| N.Y. Sup. Ct. | Mar 15, 1910
The main defense of the tenant to this proceeding, which was brought against him as a hold 'over, was that the landlord had made a new lease of the apartment, commencing at the end of the term of the tenant’s written lease, and prior to the commencement of the proceeding. The new lease was offered in evidence by the tenant, but excluded by the court • and his exception to its exclusion presents the only point worthy of consideration. The objection is based on United Merchants’ Co. v. Roth, 193 N.Y. 570" court="NY" date_filed="1908-12-15" href="https://app.midpage.ai/document/united-merchants-realty--improvement-co-v-roth-3599187?utm_source=webapp" opinion_id="3599187">193 N. Y. 570, 576, 577. That case construed section 193 of the Beal Property Law of 1895, chapter 547, and holds that within its language the new tenant is, in a similar case, the “ assignee of the lessor of such lease ” and, therefore, “ has the same remedies, by entry, action, or otherwise, for the non-performance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture as his grantor or lessor had, or would have had, if the reversion had remained in him.” It is contended that the words “ or otherwise ” in the quotation includes summary proceedings.
Section 2235, Code of Civil Procedure, which prescribes by whom summary proceedings may be instituted, also includes the assignee as well as the landlord, and, therefore, would seem at first sight to be governed by the case just cited. But the language is substantially taken from the Bevised Statutes of 1830 (2 R. S. 513, § 29), which, like the original landlord and tenant .act of 1820 (Laws of 1820, chap. 194), provided that the landlord as well as his “ assigns ” might make and present the oath. The General Term of the Court of Common Pleas'of this county decided, as far back as 1862, that under this provision the new tenant
We have not overlooked the passage in the opinion of the Court of Appeals to the effect that the new tenant “ and not the landlord” is “subjected to all the inconveniences and damages occasioned by the holding over;” but there is no indication that the statutory provisions with relation to the remedy by summary proceedings were in the mind of the court, and we do not feel justified in construing its opinion as overturning the uniform construction of over fifty years, in violation of the elementary principle of statutory construction above referred to.
The order should be affirmed, with costs.
Seabuby and Guy, JJ., concur.
Order affirmed, with costs.