115 N.Y.S. 256 | N.Y. App. Term. | 1909
Lead Opinion
The respondent is the owner of certain premises occupied by the tenants, Tucker and Vincent, under a. five-year written lease from January 1, 1908, the rent reserved being $100 per month, payable in advance. On June 1, 1908, the tenants defaulted in the payment of the rent; and the respondent instituted summary proceedings to recover possession,of the premises. The precept was returnable on June 15, 1908. On the return day the tenants appeared and filed an affidavit, made by one Carpenter, in which he set forth that the tenants, Tucker and Vincent, were a domestic corporation of which he was vice-president; that the said tenants had not paid the rent aforesaid, but were ready and willing to do so, “ to the person or persons entitled thereto;” that the respondent claimed to be entitled thereto, and also that one Marie L. Jackson claimed to be entitled to said rent; that said tenants had no interest in the respective claims, which were made without collusion with them, and that said tenants were ready and willing to deposit the amount of rent “ upon discharge from liability to either claimant.” The tenants, thereupon, paid into court the amount of rent and costs. At the same time, Marie L. Jackson, styling herself an “ intervener,” filed a so-called answer to the petition of the respondent, in which, after a denial of all the allegations of the petition except the allegation of hiring by the respondent to said tenants, she averred, in substance, that, on February 13, 1908, the respondent, in writing, assigned the lease, and other leases, made between himself and said tenants to her, which assignment contained this clause: “And I further constitute the said Marie L. Jackson my attorney in fact to enter into possession of said premises, and, in my name or otherwise, to collect the rents due under said lease, and, in my name or otherwise, to institute legal proceedings to recover the rents due and unpaid; this assignment is given as collateral security for the faithful performance of the covenants contained in a bond and mortgage, all bearing even date herewith, executed by Henry M. Erkins and Mary P. Erkins and is to become void upon the faithful performance of all of said covenants.” She also alleged that said mortgage was
Whatever right thereto the so-called “ intervenor ” had must be. determined in another action. She was not one of the parties to whom the right is accorded under section 2244 of the Code of interposing an answer in a summary proceeding. Heuser v. Antonins, 84 N. Y. Supp. 580. She was not and never had been in possession of the demised premises, and she is praying for the trial of equitable issues which is beyond the jurisdiction of the Municipal Court to grant, as that court has no equity powers.
MacLean, J., Concurs.
Concurrence Opinion
I concur. The assignment of the rents is in terms as collateral — the debt is not due — there is no claim of default on the part of Erkins, the mortgagor, nor that the intervenor has acquired any right to possess the premises.
Appeal dismissed, with ten dollars costs..