Donelly v. O'Day — 48 N.Y. St. Rep. 709

Majority

p. 709

Michael Donelly, Appl’t, v. John O’Day, Resp’t.

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

Landlord and tenant—Attornment.

In summary proceedings for nonpayment of rent it appeared that defendant, who was in possession under a lease from one M., without the consent of M. attorned to plaintiff, who claimed the premises adversely to M., but who was out of possession. Held, that such attornment was "void and inoperative to constitute the relation of landlord and tenant between the parties. .

Appeal from order of a district court, dismissing a summary proceeding for the removal of an alleged tenant for nonpayment of rent

Benjamin N. Cardozo, for resp’t; G. A. C. Barnett, for app’lt.

Upon the return these facts appear,, without contradiction : That respondent went into possession of the premises under a lease from McArdle; that the petitioner, out of possession, claimed the premises adversely to McArdle; that pending the term and while in possession under McArdle, the respondent, without the consent of McArdle, attorned to the petitioner. The question is, whether the conventional relation of landlord and tenant subsisted between the parties to the proceedings?

To establish the relation appellant relies upon the attornment. But, obviously and indisputably, the attornment was merely void,. 1 Rev. Stat., 744, § 3, and as such was inoperative for any and all purposes. O'Donnell v. McIntyre, 37 Hun, 623 , 626; Jackson v. Harper, 5 Wend., 246 . In the People v. Angel, 61 How., 157 , the attornment was valid and effectual, and for that reason the order dismissing the proceeding was reversed.

Our own adjudication in Sperling v. Isaacs, 13 Daly, 275 , is explicitly in point, and conclusive of the case adversely to appellant.

Order affirmed, with costs.

Bischoff, J., concurs.