62 How. Pr. 152 | N.Y. Sup. Ct. | 1881
— The proceedings were taken under the authority of chapter 583 of the Laws of 1873. The evidence given to support the allegations made by the relator very clearly show that the basement sublet by the lessee, McCarty, to Lampson as an under-tenant, was devoted to the business of a policy shop. That was not only established by the direct and positive statement of some of the witnesses, but in addition to that it appeared from what was stated to have been transacted there, and moreover it was not denied by the subtenant himself when he was examined as a witness upon the hearing. This may not have been an indictable offense under the law as it was constituted by the case of People agt. Jackson (3 Denio, 101), but still, if it was an unlawful business, it was within the terms of the act of 1873. That the business was unlawful and within the restraint of the statute prohibiting lotteries is plainly to be inferred from the manner in which it was transacted. According to the evidence of the witnesses who participated,in it, they purchased certain num
The business carried on in the apartment of the subtenant was an unlawful one under the statute (Hull agt. Ruggles, 56 N. Y., 424), and the proceeding was commenced after the tenant of the building had acquired knowledge of the unlawful nature of the business carried on by his under-tenant, and had made himself a party to it by substantially allowing its continuance for the ensuing period of three weeks. That was sufficient to make out the case, and, under the terms of the act of 1873, to entitle the relator to a warrant for the removal of these occupants from the premises. She had done nothing to deprive herself of the right created by the statute subject to which the lease of the property had been made by its owner. And the notice served by the tenant on his subtenant contemplating a subsequent period to which his tenancy might be continued) in no manner suspended or affected the right of the relator to terminate the lease and repossess herself of the premises. All that was required for that purpose was that the occupant and lessee of a part of the premises carried on an unlawful business in that part,, and that his lessor, who was the tenant and lessee of the entire'building, knew of that use, and made himself a party to it by permitting its continuance after he had acquired that knowledge.
These facts were established by the evidence, and the proceedings should not have been dismissed, but a warrant should have been issued to place the relator in possession. They must, therefore, be reversed, with costs to the relator.
Davis, Oh. J., and Beady, J., concur.