21 West 46th St. Corp. v. Latherizer Corp.
| Decision Date | 13 January 1932 |
| Citation | 254 N.Y.S. 873,142 Misc. 487 |
| Parties | 21 WEST FORTY-SIXTH STREET CORPORATION, Landlord, v. THE LATHERIZER CORPORATION, Tenant. |
| Court | New York City Municipal Court |
Summary proceeding to dispossess tenant.
Submit final order.
This summary proceeding to dispossess defendant tenant must be dismissed, without prejudice to an action for rent, where the tenant was physically out of possession of the premises when the proceeding was commenced. Continued possession of the tenant in the leased premises is an essential jurisdictional fact for the maintenance of a summary proceeding (Civ. Prac Act, § 1410).
The fact that the parties are in court and the precept contains an adequate notice of demand for rent in arrears does not permit the court to retain jurisdiction for the purpose of awarding judgment, pursuant to section 1425 of the Civil Practice Act. It was not the purpose of chapter 514 of the Laws of 1924, section 1425 of the Civil Practice Act, to permit a summary proceeding to recover possession of real property, to be a substitute for an action for rent in a case where the jurisdictional facts for the maintenance of a summary proceeding are shown not to exist.
Lurie & Feinberg [Herman I. Lurie of counsel], for the landlord.
C Monteith Gilpin [Abner Schoen of counsel], for the tenant.
I am asked to render a decision upon a state of facts agreed to by both parties.
It is conceded that the tenant was not in physical possession of the property at the commencement of these proceedings, December 2, 1931, having vacated the premises on October 29, 1931. At the time of vacating the premises the tenant tendered the keys of the premises to the landlord who refused to accept them.
The question presented for my decision is whether these proceedings will lie in view of the fact that the tenant was physically out of possession when these proceedings were commenced and makes no claim of possession. I have reached the conclusion that the proceedings will not lie. Apparently the tenant abandoned the property prior to the commencement of the proceeding. The landlord could have resumed possession without the necessity of instituting court proceedings.
Section 1410 of the Civil Practice Act, which is the provision referring to the removal of tenants in summary proceedings, provides in subdivision 1 for the removal of a tenant 'when he holds over and continues in possession of the demised premises or any portion thereof after the expiration of his term without the permission of the landlord,' and in subdivision 2 'where he holds over, without the like permission, after a default in the payment of rent, * * *.'
It would thus appear that the continued possession of the tenant in the demised premises is an essential jurisdictional fact for the maintenance of a summary proceeding. This proposition has been held in this department in the case of Warrin v. Haverty (149 A.D. 564, 567), where the court said: 'The court was without jurisdiction to make the order, for the uncontroverted evidence shows that the tenant was not in possession at the time the proceeding was instituted, and was not holding over or claiming any rights as a tenant of the premises.'
The landlord, however, claims that, the parties being in court, jurisdiction should be retained for the purpose of awarding judgment pursuant to the provision of section 1425 of the Civil Practice Act as it was...
To continue reading
Request your trial
-
Schor v. Domery
...events. Cases cited by tenants, in which the tenants had removed prior to the issuance of the precept (21 West Forty-Sixth Street Corp. v. Latherizer Corp., 142 Misc. 487, 254 N.Y .S. 873) are readily distinguishable, for in that event, the Court never secured However, while this Court woul......
-
First Nat. City Bank v. Wall St. Leasing Corp.
...Law is in part derived from section 1425 of the Civil Practice Act. The court in the case of 21 West Forty-Sixth Street Corp. v. Latherizer Corp., 142 Misc. 487, 254 N.Y.S. 873, while discussing Section 1425, observed that it was intended that a special proceeding would not substitute for a......
-
Sarafian v. Wool Bros. Corp.
...were wholly vacant and plaintiff had the keys.' The case before me is not unlike the case of 21 West Forty-Sixth Street Corp. v. Latherizer Corp., 142 Misc. 487, 488, 254 N.Y.S. 873, 874, where the question was presented whether the proceeding would lie in view of the fact that the tenant .......
-
E. BRONX PROPS. v. James
...the proceedings, should retain that jurisdiction for all purposes and to support its position cites two cases: 21 West Forty-six St. Corp. v. Latherizer Corp. (142 Misc. 487) and Matter of Wythe v. White (150 Misc. 405). The petitioner's position can probably be best stated in the language ......