Mahoney v. Hoffman

Bischoff, J. The appellant was an “ intruder ” or “ squatter ” within the meaning of section 2232 of the Code of Civil Procedure (subd. 4), and the final order awarding possession of the premises to the respondent should be affirmed. A right of possession was claimed by this appellant through assignments of a lease from the respondent — the owner — to one Elliott; but, by a warrant in dispossess proceedings for nonpayment of rent, this lease was terminated before the appellant’s occupancy began; and whatever rights he took under the assignment — made without the landlord’s consent and in violation of a covenant of the lease — came to an end. Code Civ. Pro., § 2253. His paper title, or claim of title, did not protect him, because it amounted to nothing; and, notwithstanding the assertion of an entry under color of title, these proceedings were maintainable. O’Donnell v. McIntyre, 41 Hun, l00; revd., 16 Abb. N. C. 84, cited for appellant; 3 McAdam Landl. & Ten. (3d ed.) 235. There is nothing to indicate that this defendant’s assumed right of possession was in any way saved from the termination of the lease to Elliott. He (the defendant) was not in possession; and his-rights, if any, were subject to immediate defeat through the tenant’s summary removal. Rubenstein v. Rosenthal, 50 Misc. Rep. 313. The fact that Buehler, a predecessor, who was in possession and was disturbed without being made a party to the dispossess proceedings, obtained a favorable order in forcible entry and detainer proceedings, does not strengthen the defendant’s rights, since there was no adjudication of title in Buehler, and the defendant came upon the premises, not as Buehler’s tenant with the same possession, but independently, as an assignee, who took only such an interest as could pass by assignment, which Buehler’s bare personal immunity from disturbance, while he remained in possession, was not. The final order should be affirmed, with costs. Gildeesleeve & MacLean¡ II., concur. Final order affirmed, with costs.