceeding- although not expressly given that right by any provision of the Code of Civil Procedure, the question
It follows, therefore, that the order appealed from must be affirmed, with costs.
Scott and Dowling, JJ.j concurred; McLaughlin and Laughlin, JJ., dissented.
Dissenting Opinion
The question presented by this appeal is whether a landlord may institute and maintain summary proceedings for the removal of a tenant on the ground that the tenant is holding over after the expiration of his term, where the landlord has, prior to the expiration of such term, duly executed a lease of the premises for another term commencing at the expiration of the then fixed term of the first tenant, and, therefore, in -full force and effect at the time such summary proceedings are instituted. The Court of Appeals has recently decided that in such circumstances the second tenant has the right as landlord to hold the first tenant for another term, the same as the landlord from whom the premises were leased would have had a right, had he not parted with his right to possession by executing a new lease, to hold the tenant to a.renewal of the term for holding over. (United Merchant's Realty & Improvement Co. v. Roth, 193 N. Y. 570.) I am of opinion that it necessarily follows from that decision that the original landlord éannot successfully maintain a summary proceeding. Being subject to an election on the part of the second tenant to hold him for a renewal of the term which may have been made at once and without notice as soon as he remained in possession for any appreciable time after the expiration of his original term, and to payment of the rent during such period of renewal, it cannot be that he is at the same time subject to be dispossessed in a proceeding instituted’by his former landlord, who has . parted with right to the possession of the premises until the expira
The second lease was excluded- and, therefore, there is no evidence or claim even that it gave no right to the 'tenarit to sublet the premises. and we are not concerned with that_ question. •
McLaughlin, J., concurred.
Determination affirmed, with costs, /