188 Misc. 500 | City of New York Municipal Court | 1947
On this motion by tenants to vacate a final order made February 8, 1946, upon the consent of the tenants contained in a written stipulation entered into between the respective parties and their attorneys on February 4, 1946, which stipulation also contained a consent by the landlords to a stay of the execution of the warrant to dispossess until January 31, 1947, the petition of the cotenant in common, Nat H. Kristel, filed in the summary proceeding and the affidavits in support of and in opposition to the motion disclose the following facts pertinent to the issues presently before the court: (1) That on or about December 1,1944, the then landlords and tenants in common, Gardes Realty Corporation and William Klein, as substituted committee of the property of Hubert de Stuers, an incompetent person, entered into a lease agreement with the tenants herein, by which agreement the premises in question were
(2) That on or about August 20, 1945, Gardes Realty Corporation conveyed its undivided eight-fifteenths interest in and to the premises and to said lease to Nat H. Kristel, the petitioner herein.
(3) That by a letter dated September 13,1945, Kristel notified the tenants that their lease would not be renewed as he required the space occupied by them for his own business and that he intended to seek possession thereof at the expiration of their term.
(4) That on or about January 14, 1946, the tenants herein instituted an action in the Supreme Court, New York County, asking for a declaratory judgment, inter alla, determining the rights and legal status of the defendants therein (the landlords originally named in this proceeding) to act jointly as landlord under the emergency rent laws; to decree that defendant Kristel, if adjudged to be a landlord under the* emergency rent laws, did not in good faith, seek possession of the space in question as is required by said emergency rent laws; to restrain Kristel from interfering with the tenants’ possession; and to direct the landlords to execute a new lease with tenants and to accept the “ emergency rent ” from the tenants.
(5) That on January 17,1946, the plaintiff-tenants moved in the Supreme Court for a temporary injunction enjoining Kristel from interfering with the tenánts’ possession and from instituting or maintaining any summary proceeding to recover possession thereof; that on that date, the same parties and their same attorneys as were named originally in this proceeding, agreed to discontinue the Supreme Court declaratory judgment action, which action was later discontinued, upon the condition that a summary proceeding would be instituted in proper form and suEcient to give the Municipal Court jurisdiction, in which proceeding all the owners of the property were to be joined as landlords; that a stipulation would be entered into consenting to the entry of a final order awarding possession of the premises to the landlord, provided a stay of execution until January 31, 1947, would be granted to the tenants.
(6) That on February 2, 1946, a precept and petition dated February 1, 1946, were served on the tenants herein, which petition was made by Nat H. Kristel, signed by him alone and contained allegations among others necessary for proper pleading in a petition, to the effect that: (a) Petitioner Kristel was one of the owners and made the petition on his own behalf and
(b) The premises were hired by the tenants pursuant to the agreement heretofore mentioned.
(c) The former landlord and owner of an undivided eight-fifteenths interest in the fee and the lease, Gardes Realty Corporation, conveyed its interest to Nat H. Kristel on August 20, 1945.
(d) The grounds under which the summary proceeding is brought come within the purview of subdivision d of section 8 of the Emergency Rent Laws of 1945.
(e) The landlords acquired title on August 20, 1945, and seek in good faith to recover possession of the commercial space for. their immediate and personal use.
(f) The landlords have an equity in the property of more than 25% of the purchase price and have an interest of not less than 50% of the whole investment in the business which they proposed to carry on in such space.
(7) That on February 4, 1946, a stipulation was entered into between the parties and their attorneys, including William Klein in his representative capacity in person, by which it was consented and agreed between them that: (a) A final order awarding possession to the landlords of the premises in question for the exclusive use of Nat E. Kristel was to be entered subject to the terms of the stipulation.
(b) No warrant was to be issued pursuant to such final order or execution thereof prior to January 31, 1947.
