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Dodd v. Hart

30 Misc. 459 Court N.Y. App. Term English

Delivered by Leventritt, J.

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p. 459
Adele Sturges Dodd, Respondent, v. Peter L. Hart, Appellant.
(Supreme Court, Appellate Term,
February, 1900.)

Headnote

Summary proceedings — Defense that landlord did not put tenant in possession of' the entire premises.
It is the duty of a lessee, and not that of his landlord, to eject one who, at the inception of the demise, is wrongfully holding over in a part of the demised premises, and hence, where rent is unpaid, it is not a defense to the lessee, in summary proceedings, that the latter has failed to put him in possession of the entire premises.
Appeal by the tenant from a final order in summary proceedings made in the Municipal Court of the city of Hew York, seventh district, borough of Manhattan;
William McArthur, for appellant.
Ho appearance for respondent.

The parties to this proceeding entered into a written lease by which the appellant acquired the right of possession of certain premises for a period of two years from the 1st day of May, 1899. Prior to that time one Harriet Bohm had been the tenant, and though her lease had expired, she was still in occupancy when the appellant moved in. By an agreement, made between her and the wife of the appellant, she retained two rooms for which she paid a stipulated consideration. The tenant, after having paid the full rent reserved for a period of three months, defaulted, whereupon these proceedings were instituted. The answer set out as a sole defense the failure of- the landlord to put him-in possession of the entire premises owing to the continued occupancy of Harriet Bohm, and, therefore, claimed a release from the covenant to pay rent.

We may accept the version of the appellant that the agreement, made by his wife, was without his knowledge, authority or concurrence, and disregard the strong evidence tending to establish a ratification by him. The duty to dispossess Harriet Bohm devolved on him, not on the landlord. If the appellant desired to repudiate the agreement, it was incumbent on him to oust her. He had the

p. 460
legal right of entry to the entire premises; the respondent was not obligated to place him in actual possession. The covenants of title and quiet enjoyment involve no warranty against the acts of strangers having no title, and the remedy of the lessee is to remove the person wrongfully holding over. Chaplin Landl. & Ten. 590; Gardner v. Keteltas, 3 Hill, 330 ; Mechanics & Traders’ Fire Insurance Co. v. Scott, 2 Hilt. 550; and see Goerl v. Damrauer, 27 Misc. Rep. 555 . It follows that the order was properly granted and should be affirmed.

Freedman, P. J., and MacLean, J., concur.

Order affirmed, with costs to respondent.

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