Altschuler v. Lipschitz

BISCHOFF, J. The notice of appeal recites that the appeal is taken from “the judgment and order entered in the above-named court on the 30th day of July, 1908, * * * in favor of the above-named respondent and against the above-named appellant, for the possession of the premises mentioned and described in the petition”; and, since the order entered upon the denial of the tenant’s motion for a dismissal of the proceedings was not appealable, we shall assume that the appeal was -intended to be taken from the final order. Again, the adjudication appealed from is clearly identified by referring to it as “the judgment.” It is, in effect, the judgment rendered in the proceeding, and a mere technical misnomer of it should not be permitted to invalidate the appeal. The final order was not rendered upon the tenant’s default, and is therefore appealable. On the return day of the precept the tenant appeared, joined issue, and moved the dismissal of the proceeding for insufficiency of the petition. This motion was denied, and the cause was ordered to trial. Thereupon the landlord introduced proof of the facts alleged in the petition, the tenant standing mute, and the final order awarding possession of the demised premises followed. Resting upon his objection to the sufficiency of the facts as affording justification for a determination in the landlord’s favor, the tenant was not bound to go through the idle ceremony of a cross-examination or to do that which would have been more reprehensible, to dispute facts which he could not truthfully deny, in order to avoid a determination for the landlord upon his default. The ruling upon the tenant’s motion for dismissal was none the less a. ruling upon the trial because it was made before the landlord’s proof was taken. We are thus brought to a review of the final order appealed from upon the merits. [1060] A prior proceeding between the same parties for recovery of the possession of the premises for default in the payment of rent, in which the tenant pleaded that he had been induced to enter into the lease by the fraud of the landlord, the present petitioner’s predecessor in interest, resulted in an adjudication for the tenant. It is not readily conceivable how the tenant could have succeeded in his plea of a disaffirmance of the lease while he continued in the possession of the premises after his discovery of the fraud, but, since the present petitioner seems to have acquiesced in that determination and is concluded thereby, we must, for the purposes of the present review, regard the lease as invalidated. Such, also, appears to have been the theory upon which the petition in the court below proceeded; the petitioner alleging that upon the disaffirmance of the lease he had elected to regard the tenant as a trespasser. Were the tenant properly to be so regarded, summary proceedings to remove him would not lie. That such proceedings are maintainable only where the conventional relation of landlord and tenant exists, except in the cases specially provided for and of which this is not one (Code Civ. Proc. §§ 2231-2233), is a proposition so familiar and so well settled by past adjudications that reference to particular cases seems needless. Having entered into possession of the premises under a lease from the petitioner’s predecessor in interest, the tenancy upon the avoidance of the lease became one at will (Larned v. Wilson, 60 N. Y. 102; Talamo v. Spitzmiller, 120 N. Y. 37, 23 N. E. 980, 8 L. R. A. 221, 17 Am. St. Rep. 607), and was terminable by the landlord only upon his giving of a written notice to- the tenant of not less than 30 days, requiring the latter to remove from the premises. Real Property Law (Laws 1896, p. 590, c. 547, § 198). The fact of such a notice must be alleged in the petition for the tenant’s removal. Code Civ. Proc. § 2236. Until the tenancy is thus put an end to, the ténant cannot be said to hold over after the expiration of the term. Post v. Post, 14 Barb. 253, 257. Eor the reason that no such notice was alleged or proved the final order for the landlord was erroneously made and must be reversed with costs, and, since the circumstances negative the giving of any such notice, the proceedings should be dismissed, with costs. All concur.