Phelan v. Brady — 16 N.Y. St. Rep. 942

Majority

p. 942

James J. Phelan, App’lt, v. Margaret Brady, Impleaded, etc., Resp’t.

(Supreme Court, Qenerral Term, First Department,

Filed June 19, 1888.)

Headnote

Tenement house property—Open and visible possession—How proved —Not necessary to prove posting op notice required by Laws 1882 chap. 410, § 657. '

In order to establish the open and visible possession of tenement house property in the city of New York it is not necessary to prove that the name of the owner was publicly posted on the premises as required by Laws 1882, chap. 410, § 657.

Appeal from special term judgment dismissing the complaint upon the merits. This action is brought to foreclose a mortgage for $2,000, made by defendant, Murphy, July 23, 1886, dated on that day and recorded July 24, 1886, on a house and lot in New York city. The only defendant who appeared or answered was the defendant, Margaret Brady. She, in her answer, denied that her interest was subsequent, etc., to the lien on the plaintiff’s mortgage, and alleged that prior to such mortgage, and on or about May 5, 1861, she became the absolute owner in fee of the mortgaged premises, and on or about the same day she, as such owner, took possession of said premises, claiming to own and owning the same, and has since continued in actual, open, continuous and notorious possession and occupation of said premises as the owner thereof, etc., and that plaintiff at the time and making of said bond and mortgage had notice of her claim.

The premises in question are a double tenement house, one of a row of three, built on the same plan, five stories high, and above the first story, with four families on a floor, occupying from two to three rooms each. The several apartments have numbers. The three-room apartments correspond with each other, and so do the two-room apartments. No family occupies more than three rooms. The rent for each apartment was nine to eleven dollars a month. In few of such tenement houses do owners live. This house was constructed so as to adapt it to the use of a number of families and not otherwise. There are two stores on the first floor of the building, one on each side of the entrance. For six years prior to May 1, 1886, Mrs. Brady, defendant, or her husband, had occupied one of the stores of the third owner, Mrs. Trimble, and paid rent the same as other tenants, and they had the living rooms in the rear of the store. The store and living rooms on the opposite side of the hall were similarly occupied by a tenant. On or about May 1, 1886, the defendants, Brady, changed their living rooms from the rear of their store to the second

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story, “three rooms front,” and have since remained in their new quarters. They still keep the store._

There were in May, 1886, eighteen families in the house. On May 7, 1888, Mary S. Trimble, then the owner of the premises, conveyed the same to the defendant, John E. Murphy, by a full, covenant and warranty deed, dated May 1, 1886, acknowledged same day and recorded May 7, 1886.

About July 1, 1886, plaintiff was applied to by a broker (a friend of his, Mr. Smyth) for a mortgage loan of $2,000 on the premises described in the complaint. Plaintiff inquired of his friend, the broker, as to the character of Murphy (the proposed mortgagor), and was told by the broker that he had known the Murphys for seventeen years. Plaintiff then employed a lawyer to examine the title. Plaintiff went to the premises and examined the building, and saw that it was occupied by several families in a manner usual to such buildings. Plaintiff had had dealings with that kind of property, and was familiar with their use and occupancy. He had no information, belief or suspicion that Murphy was not the real, absolute owner. The examination of title by his attorney showed a perfect record title in John E. Murphy.

On July 23, 1888, said John E. Murphy having a complete record title, executed to the plaintiff the bond and mortgage in suit, and the plaintiff then loaned his money thereon.

N. B. Hoxie, for app’t; Wyatt & Trimble, for resp’t.

This action was brought to foreclose a mortgage made by one John E. Murphy to the plaintiff. It was successfully defended by Mrs. Margaret Brady, as the owner of the morgaged premises, in actual visible and exclusive possion thereof, under a prior unrecorded deed from the said John E. Murphy, at the time the mortgage in suit was given.

Although the case is a hard one for the appellant, the re-result reached at the special term seems to have been right, and the_ reasons assigned by the learned trial judge for his conclusions appear ts us quite sufficient. There is -only one matter in regard to which we deem it necessary to add anything to what he has said, and that is in reference to a point not made in the court below, but suggested for the first time on the argument of this appeal.

The mortgaged property was an apartment house occupied by many tenants. At the time of the transaction in controversy, section 657 of the Hew York City. Consolidation Act (Laws of 1882, chap. 410), contained the following provision: “ Every tenement or lodging-house shall have legibly posted or painted on the wall or door in the entry-or some public accessible place the name and address of the owner or own

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ers, and of the agent or agents, of any one having charge of the renting and collecting of the rents of the same; and service of any papers required by this title, or by any proceedings to enforce any of its provisions, or of the acts relating to the board of health, shall be sufficient if made upon the person or persons so designated as owner or owners, agent or agents.”

The learned counsel for the appellant, as we understand his brief, thinks that in order to make Mrs. Brady’s possession sufficiently open and visible to defeat the plaintiff’s claim, it was essential for her to post her name and address on the premises as prescribed in this section. We cannot concur in this view. Evidence as to the presence or absence of the required notice would have been proper and material, although none appears to have been given; but its absence, even if proved, would not be conclusive against the owner in such a case as this. The statutory provision relied upon is contained in the chapter of the Consolidation Act relating to the department of health, and in the title thereof relating to tenement and lodging houses. Its purpose, and manifestly its only purpose, was to facilitate the board of health in the proper administration of its duties; and it would be giving to the section an effect which the legislature neither intended nor contemplated, to hold that the open and visible possession of tenement-house property in the city of New York could not be established without proving that his name was publicly posted on the premises.

The judgment should be affirmed with costs.

Van Brunt, P. J./and Macomber, J., concur.