188 Misc. 519 | N.Y. App. Term. | 1947
Lead Opinion
The landlord instituted this summary proceeding against the tenant on April 2, 1946, to obtain possession of the premises for its own use. The property was commercial space. The petition recited that the tenant’s lease expired on January 31, 1946, and that he held over without the consent of the landlord; that on March 7, 1946, the present landlord- took title to the premises; that it seeks in good faith to recover possession of the business space occupied by the tenant for its immediate use in connection with its department store, in which business the landlord has an interest of more than 50%; and that the landlord’s equity-in the premises is more than 25% of the purchase price.
Attached to the petition was an affidavit by an attorney for the landlord stating that on March 8, 1946, he caused to be served upon the tenant a notice in writing to vacate the premises occupied by him within thirty days from the date of the receipt of the notice, and that the notice was duly received by the tenant on or before March 11, 1946. The affidavit recited that the notice was made part of the petition and precept served upon the tenant.
The tenant appeared by his attorney on April 12, 1946, the return date of the precept. The case did not go to trial. The tenant personally was in court and after a discussion with the court, a stipulation was entered into by the parties in writing, whereby the proceeding was settled and compromised. The tenant consented that a final order be made in favor of the landlord with a stay of execution until July 12,1946, the tenant being given the right on or before July 1,1946, to apply for an extension of the stay of execution for an additional thirty days. It was further stipulated that the tenant would pay the landlord for the use and occupation of the premises the sum of $106.42 monthly.
The motion to vacate the stipulation and dismiss the proceeding was denied, but the stay was extended to and including October 12, 1946. Prom the denial of that part of the motion which sought to vacate the stipulation and the final order in favor of the landlord the tenant has appealed to this court.
Concededly there were certain irregularities in the petition and in the notice to vacate the premises. The tenant was a statutory tenant paying rent monthly in advance and under section 232-a of the Beal Property Law he should not be removed unless at least thirty days before the expiration of his term a notice in writing is served upon him in the same manner as a precept in summary proceedings, giving him notice to move when his term expires.
The situation presents the familiar question of the various meanings of jurisdiction. Granting all the possible defects which could be claimed by the tenant, nevertheless, we have a situation where the Municipal Court has complete jurisdiction over the subject matter of summary proceedings.
There is nothing to prevent a tenant from accepting a lesser notice than section 232-a of the Beal Property Law prescribes or from accepting service in a manner other than is provided
The final order and order should be affirmed, with $25 costs.
Dissenting Opinion
(dissenting). It appears on the face of the affidavit of the landlord’s attorney in opposition to the motion to vacate the final order entered on consent that the attorney “ caused to be served on the tenant ” a notice to vacate the premises “ within 30 days from the date of the receipt of the notice ” which notice, affiant states, was received by the tenant on or before March 11,1946; and it is undisputed that the notice was served by mail.
The tenant held over as a statutory tenant, paying the rent monthly in advance for February and March, 1946, and the summary proceeding was begun April 2,1946.
Section 232-a of the Beal Property Law provides that no monthly tenant or tenant from month to month in the city of New York shall be removed unless at least thirty days before the expiration of his term the landlord serves upon him a notice in writing in the same manner as a precept in summary proceedings is allowed to be served by law that unless he removes when Ms term expires the landlord will commence a proceeding under the statute for his removal.
Manifestly there was no compliance with the statute in tMs instance, for the tenant’s monthly term, renewed by holding over, had not expired when the proceeding was begun, and, as stated, the notice was served by mail.
In Beach v. Nixon (9 N. Y. 35), a summary proceeding for holding over the term based on breach of condition, the court said (p. 37): “ The only remaining point is whether the covenant contained at the end of the lease either confers jurisdiction to
Further, in this instance the tenant’s consent was a waiver of the provisions of the emergency statute in that (1) under that act the tenant was entitled to remain in possession as long as he paid the rent, and (2) resort to eviction, under the exception permitting such proceeding, was conditioned upon the termination of the statutory monthly tenancy following the expiration of the lease; and by section 12 of the Act any waiver of its provisions “ shall be unenforceable and void ” as matter of public policy (L. 1945, eh. 315).
There was no element of estoppel here, as in Hoske v. Gentzlinger (87 Hun 3) and A. N. P. Realty Co., Inc., v. Tunick (115 Misc. 190), where the tenant had given prior notice to the landlord that he would quit the premises at the end of the month. (See Rogan v. Weiss, 115 Misc. 193.)
The order should be reversed, with $10 costs, and motion granted, and final order vacated.
Hammer, J., concurs with Shiextag, J.; Heóht, J., dissents in opinion.
Orders affirmed.