In re Hosley — 30 N.Y. St. Rep. 711

Majority

p. 711

In the Matter of the Petition of Albert Hosley, Resp’t, for the Removal of John Mullins from certain premises, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed April 11, 1890.)

Headnote

Summary proceedings—Cannot be brought by agent or attorney in fact.

The petitioner was mortgagee of certain premises, and held a power of attorney from the owner to rent the same, and after paying taxes, insurance and repairs, to apply the surplus on the mortgage, or to sell for not less than the incumbrances. He let the premises to Mullins by a verbal agreement. Held, that petitioner acted only as the agent of the owner; that the relation of landlord and tenant did not exist between him and Mullins, and that he could not maintain summary proceedings.

Appeal from a final order made by the comity judge of Cattaraugus county, awarding to the petitioner the possession of certain premises described in the petition in summary proceedings by landlord against tenant to recover the possession of the demised premises for non-payment of rent.

Inman & Cole, for tenant, app’lt; Ansley & Davie, for petitioner, resp’t.

The only question arising on this appeal is whether the petitioner sustained to John Mullins, the tenant, the relation of landlord. If he did, the order made by the county judge is correct, and should be affirmed; if he did not, then clearly enough the wrong party called for the possession of the premises, and the same should have been withheld from him.

The petitioner, in the month of November, 1882, held a mortgage upon the premises in question for the sum of $1,700, upon which at the time of the beginning of these proceedings the sum of about $1,000 remained due and unpaid. The premises were owned at that time, as well as now, by a man by the name of Butterfuss, who had executed the above mentioned mortgage. In the year 1886, the owner gave to the respondent in this appeal a power of attorney, as follows: “ Know all men by these presents,

p. 712

that I, Jacob Butterfuss, of the town of Salamanca, county of Cattaraugus, and state of New York, have made, constituted and appointed, and by these presents do make, constitute and appoint Albert Hosley my true and lawful attorney, for me and in my name, place and stead, for the purpose of renting for me my dwelling house situate on the south side of Church street in the village of Salamanca, N. Y., and for the purpose of collecting the rents accruing thereon ; that he should' use and apply such rents, first, in paying the taxes and insurance upon said property and other necessary expenses of keeping same in a tenantable condition, and theosurplus shall by him be applied on real estate mortgage now held by said Hosley on said property; also for the further purpose of selling and conveying said property for a sum not less than the incumbrance thereon ; giving and granting unto him, etc.,” concluding in the usual form.

This was a power of attorney by the owner to Hosley, and j nothing more. The paper writing did not put the attorney in possession of the premises as mortgagee under which he could claim the rights of mortgagee in possession; it gave him the power to rent for the landlord and in the name of the landlord and for his benefit, the property in question. The right to use the surplus, after paying taxes, etc., was specifically defined, namely, its application upon the mortgage held by the attorney against the true owner.

The petitioner, however, has proceeded upon the assumption that this paper made him the landlord, and that when he verbally let the premises to the appellant the relation of landlord and tenant began to exist between him and the appellant. In this we think he is mistaken.

In order to maintain summary proceedings for the recovery of the possession of real property, under § 2231, et seq. of the Code of Civ. Pro., the technical relation of landlord and tenant must exist. The People v. Simpson, 28 N. Y., 55 .

The tenant dealt with the attorney on the assumption that he was obtaining the premises under a lease from the true owner Butterfuss, under a contract with Hosley as agent. Under these circumstances, it matters not whether the power of attorney contained an assignment of the accruing rents for the purpose of extinguishing the mortgage or not. For the question before us is not whether the mortgagee can, by any proceeding, compel the application of the rents upon this indebtedness, but it is rather the simple question: who is the proper party to institute summary proceedings for the possession of real property for the non-payment of rent? Under the authority cited and in the language of the provisions of the Code referred to above, and under the contract as disclosed by these papers, the person to institute such proceedings was the owner himself, and not the agent or attorney in fact

It follows, therefore,, that the order appealed from should be reversed, with costs.

Dwight, P. J., and Corlett, J., concur.