Roedmann v. Hertel — 78 Misc. 55

Majority

p. 55

Sophie R. C. Roedmann, Appellant, v. Philip Hertel, Respondent.

(Supreme Court, Appellate Term, Second Department,

October, 1912.)

Headnote

Municipal Courts — equitable jurisdiction — summary proceedings. Landlord and tenant — lease — summary proceedings.

Municipal Courts have no equitable jurisdiction, except in the matter of equitable defenses, to dispossess proceedings.

Where the day after an unsigned lease was given to defendant, he paid a deposit and received a receipt reciting a five-year lease, and entered into possession and made permanent improvements, the grantee of the premises under a deed reciting said lease takes the title subject to all equities, and cannot maintain summary proceedings to dispossess the defendant upon a claim that there could be no such lease as it was not in writing signed by the party to be bound thereby.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York rendered in favor of defendant.

Jacob H. Denenholz, for appellant.

Benjamin Kohn, for respondent.

This is a summary proceeding which was dismissed in the Municipal Court and the landlord appeals.

The defendant claims to have a lease for five years, or until 1915. A formal lease was prepared by the former owners and given to him unsigned. The next day he paid a deposit and received a receipt reciting a five years’ lease. The plaintiff purchased the property and received a deed reciting a five years’ lease to the defendant, but now claims there can be no such lease as it is not in writing signed by the party to be bound thereby. The plaintiff took title subject to all equities as the tenant was in possession and the deed recited the supposed lease.

That a court of equity would afford the defendant relief

p. 56

and compel specific performance by requiring the plaintiff or his grantors to execute a lease is quite certain. The defendant entered into possession and spent considerable money in permanent improvements.

While sections 242 and 259 of the Real Property Law require leases and contracts for leases to be in writing, section 270 preserves to equity the power to require specific performance of agreements in case of part performance.,

Muucipal Courts have no equitable jurisdiction except in this one instance — equitable "defenses — to dispossess proceedings. Section 2 of the Municipal Court Act permits a defendant to set up an equitable defense to summary proceedings. Rodgers v. Earle, 5 Misc. Rep. 164 .

The judgment of dismissal is affirmed.

Aspinall and Putnam, JJ., concur.

Judgment affirmed.

Cases cited

Rodgers v. Earle 5 Misc. Rep. 164 N.Y. Super. Ct. p. 56