Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

It was error of the trial justice to strike out the statements of defendant's agent as to the loss of the watch. In a case of this character, where the rights of the parties are apparent, technicalities should not be permitted to override true justice. This remark also applies to defendant's suggestion that this action is brought in conversion and that no amendment has been asked. Defendant failed to move for a dismissal on that ground.

We are of opinion that the trial justice erred in his ruling, and that the judgment must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

ISRAELSON et al. 5. WOLLENBERG.

(Supreme Court, Appellate Term. May 7, 1909.) 1. LANDLORD AND TENANT (20*) -LEASES-ESSENTIALS.

To constitute a lease the essentials of a contract must be present, and there must be an offer and an acceptance of the terms of the offer.

(Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $ 53:

Dec. Dig. $ 20.*] 2. EVIDENCE ($ 431*)— PRESUMPTIONS-SEAL ON INSTRUMENT.

A seal attached to an instrument is but presumptive evidence of regu. larity, and will not prevent the court from receiving evidence to show that no contract was in fact entered into.

(Ed. Note.-For other cases, see Evidence, Cent. Dig. $ 1976; Dec. Dig.

§ 431.*] 3. LANDLORD AND TENANT (825*)— EXISTENCE OF RELATION.

Where the tenant changed the lease by adding a clause permitting him to display a sign at the front of his apartment, after the landlord had refused to insert such a stipulation, and the landlord, on receiving the lease from the tenant, refused to sign it, but permitted the tenant to occupy the premises on the payment of the monthly rent stipulated for, there was no valid lease.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $ 67;

Dec. Dig. § 25.*] 4. LANDLORD AND TENANT (8 118*)-TENANCY AT WILL.

Where one goes into possession of land under an invalid lease, bis tenancy at its inception is a tenancy at will.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. $ 408;

Dec. Dig. $ 118.*] 5. LANDLORD AND TENANT (8 115*)-TENANCY FROM MONTH TO MONTH.

Where one goes into possession of land under an invalid lease and pays a monthly rent, he becomes a tenant from month to month.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $ 391; Dec. Dig. $ 115.*] Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Jacob Israelson and others against Julius Wollenberg, From a judgment for plaintiffs, defendant appeals. Modified and affirmed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Morrison & Schiff, for appellant.
Anton Gronich, for respondents.

PER CURIAM. This is an action to recover an unpaid balance due under a lease alleged to have been executed by defendant as tenant. A recovery for the full term was allowed by the trial justice, and the only question presented is whether the lease received in evidence ever had any inception. The following state of facts would seem to be corroborated by the plaintiffs' own testimony:

Defendant, a musician, agreed to lease an apartment from plaintiffs at $45 a month. He requested that the landlord permit him to display a sign at the front of his apartment and to alter the terms of the lease that it might so read. Plaintiffs declined to do the latter, as they would then be unable to regulate the style of sign which defendant should use; but plaintiffs promised to make some verbal arrangement. He then handed a prepared lease to defendant, which contained a provision forbidding the display of any sign, except by permission of the landlord. This lease defendant took to his lawyer, who changed the above section so that it read as a permission to display signs, which plaintiffs had already refused to permit as a part of the lease. Defendant then signed the lease as altered by his attorney, returned it to the landlord, and subsequently took possession of the premises. The landlord refused to sign the altered lease, but permitted defendant to occupy the premises for 1312 months, during which he paid rent monthly. Defendant moved out on or about June 15th. The lease purports to run until the 1st of October following, and plaintiffs seek to recover the rent for June, July, August, and September, for which no rent was paid.

It is essential for the formation of a lease that all the essentials of a contract must be present. The very first requisite is that there must be a meeting of the minds—an offer, and an acceptance in the terms of that offer. That there was no such agreement here is showr by the testimony of plaintiff himself, who seeks to uphold the validity of the lease. A seal is but presumptive evidence of regularity, and will not prevent this court from receiving evidence of the fact that no contract was in truth entered into. Further than that, the lease was executed by but one party, the defendant. Certainly no document bearing plaintiff's signature has been offered in evidence, and the testimony relating to any such is very vague. Under the circumstances it is impossible to find the elements of a valid contract, and it was error to permit a recovery under the paper in evidence.

