Majority
p. 102THE PEOPLE ex rel. GOTTLIEB GRISSLER and another v. NICHOLAS W. STUYVESANT, a Lunatic, by Henry Dudley, his Committee, and NICHOLAS W. S. CATLIN, Executor, etc., of Joseph R. Stuyvesant, Deceased.
Headnote
Bumma/ry proceedings—covenants in tease—rent.Certain premises were leased by S. to B. & M., who subsequently executed to S. a mortgage on the leased and other property; the rent being unpaid, S. entered into possession of the premises under a warrant of dispossession; subsequently he foreclosed the mortgage, and at the sale the premises were purchased by the relators; the deed conveying the premises, on which were the unexpired leases of B. & M., “ to have and to hold the same for the unexpired term of the said leases ”; held, that they thereby’became, in effect, the assignees of the lease of B, & M., unaffected by the previous entry of S.; that the covenant to pay rent was not extinguished; and that the relation of landlord and tenant existed between S. and the relators. S., upon his death, devised certain of the premises, in which he had a fee subject to these leases, to his son; and the others, in which he had only a leasehold interest subject to the leases, passed to his executor; held, that the rent was not thereby apportioned, but remained an entirety so far as the tenants were concerned.
In summary proceedings, it is proper to demand interest upon the rent.
Cbbtiobabi to review the decision of Justice J. W. Fowleb, in summary proceedings had before him, to recover the possession of land for non-payment of rent.
Joseph R. Stuyvesant was,‘in 1867, the owner of two lots on
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Third avenue, New York, known as lots Nos. 158 and 160, and the lessee of two other lots on the said avenue known as lo<ts Nos. 152 and 154, and on the thirtieth of J uly of that year he leased the four lots to Browning and Moore for ten years from May 1st, 1868, at the yearly rent of $6,000, payable quarterly. On the 4th of August, 1868, the lessees made a mortgage for $20,000, on this lease and a lease of other property held by them, to Stuyvesant.
On the 2d of April, 1869, the rent being unpaid, Stuyvesant. entered into possession of the premises under a warrant of dispossession. • On the third of April, an action was commenced to foreclose the mortgage for non-payment of interest, and, under a decree in that action, the sheriff, on the 11th of October, 1869, sold and conveyed to the relators the unexpired term of Browning and Moore, in the premises. They refused to pay rent to Stuyvesant, and on the 6th of March, 1872, proceedings to dispossess them were commenced by him, and a judgment rendered against them. A certiorari was brought by them to this court, and at a General Term, held January, 1873, the judgment was affirmed, and at the General Term, held December, 1873, the court refused leave to the relators to appeal to the Court of Appeals on the merits.
J. R. Stuyvesant died in March, 1873, leaving a last will and testament, by which he devised all his real estate to his son, Nicholas W. Stuyvesant, and appointed Nicholas W. S. Gatlin one of his executors, who alone qualified as such.
Nicholas W. Stuyvesant became insane before the death of the testator, and on the 24th of April, 1873, the care and custody of his person and the management of his estate, were committed to the respondent, Henry Dudley. The executor authorized Dudley to demand such portion of the rent, accruing under the terms of the lease, as might be due him, either separately or in conjunction with Dudley, wTho, thereupon, demanded the-whole of the rent due for the quarters ending May 1, August 1 and November 1,1873, with interest from the respective quarter days, and, upon the refusal of the relators to pay, proceedings for dispossession were commenced. Judgment was given in favor of the respondents.
John J. Townsend, for the relators.
George V. JT. Baldwin, for the respondents.
In the case of these relators against Joseph R. Stuyvesant, which involved the same lease now under consideration, it was held by this court, Justice Learned delivering the opinion, that when Joseph R. Stuyvesant secured in his judgment of foreclosure, the payment of the rents, for the non-payment of which he had entered, and when he sold, as being still in force, the lease granted by him to Browning and Moore, he (Stuyvesant) waived any forfeiture which had taken place under the lease; also, that the relators, purchasing under such circumstances, became in effect the assignees of the lease, unaffected by the previous entry of Stuyvesant.[3]
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We see no reason to doubt that this view of the relation between Stuyvesant and the relators, is correct, and therefore concur in the opinion delivered in that case.
