Ash v. Purnell — 32 N.Y. St. Rep. 306

Majority

p. 306

Mangus Ash, App’lt, v. James E. Purnell et al., Resp’ts.

(New York Common Pleas, General Term

Filed June 2, 1890.)

Headnote

1., Summary proceedings — Petition.

Under § 2235 of the Code the petition in summary proceedings need not name the defendants; it is sufficient if the persons against whom the proceeding is instituted are intelligibly described therein; hence the phrase “John Doe and Richard Roe, under-tenants,” is a sufficient compliance with the statute to bind the parties.

2. Same — Warrant.

The warrant is issued when made out by the justice and by-' him de livered to the clerk ready for use.

3. Lease — Cancellation by summary proceedings.

Where the tenant moves out in compliance with the command of the precept before the return day, or after final order in summary proceed ings, in either case the lease is terminated and cancelled without issuing o: a warrant.

p. 307

Appeal from a judgment rendered in the district court of the-city of New York for the eleventh judicial district, dismissing the complaint

Alexander & Ash, for app’lt; Marbury & Fox, for resp’ts.

This action was brought by the plaintiff tereco ver rent for the months of November and December, 1889, of two rooms in the building No. 61 West Fourteenth street in this city. The entire premises were under lease to the firm of Anderson & Blatt, who sublet a portion to the plaintiff, and of his part the plaintiff sublet the two rooms in question to the defendant. Anderson & Blatt were in arrear for rent, and for this reason, on the 12th of October, 1889, the landlord commenced summary-proceedings in the sixth district court against them and their under-tenants to recover possession of the entire premises. The precept was issued on that day and made returnable on the lath of October, 1889. A copy of this'was served on Anderson and Blatt personally, and another copy was affixed in a conspicuous place on the premises of the plaintiff and defendants, and another copy was handed to the defendant Purnell personally. Both the plaintiff and the defendants in the petition and precept were described as “John Doe and Bichard Boe, under-tenants,” whose true Christian names were unknown to the landlord. Upon' the return day, no cause being shown, the justice made his final order, ¡awarding to the landlord the delivery of possession of the premises, and on the same day the justice signed a warrant directed to the sheriff or to any constable or marshal of the city of New York, describing the property and commanding the officer to remove the tenants and under-tenants from the premises and to rout the landlord in the full possession thereof, which was on the tame day delivered to the clerk of- the sixth district court, where It has ever since remained. .On the trial it was admitted that the plaintiff was the sub-tenant of Anderson & Blatt, and it was proved that the defendants were sub-tenants of the former. It Ivas not claimed that the defendants had occupied the premises lor any part of November and December, 1889, to receive the rent for which months this action was brought. They had moved put some time in the month of October.

I The defendants introduced in evidence under plaintiff’s objeclion the summary proceedings above set forth, and claimed that by leason thereof the relation of landlord and tenant as between the parties to this action was annulled, the lease cancelled, and the Blaintiff could not recover.

I The justice so decided and dismissed the complaint

I The plaintiff claimed that as neither of the parties to this action ■rere made parties to the proceedings, they were not bound by ■hem, and that the justice had no jurisdiction to issue any warrant Bn- their removal, and the lease was not cancelled. This contenlon is based on the fact that in the landlord’s petition the names If Alexander & Blatt were inserted as tenants, but the parties to liis action were designated as “ John Doe and Bichard Boe, underBmants,” and it was not averred they were fictitious names used

p. 308

in ignorance of the true names. This court has held that such averment must be made in actions, Gardner v. Kraft, 52 How., 499 , and it doubtless should be done in all proceedings where fictitious names are used in ignorance of true names, or there will be danger of rendering the proceeding void. But the Code, § 2235, regulating the contents of the applicant’s petition for a precept, -only requires the “ naming or otherwise intelligibly desisgnating the person or persons against whom the special proceeding is instituted, and if there are two or more such persons, and some are under-tenants or assigns, specifying who are principals or tenants and who are under-tenants or assigns.” This provision does not require any name to be used in the petition; it is sufficient that the persons against whom the proceeding is instituted are intelligibly designated therein, and under the circumstances of the case, we think the phrase “ John Doe and Richard Roe, under-tenants, used in the petition was a sufficient compliance with the statute as to the parties to this action. •

The fact that the names John Doe and Richard Roe were fictitious was stated in the precept, and there is no claim that any one was misled by not stating that fact in the petition. There is no pretence that the parties interested did not know for whom the precept was intended. Indeed the defendants who were designated as “John Doe and Richard Roe, under tenants,” moved out of the premises in consequence of the proceedings founded on this petition. We, therefore, think the justice obtained jurisdiction oi the parties to this action. The case of Croft v. King, 8 Daly, 265 is not in conflict with this opinion, as in that case the under tenant was neither named or designated in the proceedings.

