22 Misc. 739 | N.Y. App. Term. | 1898
These proceedings were based upon the nonpayment, after demand, of a monthly installment of rent alleged to be due from the tenant-respondent to the landlord-appellant on the 1st day of Hovember, 1895, under a written lease.of the house and premises known as Ho. 294 Sixth avenue in the city of Hew York, made and executed by John L. Tonnele, as trustee under the
It is. claimed by the tenant-appellant that, from the month of August, 1897, to the hearing of these proceedings, the northerly wall of the basement was. largely cut away and the floor. and doors blocked with timber; that in consequence of this the under-tenant occupying the basement abandoned the same and the tenant-appellant was deprived of the use thereof; all of which .acts, it is further insisted, constitute an actual eviction from a part of the demised premises.
There was, however, testimony adduced upon the trial which warranted the justice in finding (as is assumed from the final order), that the acts complained of were done by the!' said contractor under the express sanction of the tenant-appellant and the tenant who occupied the basement. But the tenant-appellant contends, furthermore, that, even, if license to enter the demised premises was granted, it was the duty of the petitioner’s assignor, Mr. Siegel, to proceed with reasonable dispatch and to perform the job in a good and workmanlike manner and with as little injury and inconvenience as póssiblé to the tenant-appellant and the under-tenant. This undoubtedly would have been his duty had he, at the time, been the owner" of the adjoining premises and caused the excavation to be made, but the record, to my mind, fails to
The tenant-appellant also claims that said Gerson Siegel, and not the petitioner-respondent, was the landlord of the premises in question when the rent was demanded and the proceedings were brought; but this contention is not supported by the evidence, from which it appears, on the contrary, that the lease was assigned by Mr. Siegel to the petitioner-respondent, prior to the time before mentioned, by an instrument in writing dated September 30, 1895. The petitioner-respondent was, therefore, the real party in interest, and whether or not he was a “ dummy,” as claimed, is of no moment. Sheridan v. Mayor, 68 N. Y. 30; Curran v. Weiss, 6 Misc. Rep. 138.
"Upon the trial, the petitioner-respondent offered in evidence an assignment of the lease, dated February 10, 1891, executed by John L. Tonneli, as trustee under the will of John Tonneli, deceased, together with a certificate of acknowledgment. This was ■ objected to by the tenant-appellant on the ground that thirty seconds prior thereto the paper had not been acknowledged. Counsel for the petitioner-respondent thereupon stated that “ the paper was all complete with the exception of the notary affixing the signature. He is in court here and will testify that he took the acknowledgment early this morning.” The justice overruled the objection, the paper was admitted in evidence, and the tenant-appellant noted an exception. There is nothing in this objection; for the acknowledgment of the execution of a written instrument
It was not necessary, as claimed by the tenant-appellant, for him to attorn to the petitioner-respondent in order to have enabled the latter to maintain these proceedings. Sloane on Landlord & ..Tenant, 80. The written demands for the .payment of rent, which had become due on the 1st days of October and Hovember, 1897, respectively, and which were served upon the tenant-appellant on behalf of the petitioner-respondent, gave notice to him of the claim of the latter respecting the demised premises; and the fact that rent was due for the last-mentioned month of its nonpayment - was amply proven.
The tenant-appellant contends,, furthermore, that it appeared upon the trial, from the petitioner’s own showing, that the title to real property was', in question and was disputed by the tenant,, and hence that the complaint should have been dismissed pursuant to section 2956 of the Code of Civil Procedure. ■ The record fails to show that the tenant-appellant delivered to the justice an answer, or filed the undertaking required by section 2952, or that he claimed upon the trial that the title to real property was in question; but, even had he complied with all these prerequisites, the justice would hot have been ousted of jurisdiction, as the provisions of the Code, respecting the answer of title, are confined to actions and have no relation to summary proceedings. Matter of White, 12 Abb. N. C. 348; People ex rel. Baldwin v. Goldfogle, 23 Civ. Pro. 417. As was said by Mr. Justice O’Brien in the last cited case, “ The question in summary proceedings is, whether the relation of land-' lord and tenant exists. The question of title cannot arise, the one ' presented being as to the right to possession, and the decision simply determines who is entitled to the possession, and cannot in any way affect title to land.”-
Eor these reasons, to my mind, the final order appealed from, should be affirmed, with costs.
Beekmau, P. J., and G-ieoerioh, J., concur.
, Order affirmed, with costs.