Beatty v. Rosenberg , 160 N.Y.S. 135 ( 1916 )

Scott, J.:

The nature of the action and. its history down to the present time have been fully stated by Mr. Justice Davis and it will be unnecessary to repeat them in detail.

The crucial" question of fact asserted by plaintiff and denied by the defendant is whether or not defendant, who was the administrator of his deceased brother, the tenant, after his brother’s death entered upon and took possession of the premises under the lease, and continued to hold them not only for the term of the lease, but for a period of time after the lease had expired. It appears probable that the more important part of this question is whether or not defendant held over after the expiration of the term. One jury had found that defendant did not enter upon and take possession of the lease, and, of course, if he did not he could not have held over. A justice of the City Court sitting as a trier of the fact has arrived at the same conclusion. We are now asked to send the case back for yet a third trial, because the justice who presided at the second trial should have submitted the question to the jury. There is no doubt that he should have so submitted it if there had been any evidence in the case which would have justified a finding in behalf of plaintiff which it would not have been the instant duty of the court to set aside as against the evidence. The whole controversy turns upon the question whether or not defendant took possession under the lease and continued in possession thereunder. (Legget v. Pelletreau, 213 N. Y. 237.) In our opinion it is quite clear that he did not. It is true that he demanded admission to the apartment and that he went there twice, but it is evident that his purpose in so doing was to ascertain what personal property decedent had left, and to look for papers relating to the estate. The second visit was with the transfer tax appraiser and was apparently for the purpose of making an inventory and appraisal. These visits were within his right and duty as administrator and cannot properly be construed as an adoption of the lease. He was not bound to do any affirmative act to surrender or disavow the lease. The actual occupant of the premises during the period for which it is sought to hold defendant personally was the widow of the decedent. There is nothing to indicate that defendant put her into possession or kept her there. She appears to have remained by common consent. Defendant, as administrator, apparently permitted her to use the furniture belonging to the estate, but this falls far short of a personal assumption of her tenancy. As to the period after the lease expired there is not a scintilla of evidence upon which to hold the defendant. While we agree with Mr. Justice Davis that plaintiff was not too late in his motion to go to the jury, and that the court erred in denying his motion to that effect, we think, for the reasons above outlined, that the error was harmless.

The determination appealed from should be affirmed, with costs.

Clarke, P. J., and McLaughlin, J., concurred; Davis and Dowling, JJ., dissented.