33 Barb. 46 | N.Y. Sup. Ct. | 1860
By the Court,
The defendants appeal from an order of the district justice giving to the plaintiff possession of premises under the statute relating to summary proceedings. Mary Griffin was the owner of all the premises at the time of these proceedings. When the rent first accrued, she owned three-fourths of the premises' and Benjamin Stephens one-fourth. Part of the rent which was in arrears belonged to the estate of Benjamin Stephens and was assigned by the representatives of Stephens to her, before commencing the proceeding for possession. Mrs. Griffin demanded the whole rent, and on refusal to pay, by the tenant, obtained the order of dispossession against the tenant.
1. The only party who could commence these proceedings was the plaintiff. At the time of commencing them she was the owner of the whole estate in the premises. The heirs of Stephens had ceased to be landlords, by conveyance to Mrs. Griffin. If she could not conduct the proceedings as sole landlord, no other person could be joined with her, because no one else had any title to the premises. The statute directs the proceedings to be taken by the landlord, and no person but the one entitled to the possession can obtain the final order from the justice.
Sutherland, Ingraham and Bonney, Justices.]
2. It is objected that the demand for this rent was for more than the plaintiff had a right to claim, both as to the share which belonged to Stephens, and because interest was also required. As to the latter, it is sufficient to say that no interest was demanded. Although the notice stated the amount of rent, and the amount of interest thereon, yet the demand was only for the rent, and not for the interest. This objection therefore is of no avail.
3. The remaining question is whether the plaintiff could demand the whole rent, ánd take these proceedings. The tenancy was not denied, before the justice. The tenant admitted that the plaintiff was the owner of all the premises at the commencement of the proceedings. It appeared that the original letting was by the plaintiff and Stephens, as joint owners. Where the letting was joint, there can be no division of the rent, as far as the tenant is concerned. A demand of the rent may be by either, and must be of the whole rent, and not of any undivided portion. If Stephens had continued the owner it would have been necessary to have joined him as á landlord, but as his interest had vested in Mrs. Griffin and she was the sole owner, he could not have been so joined, even if he was living.
The demand by her for the whole rent was good, because any joint owner of land can demand the whole rent from the tenant, and a payment to one joint owner is good as to the others, and will protect the tenant. A demand of a share of the rent would not be sufficient to maintain the proceedings. Besides; the whole title to the rent had vested' in Mrs. Griffin by transfer from the representatives of Stephens. When she made such demand, it was for herself and to her use, and there was no other person who had any interest either in the rent or the demised premises.
I can see no ground of objection to the proceedings.
Judgment should be rendered for the respondent with costs.