(c) Tenants acknowledge the right of Kristel, as. one of the landlords, to possession under the provisions of all existing applicable statutes, for his own immediate use, and hereby waive and surrender any and all claim or right to possession except as herein provided.
(d) All rights of the tenants to seek damages from Kristel under the statutes by reason of his failure to take possession of or use the premises as provided by statute were reserved to them.
(8) That a final order awarding delivery of the possession of the premises in question to the landlord was made on February 8, 1946, and the issuance of the warrant thereunder was stayed until January 31, 1947.
(9) That on June 17, 1946, pursuant to the order of Mr. Justice Kenneth O’Brien, of the Supreme Court of the State of New York, William Klein was discharged as substituted committee of the property of Hubert de Stuers and directed to
(10) That on and since July 1, 1946, the tenants herein have been paying the rent to Nat H. Kristel and Hubert de Stuers as landlords.
On the motion presently before me, almost a year since the final order was made on February 8, 1946, the tenants advance the following contentions as the basis for their application to vacate and set aside the final order and to dismiss the petition of Nat H. Kristel: (1) That chapter 3 of the Laws of 1945 (Commercial Rent Law) and acts amendatory thereof are applicable to the premises in question and the parties concerned therewith.
(2) The consent of the tenants contained in the stipulation of February 4,1946, to the entry of the final order herein is void and of no effect under the provisions of said emergency rent laws.
(3) That the landlords and the petitioner Kristel do not bring
themselves witMn the exceptions to removal of tenants as provided for in said emergency rent laws, which provisions for exceptions to removals must be literally met by those seeking to avail themselves of such exceptions: (a) Recovery of pos-
session of rented property from the tenant thereof must be sought in good faith by the holder or holders of the full legal title for Ms or their immediate and personal use.
(b) A recovery of the possession of such premises by the several holders of the legal title for the exclusive and personal use of one of the holders of the title is not in compliance with the said emergency rent laws, for the Legislature, in authorizing such recovery, meant for the immediate and personal use of either a single owner or in the cases of co-ownership, the use of all and not for the use of one of them.
(c) A landlord or person who seeks to recover possession of rented premises for his own immediate and personal use must show that he either owned or acquired an enforcible right to buy or take possession of the building or other rental area prior to January 24, 1945, or acquired title to the building or other rental area subsequent to January 24, 1945. Kristel does not meet either of these requirements, as he had no interest whatsoever in the premises prior to January 24, 1945, and has acquired no “ title ” subsequent to that date, but merely acquired an eight-fifteenths interest in the fee as a co-owner or tenant in common.
(d) The right to recover possession under the exceptions to removal of tenants set forth in the emergency rent laws is a
(4) That, since there has been an obvious change in the ownership of the premises since the summary proceedings were instituted and the final order entered by which the landlords named in the petition herein no longer hold title to the premises (the discharge of Klein as substituted committee and restoration of the property to de Stuers with subsequent payment of rent to Kristel and de Stuers) the entire proceeding should fail and the petition be dismissed as Klein is now a complete stranger to the “ premises ”.
(5) That there is a complete lack of good faith on the part of Kristel in seeking the possession of the premises for his own immediate and personal use as prior to the institution of these proceedings there was space available in this building occupied by the tenants which Kristel could have occupied but he and his co-owner rented such space to another occupant of the “ premises ”. Further, Kristel is seeking to recover possession of other space in this, same building by dispossessing other tenants therein, in addition to dispossessing tenants in another building in which he has an interest. All this is over and above the store space now occupied by him in this same building and loft space in the immediate vicinity thereof, all of which is sufficient for his present business needs.
(6) That the tenants, if forced to vacate premises which they have occupied over a period of many years, would incur irreparable injury to their business and posisbly be forced to discontinue business. That to permit the expansion of one man’s business to the extinction of the business of others is against all principles of public policy and should not be allowed by the courts but condemned as an act of bad faith.