It but remains to determine what relation, if any, existed between the parties to this action. The law upon this point is succinctly stated in 24 Cyc. p. 1039:

“Where one goes into possession of land under an invalid lease, his tenancy, at its inception, is a tenancy at will."

See, also, 24 Cyc. p. 1040.

By paying a monthly rent defendant, then, became a tenant from month to month. 24 Cyc. p. 1034, B, 2; Id. p. 1035, b. This is the only legal construction which the facts will permit.

Judgment modified, by reducing the same to the sum of $45 and appropriate costs in the court below, and, as modified, affirmed, without costs of this appeal to either party.

MINSKY V. WELLER et al.

(Supreme Court, Appellate Term. May 7, 1909.) 1. LANDLORD AND TENANT (8 303*)-SUMMARY PROCEEDINGS-JURISDICTION.

As a prerequisite to the exercise of jurisdiction in summary proceedings, every requirement of the statute must be strictly observed and every essential affirmatively alleged.

[Eā. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $

1303; Dec. Dig. $ 303.*] 2. LANDLORD AND TENANT (8 303*)_SUMMABY PROCEEDINGS-SUFFICIENCY OF

PETITION—FACTORY"--"TENANT FACTORY."

Labor Law (Laws 1906, p. 303, c. 178) $ 94, as amended by Laws 1908, p. 1217, c. 426, provides that the lessee or tenant of any part of a tenant factory shall permit the owner, etc., to enter upon the premises whenever necessary to comply with provisions of law, and his failure or refusal to do so shall be cause for dispossessing as provided in the Code of Civil Procedure, and whenever by the terms of a lease any lessee or tenant shall have agreed to comply with or carry out any of such provisions his failure or refusal so to do shall be cause for dispossessing him by summary proceedings. The Code of Civil Procedure does not mention the labor law or any of its provisions as a cause for dispossessing a tepant. Labor Law (Laws 1897, p. 462, c. 415) $ 2, defines the term "factory." Section 94, as amended by Laws 1908, p. 1217, c. 426, defines a "tenant factory.” All the powers under the act which are given to the Commissioner of Labor or those acting under his authority to prescribe regulations or require alterations and improvements have reference to the factory or the tenant factory. Held that, as the power of the Commissioner of Labor is derived solely from the statute, summary proceedings under the labor law for noncompliance with requirements of the commissioner can only be instituted against the tenant of a factory or tenant factory, and a petition in such a proceeding describing the premises by street number and location, but silent as to the character of the building or the uses to which it was put, was fatally defective, and did not give the Municipal Court jurisdiction.

[Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. $ 303.*] Appeal from Municipal Court, Borough of Manhattan, First District.

Summary proceedings by Louis Minsky, as agent of Esther Minsky and another, landlords, against Joseph Weller and others, tenants. Judgment for the tenants, and the landlords appeal. Affirmed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Matthias Radin, for appellants.
Goldfogle, Cohn & Lind, for respondents.

GOFF, J. At the threshold there is presented the question: Does the petition state facts sufficient to warrant the Municipal Court assuming jurisdiction? It is now firmly established by the law as an inflexible rule that as a prerequisite to the exercise of jurisdiction in

summary proceedings every requirement of the statute must be strictly observed. Nothing can be taken by implication, but every essential must be affirmatively alleged. The statute under which petitioner proceeded is known as the "Labor Law" (Laws 1897, p. 461, c. 415). Section 94 (Laws 1906, p. 303, c. 178), as amended by section 2, c. 426, p. 1217, of the Laws of 1908, contains this language:

“The lessee or tenant of any part of a tenant factory shall permit the owner, his agents and servants to enter and remain upon the demised premises whenever and so long as may be necessary to comply with the provisions of law,

* and his failure or refusal so to do, shall be a cause for dispossessing * as provided in the Code of Civil Procedure. And whenever by the terms of a lease any lessee or tenant shall have agreed to comply with or carry out any of such provisions, his failure or refusal so to do, sbal be a cause for dispossessing said tenant by summary proceedings.”

