Jones v. Reilly

• Decision Date: 06 March 1903
• Parties: JONES et al. v. REILLY et al.
• Court: New York Court of Appeals Court of Appeals

174 N.Y. 97

66 N.E. 649

JONES et al.

v.REILLY et al.

Court of Appeals of New York.

March 6, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John M. Jones and others, executors of Morgan Jones, deceased, against Margaret T. Reilly and others. From a judgment of the Appellate Division (74 N. Y. Supp. 243) affirming a judgment for plaintiffs, Hannah R. Rockwell and others appeal. Reversed.

Clarence L. Barber and George Putnam Smith, for appellant Hannah R. rockwell.

James E. Chandler, for appellant George H. Brooke.

Richard T. Greene and John M. Jones, for respondents.

CULLEN, J.

The plaintiffs, claiming to be the landlords, instituted summary proceedings in a District Court in the city of New York to dispossess one Andrew Henderson from certain premises in said city for nonpayment of rent. In the proceeding, Henderson made answer, alleging that Hannah R. Rockwell was the owner in fee of said premises, and in possession of them, and that the trial of the proceeding would necessarily involve the title to said real property. With his answer he tendered the bond required by section 2952 of the Code of Civil Procedure. Both parties erroneously assumed that the answer of the tenant ousted the District Court of jurisdiction. Thereupon the plaintiffs brought this action in the Supreme Court. The alleged tenant, Andrew Henderson, having died, his heirs at law were made parties defendant. One of such defendants (Hannah R. Rockwell) claimed title by deed executed to her by said Andrew Henderson. George H. Brooke, to whom said Rockwell had mortgaged the premises, was subsequentlymade a defendant upon his own application. The complaint alleged ownership in fee by the plaintiff's predecessor in title, Annie E. Jones; a lease from her to Andrew Henderson, before mentioned, a copy whereof was annexed to the complaint, and made a part thereof; default in payment of the rent reserved; the death of said Henderson, and that the defendants were his heirs at law. Apparently, on the theory that the summary proceedings had been removed from the District Court by the answer and bond of the tenant, judgment was prayed that a final order be issued to remove the tenant from possession of the premises, and that the plaintiffs have such other relief as might be just. The answers of the defendants were substantially a general denial. The defendant Rockwell also set up title in herself. The plaintiffs recovered a verdict at Trial Term, on which a judgment was rendered, awarding them the delivery of the premises described in the complaint, and ordering that a warrant issue to remove the defendants from said premises, and to put the plaintiffs in possession thereof. That judgment was unanimously affirmed by the Appellate Division.

The first point raised on this appeal is that the answer and bond of the tenant did not deprive the District Court of jurisdiction, and that there was no authority for the removal of the proceeding to the Supreme Court. This contention is doubtless correct. But the plaintiffs did bring an action in the Supreme Court, and the fact that the action was instituted on the erroneous supposition that the District Court had lost jurisdiction of the summary proceedings does not affect the jurisdiction of the Supreme Court to entertain the action. La Rue v. Smith, 153 N. Y. 431, 47 N. E. 796. The learned Appellate Division were therefore right in treating it as an action of ejectment, and disregarding the previous proceedings in the District Court. Any objection to the form of the verdict should have been made at the trial. Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51,52 Am. Rep. 63. Any informality in the judgment should have been corrected by motion.

It is next objected that ejectment cannot be maintained for nonpayment of rent, for the lease reserved to the landlord no right of re-entry in case of such default, and no provision that in such contingency the lease should determine. This contention is probably correct (De Lancey v. Ganong, 9 N. Y. 25), but the appellants are in no position to raise it in this court. No motion was made at the trial to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Had such a motion been made and overruled, that ruling could, under proper exceptions, have been reviewed here. But we are foreclosed from examining the correctness of the disposition of the motion for a nonsuit made at the close of the evidence by the unanimous affirmance of the Appellate Division, which imports that there was evidence sufficient to sustain the verdict. Reed v. McCord, 160 N. Y. 330, 54 N. E. 737. Moreover, the plaintiffs were allowed on the trial to amend their complaint by alleging the service of 20 days' written notice to terminate the tenancy which the lease in express terms authorized. This amendment was made over the objection and exception of the appellants, and it is urged that the trial court erred in granting it. The change was certainly substantial, since in the case of ejectment for nonpayment of rent the statute requires the amount of the rent to be specified in the judgment, and the tenant may be restored to his estate by payment of the arrears at any time within six months, while a judgment in an action in ejectment for expiration of term would oust the defendants permanently. As the judgment must be reversed for errors hereafter mentioned, it is not necessary for us to determine whether there was error in allowing the amendment, as before a new trial the pleadings may be placed in proper shape to present the issues between the parties.

On the trial the plaintiffs relied exclusively on the claim that the defendants' ancestor was in possession of the premises under a lease from them, and as their tenant. This relation, if established, was sufficient to entitle them to a recovery. ‘No proof of title is required in this action when it is brought by a landlord, since, if a tenant has once recognized the title of the plaintiff, and treated him as his landlord, by accepting a lease from him, or the like, he is precluded from showing that the plaintiff had no title at the time the lease was granted; and that whether the action be debt, assumpsit, covenant, or ejectment.’ 2 Taylor, Landlord & Tenant, § 705. See Sedgwick & Wait, Title to Land, § 351; Ingraham v. Baldwin, 9 N. Y. 45. To show the relation between the parties, the plaintiffs called as a witness the counsel for the defendants, on...