The landlord Nat H. Kristel, of course, vigorously resists the contentions of the tenants by claiming that the stipulation of the parties is valid and binding on all parties thereto, as all these issues were known and properly assertable by the tenants at the time they agreed, upon the advice and guidance of their own counsel, to the terms of the stipulation. It is not denied that Kristel has an equity in the property of not less than 25% of the purchase price nor that he possesses an interest of not less than 50% in the business which he proposes to carry on in the “ premises ”. He further contends that he is a “ person ” who acquired “ title ” to the building subsequent to January
The facts of the case and the contentions of the parties have been set forth at great length herein for the reason that they illustrate to a marked degree the desperate situations and problems which are presently existing and progressively growing worse in landlord-and-tenant relationships. The courts are petitioned daily to give relief from stipulations once validly and knowingly entered into and from which benefits have been received by the tenants, often far beyond what the statutes or the courts could give. Novel constructions of statutory language and new but often superficial interpretations of long-established principles of law have been forcibly advanced as the grounds for relief from these stipulations to such an extent as to make the former acceptable and preferred practice of disposing of litigation by the stipulations and consent of the parties almost a vain and idle procedure. It is in support of this thought that I have gone into such detail of the facts and the contentions of the parties, as well as to enable me to state clearly the basis for the conclusions which I have reached on this application.
The Municipal Court has jurisdiction under the provisions of subdivision 3 of section 6 of the New York City Municipal Court Code (L. 1915, ch. 279, as amd.) to make a final order in a summary proceeding upon the consent of the parties without taking proof. (Tully v. Reclamation and Building Corp., 241 App. Div. 742; Dalerose Realty Corp. v. Kleinberg, 116 Misc. 603.) Upon the filing of the stipulation for final order and for judgment, there is nothing for the court to determine in its judicial capacity, and all that remains is the routine task of clerical formalities respecting the entry of the final order and judgment. The omission to perform this duty is curable at any time by order nunc pro tune. (Tully v. Reclamation and Building Corp., supra.) However, courts exercise a large control over all proceedings in an action so long as the action is pending, and the parties can be restored to their original positions; and in the exercise of their discretion, courts may relieve litigants from stipulations entered into during the pendency of the case, on motion in the action, when such stipulations were either unadvisedly or inadvertently signed, or when the circumstances reveal that the stipulation should not be upheld, in order to promote justice and prevent wrong. (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435, 445.) Until the warrant to dispossess is actually
While it is true that parties to any legal proceeding may stipulate away statutory and even constitutional rights, and may in many ways, by their stipulations make the law for any legal proceeding which not only binds them as parties but which also the courts are bound to enforce (Matter of Malloy, 278 N. Y. 429, 433; Mann v. Simpson & Co., 286 N. Y. 450, 459), the consent or stipulation of the parties to a legal proceeding cannot confer a jurisdiction of the subject matter upon the court where the court has only such power as is conferred by statute. (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, 324; Matter of Malloy, supra, p. 434; Gilroy v. Becker, 186 Misc. 93, and cases cited therein.) Though the allegations of a petition may be sufficient prima facie to confer jurisdiction upon the court to entertain the proceedings and to make a final order upon the consent of the parties (Matter of City of Albany v. Assrs., Town of Coeymans, 253 App. Div. 436, 439; Ellenbogen v. Caldwell, 270 App. Div. 946; Gilroy v. Becker, supra), such allegations' cannot survive proof that the court in fact had no jurisdiction of the subject matter. (Matter of City of Albany v. Assrs., Town of Coeymans, supra.) The objection to the jurisdiction in such case may be taken at any stage of the proceeding, and the court may, at any time when its attention is called to the facts, on its own motion refuse to proceed further and dismiss the proceeding. (Robinson v. Oceanic Steam Nav. Co., supra, p. 324; Gilroy v. Becker, supra.) The only exception to this general rule that lack of jurisdiction to render a judgment or * determination may be asserted at any time is where jurisdiction depends upon a question of fact. If that be litigated and determined, then the question is settled by the judgment, which becomes final and conclusive, unless reversed on appeal therefrom. (Matter of Doey v. Howland Co., 224 N. Y. 30, 38; O’Donoghue v. Boies, 159 N. Y. 87, 99.)
