Cornwell v. Sanford

• Decision Date: 08 January 1918
• Citation: 118 N.E. 620,222 N.Y. 248
• Parties: CORNWELL v. SANFORD.
• Court: New York Court of Appeals Court of Appeals

222 N.Y. 248

118 N.E. 620

CORNWELL

v.SANFORD.

Court of Appeals of New York.

Jan. 8, 1918.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by William C. Cornwell against Thomas F. Sanford. From a judgment of the Appellate Division (167 App. Div. 182,152 N. Y. Supp. 582), affirming the judgment of the Trial Term (87 Misc. Rep. 395,149 N. Y. Supp. 583), in favor of plaintiff entered on directed verdict, the defendant appeals by permission. Reversed, and new trial granted.

The nature of the action and the facts, so far as material, are stated in the opinion.

Parton Swift, of Buffalo, for appellant.

August Becker and Elmer S. Stengel, both of Buffalo, for respondent.

COLLIN, J.

The action is to recover moneys alleged to be owing by the defendant as rent for real estate. The justice at Trial Term directed a verdict in favor of the plaintiff, and the Appellate Division has affirmed the judgment consequent thereon.

The cardinal facts are: In May, 1902, the plaintiff as landlord and the defendant as tenant entered into a written lease of the premises to end May 1, 1907. It provided that the annual rent should be paid monthly in advance. On June 23, 1906, the plaintiff instituted, in the Municipal Court of Buffalo, summary proceedings for the removal of the defendant and his undertenants from the premises for a default in payment of rent, pursuant to the provisions of the Code of Civil Procedure. Sections 2231-2265. On that date the precept, requiring the defendant to forthwith remove from the premises or show cause on a named date why possession of the premises should not be delivered to the plaintiff was issued and served. On July 6, 1906, the final order awarding to the plaintiff the delivery of the possession of the premises was made. The warrant commanding an officer to remove the defendant from and to put the plaintiff in possession of the premises was not issued, and no further action in the proceedings was had. On July 15, 1906, the defendant removed from the premises and sent the keys to the agent of the plaintiff.

On July 12, 1906, or three days before the defendant removed from the premises, the plaintiff commenced in the Municipal Court of the city of Buffalo an action against the defendant to recover, under the lease, the rent for the month of July, 1906 (and for prior months). The action proceeded, through the steps of a demurrer to the complaint, its overruling, a judgment by default against defendant, its reopening, the filing of an answer and a trial, to a judgment of September 1, 1906, against defendant for the rent sued for. The action at bar, commenced May 4, 1907, is to recover, under the lease, the rent for the months from August, 1906, to April, 1907, inclusive. The defendant asserts as a defense that the summary proceedings and his removal of July 15, 1906, pursuant to the final order, canceled the lease and the obligation to pay the rent. The plaintiff asserts that the judgment in the action, commenced July 12, 1906, is res adjudicata of the inadmissibility and insufficiency of such defense.

[1] The lease was not canceled by the issuance in the summary proceedings of the precept or the making of the final order. Section 2253 of the Code of Civil Procedure is:

‘The issuing of a warrant for the removal of a tenant from demised premises, cancels the agreement for the use of the premises, if any, under which the person removed held them; and annuls accordingly the relation of landlord and tenant, except that it does not prevent a landlord from recovering, by action, any sum of money, which was, at the time when the precept was issued, payable by the terms of the agreement, as rent for the premises; or the reasonable value of the use and occupation thereof, to the time when the warrant was issued, for any period of time, with respect to which the agreement does not make any special provision for payment of rent.’

[2][3] The section is inoperative and inapplicable here because the warrant was not issued. The summary proceedings were not carried beyond the making of the final order. The lease, therefore, was in force and obligatory upon the parties on July 12, 1906; that is, at the commencement of the action for the rent up to August 1, 1906. On July 12th the defendant was liable for the rent for the month of July, 1906, because, under the lease still in force, it was to be paid monthly in advance. On the 15th day of July, 1906, however, the lease was canceled by the removal of the defendant from and the delivery of the possession of the premises to the plaintiff. The cancellation was not effected by any statute, but was the legitimate and inherent effect of insisting and conducting to the making of the final order the summary proceedings, and the removal on the part of the defendant. Judicial decisions have uniformly held that the moving by the tenant from the leased premises, enabling thereby the landlord to take peaceable possession of them, after the issuance and service of the precept in the summary proceedings, cancels the lease and annuls the relation of landlord and tenant as of the time of the removal; the service of the precept is an election and declaration on the part of the landlord that the tenant should remove from the premises, and that the lease should be canceled. It creates to the tenant the right to remove from the premises, and effect the cancellation of the lease at any time thereafter. The removal is the precise act and effect the landlord sought through the service of the...