Marbridge Building Co. v. White , 115 Misc. 320 ( 1921 )

Lehman, J.

I agree with Mr. Justice Mullan that under the authority of Livingston v. Robb, 61 Misc. Rep. 81, the counsel fee and other expenses incurred in procuring defendant’s removal are not proper elements of damage in an action for breach of the defendant’s covenant to surrender the demised premises at the expiration of defendant’s term but in my opinion the plaintiff is entitled to recover the value of the use and occupation of the premises.

The case of United Merchants Realty & Improvement Co. v. Roth, 193 N. Y. 570, established the rule that “ a new lessee, whose lease begins at the termination of a prior lease, can at his option, treat the prior lessee in case he holds over, as his tenant under the terms of the original lease.” In the subsequent case of Eells v. Morse, 208 N. Y. 103, the court however decided “ that a landlord can maintain summary proceedings to remove a tenant holding over after the expiration of the term, although he has made a new lease of the premises to begin upon the expiration of the term of the tenant in possession, and that the tenant under the new lease cannot maintain such proceedings. (Cases cited.) The landlord has the remedy under such circumstances, because he has the right of possession as against the tenant holding over (Whiting v. Edmunds, 94 N. Y. 309), and the tenant cannot be heard to say otherwise. The second tenant does not have the remedy against the prior tenant because it is given only in cases where the conventional relation of landlord and tenant exists between the parties (Benjamin v. Benjamin, 5 N. Y. 383; People ex rel. Mitchell v. Simpson, 28 N. Y. 55) and such relation does not exist between the two tenants.” In accordance with the rule laid down in that case the plaintiff has secured a final order against the prior tenant awarding to him possession of the premises. The issuing of the warrant for the removal of the tenant from the demised premises under the final order “ does not prevent the landlord from recovering by action * * * the reasonable value of the use and occupation thereof to the time when the warrant was issued” (Code Civ. Pro. § 2253) and the right of action for damages caused by the breach of the prior tenant’s covenant to surrender the premises at the expiration of his term survived the summary proceedings. See Livingston v. Robb, 61 Misc. Rep. 81; Vernon v. Brown, 40 App. Div. 204; Phelan v. Kennedy, 185 id. 749.

The final order in the summary proceedings hitherto brought by the plaintiff constitutes an adjudication that as between this plaintiff and this defendant the plaintiff was entitled to the possession of the demised premises and even without such adjudication, it is well established “ that the tenant cannot be heard to say otherwise.” Eells v. Morse, supra. The plaintiff in this case having the right of possession as against the defendant holding over under his lease, must legally be entitled to recover for the use and occupation while he was kept out of such possession and since he was undoubtedly damaged in the amount of the rental which the second tenant was, under the terms of his lease, not required to pay to the plaintiff until possession of the premises was given to the second tenant, the plaintiff herein has the right to recover the amount of these damages against this defendant. Phelan v. Kennedy, supra.

On the other hand since the relation of landlord and tenant does not exist between the two tenants, it is evident that the second tenant cannot recover against the prior tenant for use and occupation and has not been damaged by the tenant’s failure to surrender possession of the premises without summary proceedings, for by the terms of his lease he specifically provided that rent under his lease “ shall not begin until possession of the space is given or available.”

The Court of Appeals in the case of Eells v. Morse, supra, has pointed out that its prior decision in the case of United Merchants Realty & Improvement Co. v. Roth, supra, is not in conflict with the rules of law which I have cited above and which, in my opinion, establish the right of the present plaintiff to recover against this defendant for the use and occupation of the premises for the period during which the defendant held over. Moreover since the lease between the plaintiff and the second tenant specifically provides that the rental shall not be paid until possession of the premises is given, and the landlord and not the new lessee is “ thus subjected to all the inconveniences and damage occasioned by the holding over,” the ground for the decision arrived at by the Court of Appeals in the case of United Merchants Realty & Improvement Co. v. Roth, supra, that the second tenant is entitled to the rights of a grantee provided for in section 193 of the Beal Property Law is lacking in this case.

"Judgment should, therefore, be reduced to the sum of fifty-six dollars and sixteen cents, with appropriate costs in the court below and as modified affirmed, without costs to either party.

Mullan, J., dissents.