The relators then being in possession of the demised premises, as assignees of the lease, the position that they are not liable by force of the covenant to pay rent contained in the lease, and that the conventional relation of landlord and tenant did not exist between
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them and Joseph R. Stuyvesant, is not tenable.[3] Nor can it be maintained that Joseph R. Stuyvesant, by the terms of his will, apportioned the rent, in the sense claimed by the relators’ counsel, between his son and his executor, by devising to the former the lots Nos. 158 and 160 Third avenue, and bequeathing to the latter the leasehold interest in the lots Nos. 152 and 154 Third avenue.
The rent remained an entirety and unapportioned, so far as the tenants were concerned. The fact that it was to be divided or distributed, after payment, between the heir-at-law and executor of
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Stuyvesant, was a matter which in no way affected or interfered with the rights of the relators. The whole of the rent was due from the tenants, and the whole of the rent was due to the respondents, as joint owners thereof. The tenants have no interest in the apportionment to be made between the owners of the lots in which Stuyvesant held a leasehold interest, and those which he owneu in fee. Their duty was to pay the rent when it fell due, and not to concern themselves with its distribution after payment. We see no impropriety in Mr. Dudley’s 'making a demand of the rent for the whole of the demised premises. He was authorized by the executor, Mr. Catlin, to act for him, and to take all necessary measures to collect the rent. He was authorized, as the committee of Nicholas W. Stuyvesant, to act for Stuyvesant.
The statute relating to “ Summary Proceedings,”- does not require that the demand should be made by the actual owner of the rent. It may be made by an agent duly authorized, as Dudley was in this case. Again, all that the statute requires, to give the justice before whom the proceedings are brought, jurisdiction, is that the landlord or lessor, or his legal representatives, agents or assignees, should make oath, in writing, of the facts which, under the provisions of the statute, authorize the removal of the tenant. In this case, Dudley was .the legal representative of the deceased landlord, as respected the two lots owned in fee, by the terms of the will devising those lots to N. W. Stuyvesant, for whom Dudley was the committee; and, as respected the two lots in which the landlord held a leasehold interest, he stood as the agent of the legal representative, Catlin, by virtue of the authority delegated to, or conferred upon him by Catlin. We are also of the opinion that the demand for interest on the rent was proper.[3]
On the whole case, we are satisfied that there was no error in the proceedings before the justice, and the decision below is, therefore, affirmed, with costs.
Davis, P. J., and Daniels, J., concurred.
Decision affirmed.[4]
* Griffin v. Clark, 33 Barb., 46 .
† † At the May General Term, an application made by the relators for leave to appeal to the Court of Appeals, was granted.
Footnotes
- * The case of The People ex rel. Gottlieb Grissler and another v. James W. Fowler, Justice, referred to above, was decided at the January term, 1873. John J. Townsend, for the relators. Douglas Campbell and Henry Hilton, for the respondents. Learned, J.: The important question in this case is as to the position which the relators hold to the defendant. In 1867, Stuyvesant leased for ten years, to Browning and Moore, certain premises in Hew York, for the rent of $6,000 per annum. In 1868, Browning and Moore executed to Stuyvesant, a mortgage on this leased property and other property, for $30,000 and interest to April, 1869. Stuyvesant went into possession Under a dispossession warrant. The effect of this, under some circumstances, would be to terminate the lease, but the statute provides (Laws 1843, chap. 240, § 1) that, if the unexpired term exceeds five years, the lessee may redeem within one year. There remained, therefore, in Browning and Moore, a right to redeem their lease by paying the rent in arrear and costs and charges. Thereupon the mortgagee, Stuyvesant, proceeded to foreclose the mortgage. This course seems to have been proper, in order to collect the amount due on the mortgage, and there was something to be foreclosed, because the mortgagors, being the lessees, held this statutory right of redemption. This foreclosure was, in some respects, unwisely conducted. The description of the property in the complaint and other proceedings, might lead one to think that the mortgage had conveyed a fee; but the relators were parties to the foreclosure, and set up in their answer, the fact of tire lease by Stuyvesant to Browning and Moore. They knew, therefore, what the interests were which Browning and Moore had mortgaged, and which Stuyvesant was foreclosing. The foreclosure proceeded to a j udgment and sale, and on that sale the relators, Grissler & Fausel, purchased and accepted the deed executed under the judgment October 11,1869; under that deed they went into possession. That deed, in form, conveys the premises, with the leases, unexpired, of Browning and Moore,‘1 to have and to hold for the unexpired