November Realty Corp. v. McComb , 200 Misc. 433 ( 1951 )

Hammer, J.

On or about April 4, 1951, a marshal came to appellant’s furnished apartment with a warrant issued in this summary proceeding, to which appellant was not a party, without any notice to her, and proceeded against her protest to remove the furniture.

It would seem that the furniture has not been completely removed.

Leave to appeal from the order denying intervention has been granted by this court.

The final order in this proceeding was granted on the consent of the alleged tenant, Mrs. McComb.

This is the opening statement in the landlord’s brief under the heading of ‘ ‘ pacts ”: “ Tenant, Florence mccomb on August 20th, 1946 made a lease with the 905 Fifth Avenue Corporation, landlord’s predecessor in title for the period commencing September 25th, 1946 and expiring September 24th, 1947. This was for an unfurnished apartment. Simultaneously, Florence mccomb with the permission of the then landlord, made a lease for the same apartment, furnished, to rosemary bull, at a higher rent. The landlord retained the maximum rent. and remitted the difference to Florence mccomb. ’ ’

Upon the above facts Mrs. Bull was not a mere undertenant; she was the tenant of the apartment and has continued in possession as such tenant, paying the rent for the unfurnished apartment plus Mrs. McComb’s charge for the use of the furniture, to the landlord — $500 a month — ever since; and Mrs. McComb could not by her so-called consent as tenant authorize the maintenance of this summary proceeding by the landlord.

Incidentally it may be mentioned that under subdivision 2 of section 56 of the Rent and Eviction Regulations of the Temporary State Housing Rent Commission a landlord may not under a final order remove the tenant and his furniture unless he supplies the roomer with appropriate furniture to take its place.

Clearly entry by the landlord and removal of the furniture was unlawful.

The order denying intervention should be reversed, motion granted, and final order vacated.