The foregoing are the principles of law which must be considered in disposing of the arguments of the parties to this application for vacating an apparently valid final order of this court made upon the stipulation of the parties who had full knowledge of all the facts and the defenses available. The Municipal Court has jurisdiction over summary proceedings to
One of the grounds on which the tenants seek to void their stipulation and have the proceedings dismissed is that it would be against all principles of public policy to permit Kristel, the petitioner herein, to oust the tenants so that he may expand his business to the extinction of another’s business as will happen to these tenants if they are forced out of their possession of many years. This argument strikes a responsive chord in me, for on March 29, 1946, in the case of Wasserstein v. Aronowitz & Sons, I disapproved of “ expansion at the expense of extinction.” However, the Appellate Term, First Department, on June 28,1946 (63 N. Y. S. 2d 549), reversed the final order made in favor of the tenant and granted a final order in favor of the landlord. This being the present state of the law on that question, this argument, no matter how much it appeals to one’s sense of equity and justice, avails the tenants nothing as the Legislature has as yet shown no intention to restrict the rights of owners and landords to recover rented space purely for expansion of the owner’s or landlord’s business. (See, also, Coyne v. Silvers, 187 Misc. 357, affd. 271 App. Div. 777; Kruger v. Graubard, 188 Misc. 82.)
The tenants’ next argument to vacate the final order and to dismiss the proceedings' is that the landlords named in the petition herein did not in “ good faith ” seek recovery of the possession of the premises for their immediate and personal use, but instead sought recovery of possession for the use of a person who does not qualify for such recovery under the provisions of the emergency rent laws. They further argue that this <£ good faith ” condition is an express provision of these emergency rent laws which must be established by the petitioner in order to entitle him to recovery under the law and thus, the tenants’ stipulation is not binding on them, as it is void and of no force and effect since a ££ waiver of any of the provisions of this act
In support of their contention that there was no jurisdiction in the Municipal Court to make a final order in this summary proceeding, the tenants advance as their main point, two propositions: the first, that subdivision (d) of section 8 of chapter 3 of the Laws of 1945 (as amd. by L. 1945, ch. 315, and by L. 1946, ch. 272) does not permit the recovery of the possession of commercial space from the tenant thereof by tenants in common and owners of the fee for the immediate and personal use of one of the tenants in common, even though he may qualify in all other respects under the act; and secondly, that Kristel, as purchaser of an eight-fifteenths interest in the fee is not such “ a person who acquires title to the building * * * subsequent to January twenty-fourth, nineteen hundred forty-five ” and therefore is not entitled to seek relief under the provisions of subdivision (d) of section 8 of the Act. If these propositions advanced by the tenants were to be sustained and tenants in'common as owners of the fee, either as individuals or as an entity seeking the recovery of the possession of com
Tenancies in common were well known in the common law though not as favored as joint tenancies; but today, they are favored over joint tenancies, for “ Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy * * (Beal Property Law, § 66.) (Italics supplied.) The common-law doctrine favorable to joint tenancy was abrogated by statute because the public policy was to encourage the distribution of land among people with title separate and distinct in each unencumbered by the right of survivor-ship. (Overheiser v. Lackey, 207 N. Y. 229, 232, 236.)
