Gallagher v. Reilly — 31 N.Y. St. Rep. 556

Majority

p. 556

Patrick Gallagher, Resp’t, v. Charles Reilly, App’lt.

(New York Common Pleas, General Term,

Filed June 2, 1890.)

Headnote

Lease—Cancellation of by summary proceedings.

Where the tenant surrenders the premises in pursuance of a final order in summary proceedings, the lease is thereby cancelled, even though no warrant has been issued. In such case the issuance of a warrant is-unnecessary.

Appeal from judgment of the ninth district court.

JE. T Bice, for app’lt; J. Vincent, for resp’t.

This was an action to recover for one month’s rent of house Ho. 81 Bast One Hundred and sixteenth street. According to plaintiff’s testimony it was an oral hiring for eighteen months from October, 1888. A written lease was prepared, but was not shown to defendant until he demanded it, when he objected to the proposed lease and it was not executed. Subse

p. 557

quently a dispute arose between the plaintiff and defendant as to the amount then due.

The action might have been maintained for the rent, but the plaintiff caused a precept to be issued and served upon defendant, requiring him, “ forthwith to remove from the premises or show cause (before the court below), May 21st, 1889, why possession of said premises should not be delivered to the plaintiff.”

An answer was filed to the petition, and the cause was set down for trial The defendant afterwards withdrew his answer,, and thereupon final order was made awarding to petitioner possession of the property in question. The defendant without waiting for the issuance of a warrant moved from the premises May 27th, and sent the keys of the house to the plaintiff.

The court below held the plaintiff could not recover rent for the month of June, and under all the circumstances of the case I think such adjudication was correct. The hiring of the premises, under the authority of Prial v. Entwistle, 10 Daly, 398 , was from month to month. Thomas v. Nelson, 69 N. Y., 121 .

After the final order of the justice awarding -possession of the premises to the plaintiff in the summary proceeding, it was the plaintiff’s duty and right to surrender the premises and not wait until dispossessed by warrant. McAdam on Landlord and Tenant, 2d ed., 653 ; People v. Kelsey, 14 Abb. Pr., 378 . Such final order, which was in effect a judgment, may be satisfied with compliance with its requirements on the part of the tenant, as well as by the issuing of a warrant, and cancels the agreement between the parties. Section 2253 of the Code should not be restricted in its application. The lease maybe cancelled by the agreement of the parties, or by surrender of the premises when required to do so by order of the court.

I think it a fair interpretation of the statute that when it becomes necessary to issue a warrant for the removal of a tenant, then the issuance of such warrant cancels the agreement. If while the warrant was unexecuted the tenant had remained in possession, a different state of facts would have been presented. Powers v. Carpenter, 15 Weekly Dig., 155; Boehm v. Rich, 13 Daly, 62 .

As the defendant surrendered the premises under the final order, the landlord thus secured the precise remedy which he sought when he procured and served the precept. In such a case the issuance of a warrant was unnecessary and useless, for the plaintiff had obtained all that he sought in the summary proceedings. It appears that the tenant has already left. The landlord was entitled to full possession of his premises. To issue a warrant in such a' case as before stated would be useless and a nullity, inasmuch as it would be the enforcement of an order which had already been complied with

The judgment of the court below should be affirmed; with costs.

Bookstaver, J., concurs.