Reich v. Cochran

• Decision Date: 07 April 1911
• Citation: 201 N.Y. 450,94 N.E. 1080
• Parties: REICH v. COCHRAN et al.
• Court: New York Court of Appeals Court of Appeals

201 N.Y. 450

94 N.E. 1080

REICH

v.COCHRAN et al.

Court of Appeals of New York.

April 7, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Consolidated actions by Lorenz Reich against Eva S. Cochran, executrix and trustee, and others. From a judgment of the Appellate Division (139 App. Div. 931,124 N. Y. Supp. 1127), affirming a judgment dismissing the complaint, plaintiff appeals . Affirmed.

Alton B. Parker, Frank S. Black, and Edmund L. Mooney, for appellant.

Samuel Untermyer, for respondents.

WERNER, J.

After more than 20 years of almost continuous legal warfare, the history of the greater part of which is very impressively set forth in the comprehensive and able opinion of Mr. Justice Hatch written for the Appellate Division of the First Department upon a former appeal herein (105 App. Div. 544,94 N. Y. Supp. 404), the parties to this suit have apparently reached the end of their litigious journey. The consolidated actions which have eventuated in the judgment now before us for review were brought to set aside an order of the District Court of the city of New York for the Sixth judicial district, made August 12, 1892, in a summary proceeding instituted by William C. Cochran, the testator of the defendants, against Lorenz Reich, the plaintiff herein, to dispossess the latter from premises in the city of New York known as the ‘Cambridge Hotel,’ and for other relief which it would be unprofitable to recapitulate. At Special Term the complaint was dismissed on the merits upon findings of fact and conclusions of law which were unanimously affirmed at the Appellate Division. This result was inevitable, in view of our decision in Reich v. Cochran, 151 N. Y. 122, 45 N. E. 367, 37 L. R. A. 805, 56 Am. St. Rep. 607, which was a suit between the same parties, and in which it was held that the final order in the summary proceedings above referred to was a valid adjudication and a conclusive bar to an action brought by Reich against Cochran to cancel the lease between them, on the ground that it was intended as a mortgage, which was claimed to be void for usury. In these circumstances we should be content to affirm the judgment of the Appellate Division herein without any further expression of our views, were it not for a single question argued by the learned counsel for the appellant on the authority of certain cases in our Supreme Court. preme Court.

It is asserted that the petition, which was the foundation for the summary proceeding of August, 1892, was insufficient to invest the District Court with jurisdiction, because it failed to set forth such a statement of the petitioner's interest in the premises as is required by the statute. In support of the argument made in that behalf we are referred to certain decisions, which we will briefly consider for the purpose of removing what appears to be a misapprehension of the requirements of the statutes relating to summary proceedings. Section 2235 of the Code of Civil Procedure enumerates the various persons by whom a petition in summary proceedings may be made, and provides that ‘the applicant must present to the judge or justice a written petition, verified in like manner as a verified complaint in an action brought in the Supreme Court, describing the premises of which the possession is claimed, and the interest therein of the petitioner, or the person whom he represents, stating the facts, which, according to the provisions of this title, authorize the application by the petitioner,’ etc. As we understand the argument of the learned counsel for the appellant, it is that a petitioner must set forth in detail the facts which underlie his claim of interest in the premises, and from this postulate he proceeds to the proposition that the petition made by Cochran in 1892 was insufficient, because it does not state these underlying facts. That petition named Cochran as landlord of the premises, which were accurately described. It recited a lease thereof made by Cochran to Reich at the time when the lessor was entitled to possession. It alleged that Reich entered under that lease and continued in possession thereunder; that the petitioner ‘now is, and ever since the making of the said lease has been, the landlord of the said Lorenz Reich with respect to the above-described premises, and entitled to the rent’; that a certain amount of rent is due and unpaid, for which demand has been made; and that the tenant has failed to pay, and holds over without the petitioner's permission.

A short reference to the history of the statutes relating to summary proceedings, and to the provisions of the statute as it now stands, will serve to show what we think is meant by the statutory requirement that the petitioner shall describe his interest in the premises and state the facts which authorize him to make an application for the removal of the tenant. Prior to 1820 the only remedy which a landlord had was by action in ejectment. That was, of course, an expensive and dilatory proceeding, which in many instances amounted to a denial of justice. The statute of 1820 (Laws 1820, c. 194) was designed to remedy this evil by providing the landlord with a simple, expeditious, and inexpensive means of regaining possession of his premises in cases where the tenant refused upon demand to pay rent, or where he wrongfully held over without permission after the expiration of his term. Originally the statute was confined to cases of forcible enter and detainer, and to cases where the strictly conventional relation of landlord and tenant, created by agreement, existed between the parties. The latter class embraced only those cases where the person in possession had, by some act or agreement, recognized another as his landlord, and had thus foreclosed himself of the right to dispute the title. Under this early statute it was enough that the landlord, lessor, his legal representatives, agents, or assigns, should make an...