The term “ ownership in land ” involves the idea of rights in some particular person or persons to use the land according to his or their pleasure. Under this concept, one does not own the land but rather an estate in the land, that is, the rights of possession, present and future. (1 Tiffany on Beal Property [3d ed.], § 2.) By section 30 of the Beal Property Law, estates in real property are divided into estates of inheritance, estates for years, estates at will, and by sufferance. Estates, in respect to the number and connection of their oivners, are divided into estates in severalty, in joint tenancy and in common. (Beal Property Law, § 65.) Under section 31 of the same Law an estate of inheritance continues to be termed a fee simple or fee; and “ The fee is the greatest interest that can be granted in real estate. It includes title, the right of possession and the
“ While, as a general rule, land or estates therein are held by one person in severalty, that is, in his own right only, without any other person being joined or connected with him in the ownership, this is not necessarily the case, and two or more persons may have undivided interests in the land # # (2 Tiffany on Beal Property, § 417.) Tenancies in common are characterized by unity of possession, the only unity which exists in all forms of co-ownership, as there is no necessity for unity of interest or title. A tenant in common, though owner of an undivided share only in the land, differs from a joint tenant in having a several and distinct estate therein, and, except for the fact that he has not the exclusive possession, he has the same rights in respect to his share as a tenant in severalty. Bach tenant in common holds his title and interest independently of the other tenants in common. (2 Tiffany on Real Property, § 426; Le Vee v. Le Vee, 93 Ore. 370; Tilton v. Vail, 42 Hun 638, 640; Chittenden v. Gates, 18 App. Div. 169,172; Manhattan Real Estate Assn. v. Cudlipp, 80 App: Div. 532, 535.) The title of a tenant in common gives him an immediate right of possession unless restricted by some encumbrance (Barson v. Mulligan, 191 N. Y. 306, 325; McKay v. Mumford, 10 Wend. 351; Berger v. Horsfield, 188 App. Div. 649, 652); and the fact that one tenant in common is in full possession of the whole estate does no harm to another, each being seized of each and every part of the land, and has a right of enjoyment of it, so long as he does not hold the other tenant out or deprive him of the occupation of the estate. (Austin v. Ahearne, 61 N. Y. 6, 14; Valentine v. Healey, 178 N. Y. 391, 396.)
A tenant in common may, in his own name and right, maintain an action in ejectment to recover possession of the real property owned by the tenancy in common without uniting his cotenants as plaintiffs in the action. (Civ. Prac. Act, § 993.) This section has been held to be declarative of the substantive law upon the subject of a person’s right to recover the possession of an undivided share in real property to which he is lawfully entitled; its purpose is fulfilled when it appears, prima facie, that the tenant suing has a legal title to an undivided interest in premises entitling him to the possession of the premises, possession of
It is in the light of the foregoing principles of the common law and statutory law that I must consider the tenants’ plea for a liberal construction of the provisions of subdivision (d) of section 8 of the Emergency Bent Laws by which this court would hold that the “ landlord ” or “ person ” entitled to seek the recovery of rented premises for “ his immediate and personal use ” is either an individual owner of an absolute title to the fee seeking recovery for Ms own use or a co-ownersMp acting as an entity and seeking recovery for their own use as an entity. It is the further argument of the tenants that these emergency rent laws were enacted “ to protect tenants in possession at the time the act became effective and must be liberally construed in their favor ”, quoting the words of tMs court in Blitzkrieg Amuse. Corp. v. Rubenstein Bros. Drinks (184 Misc. 975, 980). TMs the courts have done consistently even at the expense of straimng for a construction in the tenants’ favor. While emergency legislation should be liberally construed so as to effectuate the intention of the Legislature (Sissias v. Perlmutter, 184 Misc. 174; Rosen v. 370 West 35 St. Corp., 184 Misc. 172), it also should not be construed so as to raise any grave doubt as to its validity and constitutionality. In performing this judicial function of statutory construction, it is necessary to read the statute in its entirety to determine whether it accomplishes the purpose for wMch it was enacted. (Kuperschmid v. Globe Brief Case
