Witty v. Acton — 65 N.Y. Sup. Ct. 552

Majority

p. 552

MARY E. WITTY, Appellant, v. THOMAS C. ACTON and ALPHONSO S. SHERWOOD, Respondents.^[1]

Headnote

Landlord and tenant—right of a tenant, evicted for non-payment of a tax, to tender payment of the tax and he restored to possession under section 2256 of the Code.

A tenant who has been removed from the demised premises, after a default in the payment, for sixty days after the same became payable, of any taxes or assessments upon the demised premises -which he had agreed to pay, cannot avail himself of the provisions of section 2256 of the Code of Civil Procedure, 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 to

p. 553

the landlord all rent in arrear at the time of the payment or tender, 'with interest and the costs and charges incurred by the landlord, and thus restore himself to the possession of the premises and the advantage of his lease.

Appeal by tbe plaintiff from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of New York on tbe 3d day of April, 1890, witb notice of an intention to bring up for review, upon sucli appeal, an interlocutory judgment, entered in said clerk’s office on tbe 13tb day of March, 1890, sustaining tbe demurrer of tbe defendants to tbe plaintiff’s amended complaint, as further amended, nune pro tuno, as of December 5, 1889, by an order entered on February 26, 1890.

Tbe action was brought to recover tbe possession of certain

p. 554

premises in tbe city of New York, and. damages for the witholding of the same.

J. Sabine Smith, for the appellant.

George JBlAss, for the respondents.

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 default in the payment of the rent due pursuant to the agreement under which the demised premises are held

p. 555

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 section 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 the 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 (note, ante, p. 552), 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.

Yan Brunt, P. J., and Daniels, J., concurred.

Judgment affirmed, wth costs.