Carter v. Anderson — 36 N.Y. St. Rep. 795

Majority

p. 795

Ellen Carter, Resp’t, v Mary Anderson et al., App’lts.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

Restitution.

On the reversal of a judgment awarding possession of premises to plaintiff, restitution cannot be awarded to the defendants where the premises are actually in the possession of one not a party to the action under a lease for a term of years which is unexpired.

Motion for restitution. For decision on the appeal from judgment see 34 ISI". Y. State Bep., 756.

Hoe & Macklin, for the motion; William P. Burr, in opposition.

As it appears by the moving papers that Hugh C. McGrown is in possession of the premises under a lease which is not to expire until May 1, 1893, restitution cannot be awarded. Code Civ. Pro., § 1323; Costar v. Peters, 4 Abb., N. S., 53; but the petitioners must be remitted to their remedy by action. Market National Bank v. Pacific National Bank, 102 N. Y., 464 ; 2 N. Y. State Rep., 58.

Motion denied, but without costs.

Allen, Bischoff and Pryor, JJ., concur.