Witty v. Acton — 35 N.Y. St. Rep. 949

Majority

p. 949

Mary E. Witty, App’lt, v. Thomas C. Acton and Alphonso S. Sherwood, Resp’ts.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Summary proceedings—Redemption.

A tenant removed for non-p'ayment of taxes and assessments is not entitled to redeem by a tender thereof. Section 2256 of the Code does not ap- ' ply to such a case.

Appeal from a final judgment dismissing the complaint entered on an interlocutory judgment.

For opinion at special term see 29 E. Y. State Rep., 653.

J. Sabine Smith, for app’lt; George Bliss, for resp’ts.

The question presented by this appeal is, whether a lessee removed from the demise as a tenant holding over without the permission of the landlord after a default in the payment of the rent due pursuant to the agreement under which the demised premises are held and a demand thereof, and who also holds over under like circumstances after a default in the payment for sixty days from the time the same shall be payable of any taxes or assessments which the tenant has agreed to pay, can avail himself of the provisions of § 2256 of the Code, which allows the tenant at any time within one year after the execution of the warrant, when the unexpired term of the lease exceeds five years, to pay or tender the landlord all rent in arrear at the time of the payment or tender, with interest, and th^ costs and charges incurred by the landlord, and thus restore to himself the possession of the premises and the advantage of his lease.

The learned justice in the court below has considered this subject fully and has expressed his views in an elaborate opinion which embraces and satisfactorily disposes of the whole controversy in that regard; and although additional views might be indulged it is deemed unnecessary to employ them, but to leave the affirmance of the judgment upon the opinion which he has delivered.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.