Palmieri v. Antinozzi

The action is plainly the ordinary common-law action for ejectment, and not, as counsel for defendants designates it, a “summary proceeding” to recover the possession of land, which is purely statutory. Hence so much of counsel’s brief as aims to show that the facts do not authorize the relief asked for by the plaintiff, that summary proceedings do not lie for a mere breach of the lessee’s covenant, and that such proceedings cannot be authorized by agreement of the parties to the lease for a case not within the statute, is wholly irrelevant.

Notice, before suit, of the lessor’s intention to re-enter is required in a case where the lease reserves a right of re-entry for the lessee’s “default of a sufficiency of goods and chattels whereon to distrain for satisfaction of rent due” (Laws 1846, p. 369, c. 274; Code Civ. Proc. § 1505), or where the lease provides for such a notice. It is not required where the lease has come to an end and the lessor has become reinstated in his right to possession of the demised premises by the agreement of the parties upon the happening of a particular event, as here, the lessee’s failure to comply with the orders of the tenement house department. Newell Eject. 187, § 21; Allen v. Jaquish, 21 Wend. 628 ; Jackson ex dem. Van Alen v. Rogers, 2 Caines Cas. 314 . The mere breach of a covenant, it is conceded, does not authorize ejectment, but the reservation to the lessor of a right of re-entry for such a breach does. Wood, Land. & Ten. § 402, and cases in note.’

The argument of the defendants’ counsel that since the tenement house department, as a separate and distinct division of municipal authority, had not been called into existence at the time the lease was entered into, the lessee’s covenant to obey “all orders from * * * any and all other municipal departments of the city of New York” cannot fairly and reasonably be construed to extend to the orders of the particular department, is obviously unsound. The language is sufficiently comprehensive to include a subsequently created division of municipal authority, and it cannot reasonably be maintained that, when the parties thereto entered into the lease, they contemplated that there would be no change in the charter of the city whereby the authority of one department of government would be transferred to another, or to one of entirely new creation. Post v. Kearney, 2 N. Y. 394 , 51 Am. Dec. 303 . Neither is there any merit in the contention that, because the defendant lessee’s covenant to obey the orders of the several departments of the municipal government affecting the demised premises also provided for the payment of indemnity by her to the lessor for any loss which should be occasioned to him because

Upon the facts admitted by the pleadings and proved on the trial, therefore, there must be judgment for the plaintiff, with costs.

I note the request of the defendants’ counsel for a stay of execution of the judgment in the event of an adverse decision, but I incline to the view that it should not be granted. The plaintiff is bound to carry the orders of the tenement house department, issued in the furtherance of the public health, into effect, and is entitled for such purpose to enter upon the premises wholly aside from his right to maintain this action. Barnum v. Fitzpatrick. (Com. P1.) 16 N. Y. Supp. 934 , reversing 87 Abb. N. C. 334 , cited by defendants’ counsel; Sulzbacher v. Dickie, 51 How. Prac. 500, 518; 18 Am. & Eng. Encyc. of Daw (8d Ed.) 449. It appears that he has already incurred three distinct penalties for his neglect and the effect of stay of execution could only be to involve him in further penalties for enforced disobedience, besides continuing a condition which the properly constituted authority has denounced as a menace to the public health.

Judgment for plaintiff, with costs.