Williams v. Alt

Merrell, J.: This is an appeal by the administrator of the estate of Thomas Mook, deceased, and the remaindermen in certain real property situate at 313 Third avenue in the city of New York, from a determination of the Appellate Term of the Supreme Court, First Department, affirming a final order in summary proceedings instituted in Municipal Court of the City of New York for the dispossession of William A. F. Alt, occupant of said premises, said order of the Municipal Court dismissing said summary proceedings. The only question involved upon this appeal is whether summary proceedings, under the Code, will he to oust the occupant from the possession of said real property. The occupant lawfully entered upon the possession of said premises under a lease made July 9, 1914, for the period of ten years beginning May 1, 1915, by one Henry R. Mook, the life tenant in said premises under the last will and testament of one Thomas Mook, deceased. By the terms of said will the premises in question were devised to thé testator’s son, the said Henry R. Mook, and his wife, during their joint — 237 — lives, with the remainder therein over to the heirs at.law of said testator in case of the death of the said Henry R. Mook without leaving lawful issue. At the time of testator’s decease, Henry R. Mook was married to one Helen Poole Mook, who thereafter died in 1910. Subsequently, on November 23, 1914, said Henry R. Mook remarried to one Jennie D. Mook, who now claims an estate for life in said real property, under the will of said Thomas Mook, deceased. To such claim and its influence upon the question presented upon this appeal, I will advert a little later. Henry R. Mook died on February 24, 1917, leaving no issue,- and at the time of his death the respondent herein was an occupant of said premises under said lease of the life tenant. After the death of said Henry R. Mook, the petitioners herein, the administrator with the will annexed of the estate of Thomas Mook, deceased, and the heirs at law of said decedent, served notice upon said occupant to vacate the premises. He failed to do so, and the petitioners instituted summary proceedings for his removal and for the removal of others occupying said premises, without the permission of the petitioners. The respondent appeared in said proceedings and answered the petition denying substantially all of the allegations thereof, except that the respondent admitted that he occupied the premises without the permission of the petitioners. Upon such pleadings a precept was issued in the usual form, requiring the occupants forthwith to remove from the premises in question or show cause before the Municipal Court of the City of New York why the possession of said premises should not be awarded to the said petitioners. Upon the day set for the trial of the issues raised by the pleadings the occupant made default, and an order was made awarding possession of the premises to the petitioners. Subsequently the occupant moved to vacate said order and to open his default, and to dismiss the proceeding. Thereupon an order was made opening the default and vacating the order of dispossession theretofore granted, and directing a new trial. Upon a rehearing the order was made by the Municipal Court from which the appeal was taken to the Appellate Term. As before stated, the question involved on said motion and on this appeal is as to whether or not, under the facts, — 238 — summary proceedings will lie to dispossess the occupants of said premises. At the time of leasing the premises to William A. F. Alt the lessor, Henry R. Mook, owned a life estate therein, and had the right to lease the same. Unquestionably the ten-year lease which said life tenant had given the respondent terminated immediately upon the death of the lessor. Prior to and until the death of the life tenant the respondent was lawfully in the possession of the premises under said lease. Refusing to yield possession of the premises to the petitioners after the death of the life tenant, the occupant became a trespasser, and he thereby became liable to an action by the persons entitled to the possession of the premises for the full value of the profits received during his wrongful occupation. The status of the respondent is fixed by section 1664 of the Code of Civil Procedure, which provides as follows: “A person in possession of real property, as guardian or trustee for an infant, or having an estate determinable upon one or more lives, who holds over and continues in possession, after the determination of his trust or particular estate, without the express consent of the person then immediately entitled, is a trespasser.” The owners, appellants, contend that they may invoke summary proceedings to recover the possession of said real property, pursuant to the provisions and practice provided by sections 2231 and 2232 of the Code of Civil Procedure. A reading of section 2231 convinces me that the owners can have no right to institute landlord and tenant proceedings thereunder. The respondent is neither a tenant nor a lessee at will, nor is he a tenant at sufferance within the provisions of said section. Section 1664 of the Code, quoted above, makes the occupant of real property under such circumstances a trespasser, and, if so, he cannot be a tenant at sufferance or otherwise. As was stated in Livingston v. Tanner (14 N. Y. 64, 68): “ As the statute in express terms makes the person holding over, in this identical case, a trespasser, it is impossible that the defendant could have been a tenant at sufferance.” And at page 70: “It is enough that the law adjudges the defendant, while he is thus holding over, to be a trespasser. Being a trespasser, there can be no privity — 239 — and no semblance of the relation of landlord and tenant between him and the plaintiff.” (See, also, Torrey v. Torrey, 14 N. Y. 430; Cleveland v. Crawford, 7 Hun, 616, 621.) A proceeding for the summary removal of a tenant wrongfully holding the possession of real property is now purely statutory, and