Fong Ling v. Nathans , 204 A.D. 265 ( 1922 )

Kelby, J.:

It has long been a rule of law in this State that the usual covenants of title and quiet enjoyment in a lease mean that the landlord must have such a title as to enable him to give a free, unincumbered lease for the term demised. There is no warranty express or implied against the act of strangers; hence if a lessee be ousted by one who has no title, the law leaves the lessee to his remedy against the wrongdoer. But if a lessee is prevented from entering into possession by a person already in, under a paramount title, the lessee may sue the landlord; or if the landlord by his own act keeps out the tenant, the latter may sue the landlord. If the party holding is a wrongdoer or a stranger, the lessee has a remedy against him by action in ejectment. It is not the duty of the landlord to take the necessary steps to put the lessee in possession when the premises are held by a stranger who refuses to vacate. (Gardner v. Keteltas, 3 Hill, 330; United Merchants’ Realty & Imp. Co. v. Roth, 193 N. Y. 576.)

If the demised premises, therefore, had been held by the monthly tenants solely for business purposes, it would be clear under the authorities that the plaintiff could not maintain this action against the defendant.

But the monthly tenants were in possession for dwelling purposes, and at the time of the making of the lease the first group of the new Rent Laws (Laws of 1920, chaps. 134, 135,136,137, 139) were in force and had been in force since April 1, 1920. Under section 3 of chapter 137 of the Laws of 1920 the Municipal Court justice before whom the summary proceeding was tried stayed the issuance of the warrant to dispossess to March 31, 1921. Section 2 of chapter 137 provides:

“ § 2. Effect of petition. The presentation of a petition in such a proceeding [a hold-over proceeding] to a court, judge or justice having by law jurisdiction thereof shall be an election by the landlord to terminate the tenancy which might otherwise arise by operation of law.”

After the filing of the petition and upon the granting of the final order, the monthly tenants were strangers to the landlord’s title. The said tenants were not continued in possession by any grant of the landlord’s title, but occupied despite the landlord’s demands to vacate. They remained in possession perforce of the statute alone.

Both parties were chargeable with notice of the law. The law made performance impossible by allowing a discretionary stay of the warrant to dispossess.

The defendant cannot in good conscience keep the $300 paid by the plaintiff as rent in advance.

The judgment should be reversed on the law, with costs, and judgment awarded plaintiff for the sum of $300, with interest from the date of payment, with costs, pursuant to section 111 of the Civil Practice Act.

Blackmar, P. J., Rich, Jaycox and Manning, JJ., concur.

Judgment reversed on the law, with costs, and judgment unanimously awarded to plaintiff for the sum of $300, with interest from the date of payment, with costs, pursuant to section 111 of the Civil Practice Act. .....