MANDO V. KITCHELL et al.

(Supreme Court, Appellate Division, Second Department. May 7, 1909.) 1. LANDLORD AND TENANT (§ 303*)-PETITION TO REMOVE Tenant and UNDERTENANTS-REQUISITES AND SUFFICIENCY.

As Code Civ. Proc. §§ 2231, provided that a "tenant" and his "undertenants" may be removed when "he" holds over without permission, and by section 2235 the petition need not state more, a petition for removal of a tenant and undertenants need not allege that undertenants held over "without permission of the landlord."

[Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 303.*] 2. LANDLORD and Tenant (§ 303*)~PETITION TO REMOVE Tenant and Under TENANTS-REQUISITES AND SUFFICIENCY.

A petition to remove a tenant and undertenants, alleging that the premises are in occupation of the tenant and undertenants is specific enough, against objection that it did not show under whom an undertenant was such or who his landlord was.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 1303-1309; Dec. Dig. & 303.*1

3. LANDLORD AND TENANT (§ 305*)-ACTION FOR REMOVAL-FRIVOLOUS AN

SWER.

In an action to remove a tenant and undertenants, an undertenant's answer denied that the landlord owned the premises and that he was a tenant of the tenant, and there was no denial of the allegation that the rent was demanded, but only that it was demanded "according to law," and, as to the allegation that she and undertenants were in possession, it alleged that the tenant "vacated” the premises a year ago. Held, that there was no error in striking out or disregarding such answer, as it raised no issue, and was therefore frivolous.

[Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 305.*] Woodward and Rich, JJ., dissenting.

Appeal from Nassau County Court.

Action by Albert F. Mando against Lauretta H. Kitchell and others, in justice's court, to remove defendants as tenant and undertenants holding over after default in payment of rent. On appeal to the County Court by William L. Kitchell, one of the undertenants, from a final order of the justice for removal, the order was reversed, and plaintiff appeals. Order of reversal reversed, and the final order of the justice affirmed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

G. L. Rohan, for appellant.

Lincoln B. Haskin, for respondent.

GAYNOR, J. The tenant did not appeal from the final order of the justice, but only one of the three undertenants, William L. Kitchell. The reversal of the said final order was erroneous. The justice properly denied the motion of the said undertenant to dismiss the petition for not alleging facts sufficient. The petition was not required. to allege that the undertenants held over "without the permission of the landlord." That requirement is only in respect of the tenant. Code Civ. Proc. § 2231. The provision is that a "tenant" and his "undertenants" may be removed when "he," i. e., the tenant, holds over with'For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

out such permission, and the petition did not need to state more. Section 2235. Only the tenant holds over as to the landlord. The undertenant holds over as to his landlord, viz., the tenant, and the lease between them.

The other objection to the sufficiency of the petition, viz., that it does not show under whom the said undertenant was such, or who his landlord was, is also unfounded. The petition sets out the written lease to the tenant, and alleges that the premises are in the occupation of the said tenant "and William L. Kitchell, George W. Kitchell and G. C. Kitchell, undertenants." This is specific enough, unless the spirit of verbal technicality is to be permitted to run altogether afield. It is a short statement that one person named is tenant and the others undertenants. Of whom could they be undertenants except of the tenant? The landlord may often not be able to grade or classify the undertenants, and there is no requirement that he should do so. The first undertenant named here may have hired of the tenant, the second one of the first, and the third of the second, but they are all undertenants. Nor did the justice err in striking out or disregarding the said undertenant's answer. It raised no issue and was therefore frivolous. The denial that the landlord owned the premises was of an immaterial fact. There was no denial of the allegation that the rent was demanded, but only that it was demanded "according to law"-a legal conclusion and negative pregnant. The allegation that the tenant "vacated" the premises a year ago was no denial of the allegation that she and the undertenants were in possession. Their physical possession under her would be her legal possession. The denial that he was the tenant of the tenant was not a denial that he was an undertenant-he might have hired of an undertenant.

The order of reversal should be reversed, and the final order affirmed.

Order of the County Court of Nassau county reversed, with $10 costs and disbursements, and final order of the justice's court affirmed, with costs.

JENKS and BURR, JJ., concur.

WOODWARD, J. (dissenting). This special proceeding was instituted against Lauretta H. Kitchell, tenant, and William L. Kitchell, George W. Kitchell, and G. C. Kitchell Optical Company, Incorporated, undertenants, for the nonpayment of rent, and was tried before Charles F. Gittens, justice of the peace, at Hempstead, resulting in a judgment in favor of the landlord, not alone against the tenant, but against the undertenants, for removal and $8.80 costs. From this judgment William L. Kitchell, undertenant, appealed to the County Court, where the judgment was reversed, and from the judgment and order of the County Court the landlord appeals to this court.

I am of the opinion that the petition was defective, and failed to give jurisdiction of the undertenants, because it does not show under whom William L. Kitchell or George C. Kitchell Optical Company, Incorpo

does not allege that William L. Kitchell (among others) holds over without the consent of the said Albert F. Mando," the landlord. These questions were raised by a motion to dismiss the petition before the justice, which motion was denied, and it is now urged by the landlord that the respondent and other undertenants were not necessary parties, as they had no legal right upon the premises. Assuming, without deciding, that this is true, yet he did make them parties, and the judgment of the justice's court is against them for removal and for costs. He cannot be permitted to say that they were not proper parties, where he has elected to bring them in, and still hold on to a judgment of removal, with costs, against them. The judgment is, therefore, properly reversed.

