26 Misc. 709 | N.Y. App. Term. | 1899
This proceeding was instituted to recover the possession of the demised premises for nonpayment of rent, claimed to be due on December 1, 1897, under a lease which is set forth in the petition. The tenant Cox interposed an answer, in which he denied the allegations of the petition, and set up a further defense tending to show that one Charles Barson, Sr.,
On the first trial of this proceeding, the record of the October trial, above referred to, was put in evidence, and the landlord Mulligan urged the doctrine of res adjudicada. The justice, however, gave judgment for the tenant, and dismissed the proceeding. An appeal was taken to this court, where the judgment was reversed, on the ground that the adjudication in the former proceedings conclusively established the continuance of the rela
The justice assigned the following reasons for his decision, viz.: “ The lease from Barson to Mulligan, being dependent upon a life tenancy, terminated upon the 2d day of October, 1897, with the death of Barson. The relationship of landlord and tenant was not established by the decision of Judge McCrea (the justice before whom the October case was tried), owing to the said justice having lost jurisdiction of the proceeding by reason of his failure to render his decision within eight days after the submission of the case for his consideration. The testimony in support of this contention is not disputed, and it is clearly shown that, while the only hearing in the proceedings was held on the 21st of October, the justice’s decision had not been communicated to the clerk as late as November 4th, nor was there any stipulation entered into extending the justice’s time in which to render his decision. The lease, therefore, having terminated, both by law and by the agreement contained in said lease, the relationship of landlord and tenant, as between Mulligan and Cox, had terminated, and, according to the evidence submitted, possession of said premises cannot be given to Agnes II. M. Mulligan, but is subject to the direction of the heirs of the wife of said Barson.”
In our disposition of the first appeal herein (Mulligan v. Cox, supra), we assumed that the final order in the proceeding to recover possession for nonpayment of rent, due October 1, 1897, was a regular and valid adjudication, as the record of the October case was received without objection upon the first trial. Upon the second trial, which we are now reviewing, the justice held, upon sufficient testimony, that the justice, who heard the proceeding in October, 1897, lost jurisdiction by reason of his failure to render his decision within eight days after the submission of the case for his consideration. The ground, therefore, upon which we rested the former reversal falls, and we are now called upon to determine the merits of the controversy. Barson was only a life tenant, and could not give a lease for a longer period than the termination of his own estate. The rent here claimed is for the month of December or two months after the death of Barson,
From a consideration of the whole case, we are of opinion that the final order should be affirmed, with costs.
Beekman, P. J., and Giegerich, J., concur.
Order affirmed, with costs.