Hyman v. Boston Chair Manufacturing Co.

26 Jones & S. 282 | The Superior Court of New York City | 1890

By the Court.—Truax, J.

It is not necessary, in order to constitute an eviction, that the tenant be dispossessed or deprived of the demised premises' by process of law. It is enough if the tenant yield the possession of the premises to the person having the legal title thereto, or to the person who has been adjudged to be entitled to the possession of the premises. American & English Encyclopedia of Law, Vol. VII. p. 36, and cases cited.

The rule to be gathered from all the authorities, said the Court of Appeals in Home Life Insurance Company v. Sherman, 46 N. Y. 373, and which accords with good sense, is that when a judgment of a competent court has determined that a tenant shall' deliver possession of demised premises to a particular person, he need not wait to be forcibly ejected but may acquiesce in the judgment of the court and voluntarily obey its mandate.

It would be unreasonable to insist that plaintiff should have remained in the premises until he had actually been dispossessed by a marshal and.his property put out on the sidewalk. There was a judgment of a competent court, made in a proceeding to which both plaintiff and defendant were parties, that determined that the premises should be delivered to a person who had a better right to them than either plaintiff or defendant had. Plaintiff obeyed that judgment, and by so doing was evicted and the covenant of quiet enjoyment was broken.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Gorman, J., concurred.