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Mahoney v. Hoffman

58 Misc. 217 Court N.Y. App. Term English

Delivered by *218 Bischoff, J.

Contents

Majority

p. 217
Dennis Mahoney, Landlord-Respondent, v. Adam Hoffman and Others, Tenants-Appellants.
(Supreme Court, Appellate Term,
March, 1908.)

Headnote

Landlord and tenant — Termination of relation — Dispossession by summary proceedings.
Former adjudication — Adjudication in particular actions or proceedings — Forcible entry and detainer.
A lease is terminated by the issuance of a warrant in summary proceedings to dispossess for nonpayment of rent although prior thereto the lease, in violation of covenant and without the landlord’s consent, has been assigned; and, where the assignee has not occupied the premises, all his rights are at an end.
That the assignee’s predecessor, who was in possession and was disturbed without being made a party to the summary proceedings, obtained a favorable order in forcible entry and detainer proceedings did not strengthen the assignee’s rights who took only such an interest as could pass by the assignment which was subject to immediate defeat by his assignor’s summary removal. The bare personal immunity of the assignee’s predecessor from disturbance while he remained in possession was not such an interest as passed by the assignment.
Appeal by the defendants from a final order in summary proceedings, awarding possession of the premises to the plaintiff, entered in the Municipal Court of the city of Hew York, second district, borough of The Bronx.
Guggenheimer, Untermyer & Marshall (Alvin Untermyer, of counsel), for appellants.
Heinzelman & Walker, for respondent.

The appellant was an “ intruder ” or “ squatter ” within the meaning of section 2232 of the Code of Civil Procedure (subd. 4), and the final order awarding possession of the premises to the respondent should be affirmed. A right of possession was claimed by this appellant through assignments of a lease from the respondent — the owner — to one Elliott; but, by a warrant in dispossess proceedings for nonpayment of rent, this lease was terminated before the appellant’s occupancy began; and whatever rights he took under the assignment — made without the landlord’s consent and in violation of a covenant of the lease — came to an end. Code Civ. Pro., § 2253. His paper title, or claim of title, did not protect him, because it amounted to nothing; and, notwithstanding the assertion of an entry under color of title, these proceedings were maintainable. O’Donnell v. McIntyre, 41 Hun, l00; revd., 16 Abb. N. C. 84 , cited for appellant; 3 McAdam Landl. & Ten. (3d ed.) 235.

There is nothing to indicate that this defendant’s assumed right of possession was in any way saved from the termination of the lease to Elliott. He (the defendant) was not in possession; and his-rights, if any, were subject to immediate defeat through the tenant’s summary removal. Rubenstein v. Rosenthal, 50 Misc. Rep. 313 . The fact that Buehler, a predecessor, who was in possession and was disturbed without being made a party to the dispossess proceedings, obtained a favorable order in forcible entry and detainer proceedings, does not strengthen the defendant’s rights, since there was no adjudication of title in Buehler, and the defendant came upon the premises, not as Buehler’s tenant with the same possession, but independently, as an assignee, who took only such an interest as could pass by assignment, which Buehler’s bare personal immunity from disturbance, while he remained in possession, was not.

The final order should be affirmed, with costs.

Gildeesleeve & MacLean¡ II., concur.

Final order affirmed, with costs.

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