unless the petitioners are able to bring the facts within the statutory provisions, the proceeding will not lie. The law is well settled that a summary proceeding for the recovery of real property in this State can only be taken where the conventional relation of landlord and tenant exists. Such relation is not shown to exist as between the present owners of the real property and the occupants. In certain cases of trespass, it is true, the proceeding will he, but those cases are specifically mentioned in the Code provisions. The petitioners maintain their right to institute these proceedings under the provisions of subdivision 4 of section 2232 of the Code of Civil Procedure. That subdivision provides as follows: “ Where he, or the person to whom he has succeeded, has intruded into, or squatted upon, any real property, without the permission of the person entitled to the possession thereof, and the occupancy, thus commenced, has continued without permission from the latter; or, after a permission given by him has been revoked, and notice of the revocation given to the person or persons to be removed.” Under the facts of the present case that subdivision has no application. Subdivision 4 of section 2232 relates to a person who has intruded into or squatted upon the real property without the permission of the person entitled to the possession thereof, and the occupancy thus commenced has continued without permission of the persons entitled to the possession thereof. Surely the occupant of these premises did not intrude into or squat thereon, nor was the present occupancy commenced through intrusion or squatting upon the premises. An “intruder” is defined by the Century Dictionary as “ One who intrudes; one who thrusts himself in, or enters where he has no right or is not welcome.” And, by the same authority, the term “ squatter,” in the sense used in the statute, is defined as: “ One who or that which assumes domiciliary rights without a title.” — 240 — While Alt is continuing in possession of the premises without the permission of the present owners, who are now entitled to possession, he did not commence his occupancy thereof by any unlawful or improper act, but received possession through a valid lease of the premises from the then owner. While it would seem that no precedent need be cited to support so plain a proposition and to demonstrate the futility of the appellants’ contention, the precise question has been passed upon a number of times and, so far as I know, where the question has been specifically raised, has uniformly been determined in harmony with the position of the respondent. (O’Donnell v. McIntyre, 41 Hun, 100; Matter of Stockwell v. Washburn, 59 Misc. Rep. 543; Commonwealth Mortgage Co. v. De Waltoff, 62 id. 639.) In the latter case, after stating the absence of the conventional relationship of landlord and tenant, Mr. Justice Seabuby said: “ Nor is it possible to sustain the petitioner’s right to maintain these proceedings under subdivision 4 of section 2232 of the Code of Civil Procedure. That provision of the statute relates to the dispossession of those who intrude into or squat upon real property without the permission of the person entitled to the possession thereof. It cannot be denied that these tenants entered upon the premises with the permission of the person entitled thereto.” (Lincoln Trust Co. v. Hutchinson, 65 Misc. Rep. 590.) The case of Barson v. Mulligan (198 N. Y. 23), cited by the appellants as authority for the proposition that a tenant of real property under such circumstances may be removed through summary proceedings, is not in point. The question here presented was not involved in the decision in Barson v. Mulligan, and the statement in the opinion in that case (p. 25) that summary proceedings would he to oust the lessee of a life tenant in possession after the death of the lessor, was clearly obiter dictum, and is not controlling. I am, therefore, of the opinion that the petitioners herein have utterly failed to bring the facts presented within the provisions of the. Code relative to obtaining possession of real property through summary proceedings. The whole difficulty lies in the fact that the conventional relation of landlord and tenant does not exist, and that, under the provisions of the — 241 — Code, the occupant is a trespasser, and that the cases provided by the Code where a trespasser may be removed through summary proceedings do not' embrace such an occupancy as that of the respondent herein. Undoubtedly the appellants are entitled to the possession of the premises, but they are relegated to an action in ejectment to obtain the same. Having reached such conclusion, it is unnecessary to consider the further position of the respondent, that, under the will of said Thomas Mook, deceased, the widow of the life tenant, Jennie D. Mook, is entitled to the possession of said real property during her lifetime. That matter was determined in Surrogate’s Court upon application by said widow of Henry R. Mook, deceased, to vacate the appointment of the plaintiff Harry C. Williams, as administrator with the will annexed of the estate of Thomas Mook, deceased, the surrogate holding that, under the provisions of said will, the wife of the son, Henry R. Mook, who was living at the time of the death of the testator, was referred to in said will as a devisee of a life estate in said real property, rather than the second wife of said son, whom he had married after the death of the wife who was living at testator’s decease. Such determination of the surrogate was affirmed in this court, and, I think, was decisive of-that question. But, upon the question of the right of the petitioners to maintain summary proceedings to oust the occupants .of the premises in question, I think the final determination of the Municipal Court is entirely sound, and that such proceedings were properly dismissed. The determination appealed from should be affirmed, with costs. Clarke, P. J., Dowling and Smith, JJ., concurred; Laughlin, J., dissented.