60 How. Pr. 444 | NY | 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *289
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *291
Section 28, article 2, title 10, chapter 8, part 3 of the Revised Statutes (vol. 2, p. 512), provides that any tenant of premises may be removed therefrom, if they lie in the City of New York, by any justice of the Marine Court. The statutes, in subsequent sections, prescribe the manner in which the removal may be made. There is no question in this case but that the proceedings had before Justice McADAM were formally in accordance with the statute. The defendant in them, Virginia Herring, was the tenant of the premises, and they lay in New York city. So far, it seems that the justice of the Marine Court had jurisdiction. But the 28th section (supra), in four subdivisions, limits the general character of its first declaration, and therein designates the particular cases in which the power to remove may be exercised. The case in hand, if it meets either of those, meets the fourth. That is for the case of a person holding over and continuing in possession of real estate which shall have been sold by virtue of an execution against such person, after a title under such sale shall have been perfected. In the case before us there has been a sale of the premises of which Herring is in possession; the sale was by virtue of an execution; and the title under the sale has been perfected. The execution, however, *293
was not against her. She is not, literally, the person against whom the execution was issued. If the provisions of the fourth subdivision are to be strictly applied, she is not amenable to them. There have been, however, judicial interpretations of it which have declared that it may be applied liberally. Thus it has been held that the proceedings may be had against the tenant of the person against whom the execution issued (Birdsall v.Phillips, 17 Wend. 464.); that the conventional relation of landlord and tenant need not exist between the purchaser at the sheriff's sale and the occupant of the premises, arising from a lease or compact between them; that the purchaser takes all the rights of the landlord; that there does thereupon arise between the purchaser and the tenant the relation of landlord and tenant; that the statute does not mean a holding over by his own personal act, but that if he do it by agent, servant or tenant at will, he may equally be said to hold over; that the statute is equally applicable to the judgment debtor and all who hold under him under pretense of title acquired posterior to the judgment. InHallenbeck v. Garner (20 Wend. 22) the authority of 17 Wend. (supra) is recognized, and that a servant or agent, or one entering upon the premises under title derived subsequent to the lien of the judgment under which the sale has been made, is amenable to the statute. And in Spraker v. Cook (
We perceive that the interest in real estate affected by the proceedings is a leasehold for a term of years. Such an interest was at common law personal property, but the statutes of this State have for some purposes modified its character. Estates for years are by those statutes denominated estates in lands. They are still chattels real, and are not classed as real estate in the chapter of the Revised Statutes, of "Title to Property by Descent." A judgment binds and is a charge upon the chattels real of every person against whom the judgment is rendered. We will not say, that estates for years in the hands of executors are thus bound and charged, when they have acquired them as the property of their testator, though the judgment be against the executors. For leases for years of a decedent go to his executor or administrator, as assets for distribution, and vest in him as part of the decedent's personal property. (Despard v.Churchill,
This order, made by the same court which had appointed the receiver, justified the levy upon this leasehold estate; and when the levy was after that made, established it as a binding charge upon that estate, as fully as the judgment could have been had it been rendered against the testator. It did more than that; in effect, it made it an execution, not only against the defendants named in the judgment, but against the receiver also. He was by the operation of the order, though not in terms, yet in substance, the person against whom the execution was issued. The levy and sale under it, and the perfecting of the sale, took place before the lease by the receiver to Herring. Thus her possession was taken under a title that was subordinate to, or extinguished by, the judgment, execution and order, sale and deed. We see no reason why the facts do not bring the case within the principle of the adjudications that we have cited. If so, the justice of the Marine Court had jurisdiction of the subject-matter, of the persons and of the case, and should not have been prohibited from exercising it.
The judgment appealed from should be reversed.
All concur.
Judgment reversed.