The question then remains whether the relation of landlord anc tenant, as between the plaintiff and defendants, was annulled, anc the lease cancelled, by the summary proceedings. In Boehm v. Rich, 13 Daly, 62 , this court held that where the landlord sues ou a precept commanding the tenant forthwith to remove from the premises or show cause before the justice at a time fixed in the precept why the premises should not be delivered up to the land lord, and the tenant complied with the precept and removed as h< is commanded to do, it is a surrender and acceptance of the prem ises, and that no rent can become due thereafter on the lease. Anc we think this clearly right, for the further continuation of th proceeding by the landlord is unnecessary, as he gets just what h asked for and brought proceeding to compel. In Brown v. The Mayor, 66 N. Y., 385 (at page 391), the court of appeals in speak ing of summary proceedings, said: “ If the person proceeds' against obeys the summons and removes from the premises befon the return day, he can appear on that day and show the fact o: his removal, and then no warrant can be issued. * * * If h

does not appear at all, he admits the allegations contained in th' affidavit, and the magistrate is bound to render judgment and issu his warrant against the tenant and other persons in possession o claiming possession.”

■ In case the tenant moves out in compliance with the commam of the precept before the return clay, the testimony is terminate'

p. 309

iy the act of the parties, although no warrant can issue at any ,ime. So too, after final order, which we think is in effect a judgnent, and the only one which can be rendered in such case, may )e satisfied by a voluntary compliance with its requirements on he part of the tenant just as effectively as if the warrant had )een issued, and in fact it is his duty to go out without waiting o be dispossessed under the warrant. In both cases the lease s terminated or cancelled without issuing of the warrant.

In Gallagher v. Reilly, which will be announced at this ;eneral term, 31 N. Y. State Rep., 556, the learned chief judge, by ,n entirely independent investigation, has arrived at the same onclusion.

If the lease between the landlord and principal tenant is termilated or cancelled in either of these two ways, there is no foundtion on which the right of the sub-tenants to remain in posses-ion can rest; they would at any time be subject to removal by he landlord on taking proper proceedings for that purpose.

But it may be asked, what then is the meaning of § 2253 of the 'ode, which says: “ The issuing of the warrant for the removal f a tenant from the demised premises cancels the agreement for he use of the premises * * * and annuls accordingly the dation of landlord and tenant? ” The answer is obvious. The action is meant to apply to cases where the tenant does not move ut; in such case the issuing of the warrant cancels the agreeíent and annuls the relation of landlord and tenant. But it was ot intended to restrict the cancellation of a lease to that one íethod.

In this case neither the tenants nor sub-tenants went out before íe return day of the precept, nor did they appear before the jusce on that day. He was then “bound to render judgment and sue his warrant.” The former of these he did by endorsing the nal order on the papers, and on the same day he signed the war-mt and delivered it to the clerk of his court, who was its proper istodian until called for. With this act the justice’s jurisaicon over the proceeding terminated. After the expiration of the me limited by law to do this, he had no further power over it id could not even amend the final order or the warrant Carentier v. Willet, 6 Bos., 25 ; aff’d 1 Abb. Ct. App. Dec., 312 .

It was no part of his duty to deliver the warrant to the officer ho was to execute it. He had done his whole official duty when ; delivered the final order and warrant to the clerk, and he heme incapacitated tlie next moment; any officer authorized to :ecute such warrants could have done so. We think, therefore, at the warrant had been issued within the meaning of §§ 2251, ¡53, and consequently, defendant’s lease was cancelled, and the cisión of the j ustice dismissing the complaint was right.

The plaintiff’s counsel, in his argument, does not distinguish tween a judicial and a merely ministerial act. Of the latter iss is the issuing, of an execution, an attachment, a summons d the like, in which case the process is not issued until deliv?d to the proper officer for execution; to the former belong the

p. 310

issuing of a bench warrant by a magistrate, .the issuing of a citation by a surrogate, etc., and the issuing of a warrant in summary proceedings, in which case the paper is issued when delivered tc the clerk ready for use.

The contention that the issuing of a warrant only cancels the lease between the landlord and his immediate tenant, and does noi affect leases between sub-tenants, is in the teeth of the warran provided for in § 2251 of the Code, for that says it shall command the officer “ to remove all persons ” from the premises, which, i done, would most effectually terminate any lease between sub tenants. As before shown, it is the tenant’s duty not to wait fo: this, but to go out voluntarily; which defendants did in this case

Had the defendants remained in possession of the premise; leased by them for any part of the months to recover the rent o which this action was brought, they would have been liable t< pay rent for the time they stayed.

The judgment should, therefore, be affirmed, with costs.

Larremore, Ch. J., concurs.