226 A.D. 811 | N.Y. App. Div. | 1929
Order denying defendant’s motion to dismiss complaint reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff, if so advised, to plead over within ten days. There are no allegations of fact constituting either actual or constructive eviction and one or the other is indispensable to a good complaint for damages for breach of covenant of quiet enjoyment. (Matter of O’Donnell, 240 N. Y. 99, 104; Scriver v. Smith, 100 id. 471; Home Life Ins. Co. v. Sherman, 46 id. 370, 372.) The issuance of the warrant in the summary proceedings, although it terminates the relation of landlord and tenant so far as the written instrument involved herein is concerned, does not constitute an eviction as the warrant may never be executed, and unless it be executed there will be no actual eviction; and unless by way of avoiding its execution the plaintiff submits by valid attornment to the owner of a paramount title having the right to have the warrant executed, there is no constructive eviction. If the present possession is by reason of the latter situation there should be an allegation to such effect in the complaint, and it is for that reason, should the facts justify, that leave to plead over is granted. Lazansky, P. J., Young, Hagarty, Seeger .and Carswell, JJ., concur.