Brumberg v. Chunghai Chan

• Decision Date: 05 August 1959
• Parties: Harry BRUMBERG, Landlord, v. CHUNGHAL CHAN, Tenant.
• Court: New York District Court

Page 315

204 N.Y.S.2d 315

25 Misc.2d 312

Harry BRUMBERG, Landlord, v. CHUNGHAL CHAN, Tenant.

District Court, Nassau County, First District.

Aug. 5, 1959.

Lewis, Durante & Bartel, New York City, for landlord; by James P. Durante, New York City.

S. Walter Frank, Long Beach, for tenant.

BERNARD TOMSON, Judge.

By order to show cause, dated July 22, 1960, the tenant moves to set aside a final order entered upon a written stipulation, dated November 24, 1959, and seeks leave to serve an answer to the petition.

About eight months have elapsed since the tenant's attorney entered into the written stipulation resulting in the final order. The ground for the motion is an alleged lack of authority on the part of said attorney, Edward Goldman, Esq., to enter into the stipulation in question or to consent to the entry of the final order or to waive the tenant's counterclaim against the landlord.

The affidavit in support of the order to show cause states:

'In the early part of November, 1959, I was served with the petition herein. On November 11, 1959, I left this country for Hong Kong in order to bring my three daughters back and to leave them with my sister. Consequently, I was unable to appear or defend in this action. I turned the precept over to Edward Goldman, Esq., to handle the matter for me during my absence from the country.

'On November 24, 1959, Mr. Goldman, without authority from me or without my knowledge or consent, entered into a stipulation with the landlord consenting to the entry of a final order in this action and discontinue my claim against the landlord. This stipulation was totally unauthorized and in excess of Mr. Goldman's authority. I only retained Mr. Goldman to defend the dispossess action and counterclaim for damages sustained by me during my tenancy. I did not return to this country until about June 15, 1960.'

The landlord hotly contests the statements made in the tenant's affidavit, asserting that the stipulation was entered into after a number of appearances in court, that the landlord waived a substantial claim in excess of $4,000 for rent past due, that the attorney for the tenant was authorized to enter into the subject stipulation, that each month until June 1, 1960 the tenant paid $350 for the use and occupancy of the premises, and, at no time, until the current application did the tenant question the stipulation or final order.

It seemed appropriate to the court that the matter be set down for a hearing on which testimony could be adduced as to the authority of the tenant's attorney to enter into the stipulation in question and as to the tenant's laches, if any, or his ratification of the acts of his attorney even if unauthorized. Cf. Re Glebe Juniors, Inc., 279 App.Div. 653, 108 N.Y.S.2d 996, reversing 199 Misc. 934, 105 N.Y.S.2d 621.

At the hearing the tenant and the attorney, Mr. Goldman, testified at length. Their testimony, in the main, was consistent except as to one material fact; i. e. whether, from the time the tenant left the jurisdiction in November, until he heard from the tenant some time about December 15, 1959, Mr. Goldman knew at what address he could communicate with his client. The tenant stated that the attorney had this information. This was categorically denied by the attorney, whose version the court accepts.

In a letter, dated December 11, 1959, the tenant wrote as follows:

'Dear Mr. Goldman: I have arrived Hong Kong yesterday. I am staying in Hotel Nathan, Nathan Road, Kowloon, Hong Kong. How is the case between Mr. Brumberg and myself developed? I am very anxious to know? Please write me as soon as this letter is received. Sincerely yours, Chunghai Chan. Room 530, Hotel Nathan, Nathan Road, Kowloon, Hong Kong. When you write, it is very important to write the room number, because people here may not know my English name but they know the room number. Therefore the proper way of address to me is exactly as follows: Mr. Chunghai Chan, c/o Hotel Nathan, Room 530, Nathan Road, Kowloon, Hong Kong.'

On December 15, 1959, Mr. Goldman replied as follows:

'Mr. Chunghai Chan, c/o Hotel Nathan, Room 530, Nathan Road, Kowloon, Hong Kong. Re: Lease with Brumberg.

Dear Mr. Chan: Receipt is acknowledge of your letter of December 11, which we received in today's mail. As you know the dispossess notice which was personally served on you just before you left on your trip was returnable in the District Court at Mineola on November 9th. We phoned Mr. Brumberg's attorneys and we obtained a postponement of one week. He would not agree to any further adjournment, and we were therefore compelled to appear in court on November 16th.

'We argued before the judge for an extension of time. Mr. Brumberg's attorney vigorously opposed any further delay or postponement of the trial, but over his protest, the judge granted us a final adjournment of one week, and directed that this case be tried on November 23rd. In this type of case, the law clearly provides that all landlord-tenant cases, even though a jury trial is demanded, be heard at the earliest possible time. In other words, the judge was powerless to grant our request for additional time.

'Under the circumstances, I went personally to New York to see Mr. Spar at his office to obtain his assistance and cooperation. I informed him that you were on a trip of great personal importance and I asked him to meet with me at the office of Mr. Brumberg's attorneys. I attended a conference and after much negotiation they were not willing to adjourn the matter. In view of this situation, I felt that if we did have to appear in Court for trial without you, a final dispossess order would undoubtedly be obtained, and in addition, a judgment would be entered for the rent arrears, plus...