term of said leases.” It is plain, *105 therefore, that this deed conveyed to the purchasers the leases, unexpired, executed by Stuyvesant to Browning and Moore; or, since we have seen that there probably remained of the lease, prior to the foreclosure, only the statutory right of redemption, this deed conveyed that right. The judgment, however, under which the deed was executed, provided that out of the avails of the sale there should be first deducted, the rents due by Browning and Moore on the lease, before the payment to the plaintiff of the amount due on his mortgage.' By this, Stuyvesant, in effect, provided that the statutory right of redemption should be exercised, so that any purchaser at the foreclosure sale should obtain the benefit of the lease executed by Stuyvesant to Browning and Moore, free from any previous forfeiture. The amount paid on the sale under foreclosure, was $30,000, and as the lease, at the time of the aforesaid re-entry, had run only two years, the money received on the sale, must have been enough to pay the rent then in arrear, as Stuyvesant was both mortgagee and also landlord. This foreclosure sale, describing the lease as existing with the provision in the judgment for redemption from any previous forfeiture, must be held to have conveyed to G-rissler & Fausel, the lease for the unexpired term. By accepting the deed, they became practically the assignees of Browning and Moore, and tenants of Stuyvesant under his lease. This was the view taken in another litigation between these same parties. (Stuyvesant v. Grissler, 12 Abb. [N. S.], 6.) No question would probably have arisen on this point, if it had not been stated that Stuyvesant, previous to the foreclosure, had taken possession under a dispossession warrant. But when he subsequently received, in his judgment of foreclosure, the payment of the rent, for non-payment of which he had entered, and when he sold, as being still in force, the lease executed by him to Browning and Moore, he waived any forfeiture which had taken place, and the relators, purchasing under these circumstances, became, in effect, the assignees of the lease, unaffected by the previous entry. This, then, disposes of the principal question in the case. It is objected that the provisions in chapter 741, Laws of 1870, by which proceedings for dispossession may be had before any justice of the district, is “ local," and therefore unconstitutional, tinder section 16, article 3. The decision in Huber v. People ( 49 N. Y., 132 ), on which this objection mainly rests, held that the tax levy bill was a local act. It cannot, however, be claimed that chapter 741 of the Laws of 1870, being an act amendatory of the Code of Procedure, is itself a local act. The objection is that the particular provision in that act is local. But taking the definition of that word from People v. Supervisors of Chautauqua ( 43 N. Y., 21 ), a “local” act is one “which in its subjects *106 relates but to a portion of the people of the State or to their property.” How, this provision is not limited to any portion of the people. Any one who has occasion to do so, may avail himself of the jurisdiction conferred. The Code, and the several amendments thereto, in many places contain clauses relative to tribunals, whose jurisdiction does not extend throughout the State. Title V is one instance. These clauses are not, for that reason, unconstitutional. A further objection is taken, that the affidavit, on which the proceedings were commenced, is insufficient. But it alleges the making of the lease, the length of the term, the rent, the assignment of the lease to the relators, their occupation, the non-payment of rent, the demand and notice. These allegations seem to be all that is necessary. Another question is as to .the regularity of the jury. The justice, under the statute, nominated twelve. It appeared that they had not been properly summoned. He then nominated twelve others. Only eight attended; six of those were drawn to compose the jury. It appears by Roach v. Cosine ( 9 Wend., 231 ) that it. was proper to issue a new venire, and there is nothing in the statute which affirmatively requires that the names of all who were summoned, shall be placed in the box. It would be useless to place names in the box, of persons who had, from any cause, failed to attend. The notice requiring the payment of the rent, was not irregular for stating the amount of interest owing upon the rent. The payment required was expressly of the “rent,” and the case of Griffin v. Clark ( 33 Barb., 46 ) is conclusive upon this point. The relators in this case, being, as we hold, the tenants of Stuyvesant, and owing him, as rent for the premises, the amount claimed, have suffered no injury. They have not been removed from the premises, but have prevented such removal by the payment of the rent which they owed. If there had been any irregularity, therefore, in the proceedings, the only injury occasioned to the relators by these proceedings would be the costs, which they have paid; as to the rent, that they ought to have paid without compulsory proceedings. The proceedings before the justice should be affirmed, with costs. Brady, J., concurred.. Proceedings and judgment affirmed.
- * People v. Stuyvesant, opinion of Learned, J.; see also Stuyvesant v. Grissler, 12 Abbott, N. S.