Fifth Avenue Shop, Inc. v. Fox-Stiefel Co. — 83 Misc. 127

Majority

p. 127

Fifth Avenue Shop, Incorporated, Respondent, v. Fox-Stiefel Company, Appellant.

(Supreme Court, Appellate Term, First Department,

December, 1913.)

Headnote

Summary proceedings — right to institute, dependent on existence of conventional relation of landlord and tenant — assignment of lease by subtenant — when final order to remove a hold-over tenant, awarding possession will be reversed.

The right to institute summary proceedings is dependent on the existence of the conventional relation of landlord and tenant between the parties.

Where the subtenant of certain premises assigned its lease to defendant who assigned it to plaintiff for the remainder of the term, and at the same time plaintiff and defendant entered into

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a collateral agreement that after a certain date plaintiff should be considered the landlord and defendant the tenant, and on said date defendant refused to vacate the premises as required by the assignment of its lease and the collateral agreement, a final order in summary proceedings to remove defendant as a hold-over tenant, awarding plaintiff possession of the premises, will be reversed, the proceedings dismissed with costs and defendant restored to possession of the premises.

Appeal by the tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, awarding possession of the premises to the landlord.

Jacoby, Scharps & Raffel (Oswald N. Jacoby, of counsel), for appellant.

Krakower & Peters (Charles C. Peters, of counsel), for respondent.

In 1903 Astor, Chandler and others leased a building to one Korn for twenty-one years. In 1905 Korn leased to Billings & Sons a portion of the demised premises for the remainder of the term. In .1909 Billings & Sons leased the demised premises to Phillips, Stiefel & Fox. Phillips, Stiefel & Fox assigned their lease to the Fox-Stiefel Company. In July, 1913, Fox-Stiefel Company assigned its lease to the Fifth Avenue Shop, Incorporated, for the remainder of the term from August 1, 1913, and at the same time the parties to this proceeding, the Fifth Avenue Shop, Incorporated, and Fox-Stiefel Company, entered into a collateral agreement wherein it was provided that after August 1, 1913, the Fifth Avenue Shop, Incorporated, should be considered as the landlord and the Fox-Stiefel Company the tenant. On August 1, 1913, the Fox-Stiefel Company refused to

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vacate the premises as required under the assignment of the lease which it had made and by the terms of the collateral agreement which had been entered into. Thereupon the Fifth Avenue Shop, Incorporated, instituted summary proceedings to remove the Fox-Stiefel Company as a hold-over tenant. On August 16, 1913, a final order was made in favor of the Fifth Avenue Shop, Incorporated, awarding it possession of the premises and directing that a warrant issue for the removal of the Fox-Stiefel Company, and directing that the Fifth Avenue Shop, Incorporated, be put into possession. The Fifth Avenue Shop is now in possession.

The right to institute summary proceedings is dependent upon the existence of the conventional relation of landlord and tenant between the parties. The Fifth Avenue Shop, Incorporated, was not the landlord of the Fox-Stiefel Company, but on the contrary the Fox-Stiefel Company had assigned the lease to the Fifth Avenue Shop, Incorporated. Except for the collateral agreement entered into between the parties on July 19, 1913, it is clear that the conventional relation did not exist between the parties. ,

The question to be determined, therefore, is whether the parties by this agreement could lawfully confer upon the Fifth Avenue Shop, Incorporated, the rights and remedies of a landlord so that it might institute summary proceedings against its assignor. The. jurisdiction of the court cannot be invoked on the strength of the collateral agreement of July 19, 1913. In the absence of this agreement there is no doubt that the Fifth Avenue Shop, Incorporated, could not maintain this proceeding.

It follows that the order appealed from should be reversed, with costs, and the proceedings dismissed, with costs, and the Fox-Stiefel Company restored to

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the possession of the premises from which it was unlawfully dispossessed.

Guy and Bijur, JJ., concur.

Order reversed, with costs, and proceedings dismissed, with costs.