The judgment and order appealed from should be affirmed, with

costs.

RICH, J., concurs.

TUCHFELD v. PLATTNER et al.

(Supreme Court, Appellate Term. May 7, 1909.)

TRIAL (29*)—CONDUCT OF TRIAL-ATTITUDE OF Judge.

A manifestly hostile attitude by the trial judge toward defendants' counsel, both in the conduct of the trial and in the instructions, was necessarily prejudicial to defendants.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 83; Dec. Dig. § 29.*] Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Samuel Tuchfeld against Carrie Plattner and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

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

Peter Klein, for appellants.

Lester W. Eisenberg, for respondent.

DAYTON, J. The testimony strongly indicates that plaintiff and Cantor, old friends, were endeavoring to outswear defendants. Price had talked with Cantor about this transaction a year before plaintiff appeared on the scene. After the proposed sale fell through Cantor recovered the $100 from Price in an action. The record in that action was not produced, although the trial judge sent for it.

As to Cantor's "readiness," the story he tells of having $5,150 in bills on his person on the day of closing is in several respects self-contradictory and on the whole improbable. He paid the $100 by his check. He did not exhibit or tender the $5,150, nor explain why he did not have a certified check for the amount. The reason for the failure of the agreement (which was not produced) would seem to have been that Cantor would not accept an assignment of the lease, but inFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

sisted upon its cancellation and a new lease. Plaintiff failed to establish a cause of action by a preponderance of credible testimony.

Aside from this, the trial court excluded several questions on crossexamination which were properly asked, and the exceptions to such rulings were well taken. The attitude of the trial judge toward defendants' counsel was manifestly hostile, both in the conduct of the trial and in his charge to the jury. This could not be otherwise than prejudicial to the defendants.

The judgment should be reversed, and a new trial ordered, with costs to appellants to abide the event.

GILDERSLEEVE, P. J., and GOFF, J., concur in the result.

FEIST V. GRIVAS et al.

(Supreme Court, Appellate Term. May 7, 1909.)

LANDLORD AND TENANT (§ 186*)-RENT-LIABILITY.

Lessees, having had the use and occupation of the premises for a month, were liable for a month's rent, though it was agreed that, if they could not lawfully use the premises for a certain purpose, the deposit made by them on account of the rent should be returned, and the authorities prevented such use of the premises.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 760; Dec. Dig. § 186.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Simon Feist against Constantin Grivas and another. Judgment for defendants, and plaintiff appeals. Reversed, and new trial ordered.

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

Julius J. Michael, for appellant.
William V. Zipser, for respondents.

PER CURIAM. On December 9, 1908, the parties entered into an agreement by which defendants were to hire a store on plaintiff's premises, and defendants paid plaintiff $50 and received the following receipt:

"New York, Dec. 9, 1908.

"Received from Constantin and James Grivas fifty dollars as deposit on store in house 689 Amsterdam avenue. Rent to be $1,200 per year, commencing Jan. 1st. Balance of first month's rent must be paid before moving in. Lease for three years. Deposit to be returned if it is against the law to have a moving picture show. Simon Feist, Owner."

Thereafter, and on the following day-i. e., on the 10th day of December, 1908-a formal lease was made in writing between the parties of the said premises for three years at $1,200 per year, in which lease was a provision as follows:

"And said parties of the second part [defendants] further covenant and agree to use said rented premises only for moving pictures business, in accordance with law."

The lease, however, omitted the provision in the receipt, above quoted, to the effect, practically, that the contract was to be void if the defendants were not allowed to have a moving picture show, although, as we have seen, it did provide that the premises were to be used only for a moving picture show. Defendants entered into possession under said lease, and put in a moving picture show. Thereafter, and on January 14, 1909, defendants received the following letter from the chief of the bureau of licenses:"

"I hereby inform you that District Superintendent of Schools A. T. Schauffler strongly objects to the establishment of a moving picture show directly opposite public school No. 93. In view of the character of his objections, in my judgment, his objections should be sustained, and therefore I inform you that your application for a license for the premises at 689 Amsterdam avenue is denied."

Defendants paid the rent for the month of January, but moved out of the premises before February 1st, and definitely abandoned the premises, refusing to pay any more rent. Plaintiff here sues for the February rent. The defendants claim that it was particularly agreed between the parties that the premises were to be used only for moving pictures, and that, if defendants were not allowed so to do by the authorities, the lease was to become void; and defendants further claim that upon being so prevented from having a moving picture show they surrendered the premises to plaintiff and gave up the keys to him before February 1st. The defendants also claim that it was further agreed between the parties that, if defendants were not allowed to have such moving picture show, plaintiff was to return the $100 paid by defendants to plaintiff on said lease, which sum has been demanded and refused, and defendants counterclaim $100. The court gave judgment for defendants, dismissing the complaint, and allowing the counterclaim, with costs. Plaintiff appeals.

Inasmuch as the defendants had use and occupation of the premises for one month, plaintiff was clearly entitled to the $100 already paid. Whether or not it can be said that in view of the wording of the lease, with regard to the premises being used "only" for moving pictures, the contract can be held not to be so complete on its face as to prohibit oral evidence in explanation thereof, so as to render the testimony as to the agreement to cancel the lease in case of the refusal of the authorities to permit moving pictures admissible, not to vary, but to explain, the incomplete provisions of the contract, need not now be determined, as a new trial is necessary for the reason above stated. The same is true with regard to the question as to whether or not defendants established a surrender and acceptance, and as to the other issues in the case.

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