Ward v. Edesheimer — 43 N.Y. St. Rep. 138

Majority

p. 138

Edward F. Ward, Resp’t, v. Isaac Edesheimer et al., App’lts.

(New York Common Pleas, General Term,

Filed January 4, 1892.)

Headnote

Landlord and tenant—Action for rent—Trespassers.

Defendants leased from plaintiff’s assignors certain premises, a portion of which they had previously leased from the former lessee, the remaining portion having been sublet to one M., who continued in possession after defendants’ lease commenced. Held, that M. was a meré trespasser, having no contract relations with the landlords, and that the latter were not obliged to eject him and put defendants in full possession to entitle them to recover the rent.

Appeal from judgment of the sixth district court.

Action for rent. The following is the opinion of the district judge:

Lachmah, J.—The question involved in this action is purely one of law. There is no substantial conflict in the evidence. The plaintiff’s assignors leased certain premises to the defendants. A portion of these premises had previously been hired by the defendants from a former lessee, and another portion had been sublet to one McMahon. After the defendants’ term in the entire premises had commenced, McMahon remained in possession of his portion. The defendants paid rent to the plaintiff’s assignors (as is conceded by the answer) for some months, but now contest this action for subsequent rent, on the ground that they have sustained damage through the failure to secure possession of the store. The decision of the case turns entirely on the question whether it is the duty of the landlord to eject the wrong-doer, and give the rightful tenant possession, or whether the latter must secure possession himself. The landlords were in no way directly connected with the withholding of the property. McMahon is not shown to have had any contract relation with them, nor- was he encouraged or assisted by them in any way. He had no paramount title or right, and, so far as is disclosed by the testimony, was simply a trespasser. The lease to Storz, under whom the defendants and McMahon held up to May first, expired on that day. Under these circumstances the authorities seem to leave no doubt that the plaintiff is entitled to recover. Gardner v. Keteltas, 3 Hill, 330 ; Mech. & Trad. Fire Ins. Co. v. Scott, 2 Hilt., 550. If McMahon

p. 139

were in under a paramount right, or by the consent of the landlords, or under a prior lease from the landlords, a different rule would apply. Trull v. Granger, 8 N. Y., 115 . The fact that the lease was executed on May third does not seem to me to affect the rule. It is unnecessary to determine what remedy the defendants could pursue as against McMahon to secure possession. Whether they could maintain summary proceedings, as Judge McAdam insists in his treatise, or whether they would be left to their action in ejectment, is immaterial. The only remaining argument presented by the learned counsel for the defendants is based on the statute of champerty. Even if this statute could be held applicable to a lease of this sort, it has no application here, as McMahon is not shown to maintain such adverse possession as is contemplated by the law; and, further, there is no evidence whatever to show what claim he makes. The plaintiff is, therefore, entitled to judgment.

Coleridge A. Hart, for resp’t; Benno Loewy, for app’lts.

The questions involved in this action were purely questions of law. There was no substantial conflict in the evidence. We think that the court below has very clearly and succinctly stated the law applicable to the fact» in this case, and that the judgment should be affirmed on his opinion.

Bookstayer and Bisci-ioff, JJ,, concur.