Davis v. Bonds — 61 Misc. 2d 917

Majority

p. 917

Charles Davis, Appellant, v. Charles Bonds et al., Respondents.

Supreme Court, Appellate Term, Second Department,

November 12, 1969.

Milton E. Jacobowitz for appellant. Bessie D. Goldberg for respondents.

In the absence of a judicial determination that the prime lease was terminated, or absent proof that the sub-lessor had abandoned the premises, it was improper to dismiss the sublessor’s nonpayment proceedings against the subtenants. (Bruder v. Geisler, 47 Misc. 370 [App. Term]; Bone v. Coppola, 45 Misc. 636 ; 34 N. Y. Jur., Landlord and Tenant, § 269.)

Upon a new trial there should be a fuller development of the proof with respect to the affirmative defense of cancellation. In this connection, the subtenants may be well advised to implead the prime landlord as a third-party defendant.

The judgment should be unanimously reversed, without costs, and a new trial ordered.

Groat, P. J., Schwartzwald and Margbtt, JJ., concur.

Judgment reversed, etc.

Cases cited

Bruder v. Geisler 47 Misc. 370 N.Y. App. Term p. 917
Bove v. Coppola 45 Misc. 636 N.Y. App. Term p. 917