In Twentieth Century Associates v. Waldman (294 N. Y. 571) the Court of Appeals said that the evils which the Legislature sought to remedy were the exactions of unjust, unreasonable and oppressive agreements for the payment of rent, with regard to certain types of commercial real property. (See, also, Matter of Cohen v. Starke, 269 App. Div. 256.) In Sissias v. Perlmutter (supra) Justice Shientag stated that the statute was designed not to penalize landlords or to favor tenants but to meet an emergency which threatened “ to cause inflation ”. The Appellate Term, First Department, in Trade Accessories, Inc., v. Bellet (184 Misc. 962) through Hammer, J., said at page 965: ‘1 Obviously the statute was not intended as an indictment of all landlords but rather as a remedy against evils which were being indulged in by some and were available for practice by any others who might desire to take advantage of the existing emergency ”, and again at pages 966-967 in respect to subdivision (d) of section 8: “ Thus read it is seen that the Legislature had clearly stated its intention. The language used is without ambiguity, indefiniteness or obscurity and must be accepted exactly as it is written. As clearly written the statute must be enforced. * * * Owners of buildings, and those who had enforcible rights to buy or take possession and those also who acquire title to buildings subsequent to the effective date of the act, have additional rights not necessarily involved in such a relationship [of landlord and tenant]. Obviously the Legislature intended to make provision to harmonize its prohibitions in respect of landlords with its consideration of and concern in respect to ownership rights and accomplished that reasonable result in the provisions of subdivisions (c) and (d) of section 8.”
Under the principles of law7 above stated, I believe the following are valid conclusions of-law: (1) A tenant in common of the fee is an owner of real property, having a legal estate therein.
(2) A tenant in common of the fee has a title in the fee, separate and distinct from that of his cotenants with only a unity of possession between them.
(3) A tenant in common of the fee has a right of possession exclusive against all other persons, except as to his cotenants or as to any incumbrances placed on it by the tenancy in common.
(4) One tenant in common may maintain summary proceedings to evict a lessee of the tenancy in common who is holding over, even though his cotenant did not unite in the summary proceeding with him, but instead may have given or expressed a desire to give a new lease to the holdover tenant.
(5) Under the provisions of subdivision (d) of section 8 of the Emergency Rent Law's, a tenant in common of the fee could be a “ landlord [who] owned or acquired an enforceable right to buy or take possession of the building or other rental area on or before January tw7enty-fourth, nineteen hundred forty-
Nothing said by this court in Blitzkrieg Amuse. Corp. v. Rubenstein Bros. Drinks (184 Misc. 975, supra) or in Straus-Duparquet, Inc., v. Moglen (185 Misc. 657) is contrary to those conclusions, for when the term “ full legal title ” was used in those cases, it was used in contradistinction to beneficial title or lease title and not as meaning “ absolute title ”; nor is Mueller v. Gittleson (186 Misc. 257) to the contrary, for while the court there mentioned facts tending to refute some of these conclusions, its decision was predicated upon an entirely different ground. The case of Robinson v. Collins (187 Misc. 359), decided by the Appellate Term, First Department, on April 25, 1946, holds that the owner of a fractional interest in the premises is not “ the landlord ” within the meaning of the Office of Price Administration regulation, but that case is distinguishable, not alone upon the grounds that different regulations are involved, but also, upon the ground that the petitioner had only a one-eighth interest in the premises acquired under a will. It may be of further, interest on that point to state that the Office of Price Administration has issued its certificate permitting the recovery of possession of dwelling premises owned by three tenants in common for the use of one of the tenants in common where that tenant in common had a 20% equity in the purchase price. (See Muller v. Goya, Municipal Court, Borough of Manhattan, Feb. 11, 1947, Lazarus, J.)
Therefore, with respect to this motion of the tenants to vacate the final order herein and to dismiss the proceedings, the petitioner Kristel having the right to recover possession of the premises in question and to maintain summary proceedings therefor, there being no issue as to his equity in the premises nor as to his interest in the business which he intends to conduct on the premises, the Municipal Court having jurisdiction to entertain these proceedings and to make its final order upon the stipulation of the parties without taking any proof and the
See, also, Slade v. Hornick Co., 188 Misc. 455.— [Rep.