Rockaway Point Co. v. Friberg — 199 A.D. 242

Majority

p. 242

Rockaway Point Company, Inc., Respondent, v. Sophie Friberg and John Doe, said name “ John Doe ” Being Fictitious, etc., Appellants. (Action No. 2.)

Second Department,

December 16, 1921.

Headnote

'See head note in Rockaway Point Co., Inc., v. Friberg No. 1 (ante, p. 239).

Appeal by the defendants, Sophie Friberg and another, from a final order of the County Court of the county of Queens, made in summary proceedings to dispossess, and entered in the office of the clerk of the county of Queens on the 28th day of June, 1921, awarding to the landlord possession of the property in question, and also from an order entered in said clerk’s office on or about the same day denying defendants’ motion to set aside the verdict and for a new trial made upon the minutes.

The final order awarded delivery of possession of premises

p. 243

at 39 East Center street, Rockaway Point, Queens county, “ with the appurtenances and improvements.” The petition, answer and precept are similar to those in Rockaway Point Co., Inc., v. Friberg, No. 1 ( 199 App. Div. 239 ).

In. this cause the learned trial court directed a verdict for the landlord.

Almet F. Jenks [Gustavus A. Rogers with him on the brief], for the appellants.

Meier Steinbrink [Frank E. Johnson, Jr., with him on the brief], for the respondent.

The undertenant actually claiming occupancy was John Joseph Wilson, whose regular home was at 566 Vanderbilt avenue, Brooklyn. He had a sublease from May 1, 1919, and apparently some furniture in the demised premises on May 1, 1921. He claims that in February, 1921, he had arranged for another term after May 1, 1921, with no written or binding privilege after October first.

Therefore in essentials this cause is not distinguishable from Rockaway Point Co., Inc., v. Friberg, No. 1 (supra). The undertenant’s appeal should be dismissed on the ground that after October first his legal rights have ceased, so that his appeal then became academic; and the final order affirmed as to Mrs. Friberg, on the grounds stated in the main cause, Rockaway Point Co., Inc., v. Friberg, No. 1 (supra), with costs. Such dismissal and affirmance to be with a single bill of costs.

Present — Blackmar, P. J., Mills, Putnam, Kelly and Jay cox, JJ.

Final order of the County Court of Queens county as to appellant Sophie Friberg unanimously affirmed, with costs; and the appeal of the undertenant is dismissed, with a single bill of costs to the landlord, respondent.