In the latter sentence the words "any of such provisions” manifestly refer to and are governed by the words in the preceding sentence, “the provisions of law.” It then becomes necessary to ascertain what are "the provisions of law.” Examination of title 2 of the Civil Code relating to summary proceedings fails to disclose any mention of or reference to the labor law or any of its provisions as “a cause" for dispossessing a tenant. Recourse, therefore, must be had to the labor law for the cited "provisions of law." Section 2, defining terms, says: “The term 'factory'

shall be construed to include also any mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor."

Chapter 178 of the Laws of 1906, amended in 1908, added to the labor law a new section—94—quoted above which defines a "tenant factory" as:

"A building, separate parts of which are occupied and used by different persons, companies or corporations, and one or more of which parts is so used

as to constitute a factory.” All the powers under the act which are given to the Commissioner of Labor or those acting under his authority to prescribe regulations or require alterations and improvements have reference to the factory or the tenant factory. His power is derived solely from the statute. . He cannot interfere with or exercise any supervision whatever over any building or premises, or the tenant of such, except the factory building or premises defined and described by the statute. It follows that summary proceedings to dispossess for noncompliance with the requirements of the Commissioner of Labor can only be instituted against the tenant of a factory or tenant factory, and that fact must be affirmatively alleged in the petition; for without it the court could not acquire jurisdiction. This petition describes the premises by street number and location, but is absolutely silent as to the character of the building or the uses to which it is put. For all that appears it may be a hotel or a private residence. In such case would the Commissioner of Labor have the power to require the alterations or prescribe the regulations set forth? Clearly not. It is essential to the validity of any notice or order given to or served upon the tenant that it related to his tenancy of a factory, and it is equally essential that

the petition should set forth that the building or premises occupied by the tenant is a factory or tenant factory.

The petition is fatally defective, and the judgment of the Municipal Court should be affirmed, with costs to respondents. All concur.

BROADWAY BLDG. CO. v. FERGUSSON et al.

(Supreme Court, Appellate Term. May 7, 1909.) 1. LANDLORD AND TENANT (8 115*)—LEASES-CONSTRUCTION-TENANCY FROM

MONTI TO MONTH.

Where, after tenants had leased a suite of rooms in a building, the landlord agreed with them that they should exchange the suite selected for one of two others as soon as another tenant had made selection be tween them, and that meanwhile they should temporarily occupy a dif. ferent suite, the agreement did not bind them to remain in the suite temporarily furnished more than a reasonable time, and, they having paid a monthly rental in advance, their tenancy was at most a tenancy from month to month.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $3

391–394; Dec. Dig. $ 115.*] 2. LANDLORD AND TENANT (8 116*)—TENANCY FROM MONTH TO MONTH-NOTICE

TO TERMINATE.

A notice necessary to terminate a tenancy from month to month is one given within a reasonable time, and a notice given on July 21st by actually moving out was sufficient to terminate the tenancy on August 1st.

(Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $8 396-398; Dec. Dig. $ 116.*) Appeal from Municipal Court, Borough of Manhattan, First District.

Consolidated actions by the Broadway Building Company against Samuel W. Fergusson and another. Judgment for plaintiff in each case, and defendants appeal. Judgments reversed, and complaints dismissed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Walter H. Thatcher, for appellants.
Andrew Giihooly, for respondent.

PER CURIAM. These two actions, which were tried together, are for two separate installments of rent for the months of August and September, 1908, respectively. There is no dispute concerning the principal facts. By a lease between the parties, made April 13, 1908, the defendants agreed to rent from the plaintiff the suite of offices known as 506 in defendants' building, No. 170 Broadway, New York City, for one year from May 1, 1908, at the agreed price of $1,500 per annum, payable in equal monthly payments in advance. Possession of this suite was never given to defendants. The president of the plaintiff corporation, finding that he could rent that suite (506) to a prospective tenant who would have that or nothing else in the build

« ΠροηγούμενηΣυνέχεια »