Opinion
November, 1908.
Henry Kuntz, for appellant.
Francis X. Kelly, for respondent.
Apart from the defense set forth in the answer to the petition in this proceeding to dispossess, it appears that the common lessor, a corporation, of the parties herein leased certain premises to one of them, Abraham Goldstein, for a term to commence August 1, 1904, and to end March, 1908; and that it leased the same premises to the other, Patrick Cullinan, for a term to commence March 1, 1908, and to end May 1, 1910. Upon the expiration of his term, Goldstein remained in possession and the petitioner, averring himself to be his landlord, etc., brought this proceeding to dispossess, on the ground that Goldstein was a hold over. The final order awarding the petitioner possession must be reversed, because, "to authorize a judgment to remove a tenant holding over, the conventional relation of landlord and tenant must exist" (Reich v. Cochran, 151 N.Y. 122, 126) and that must be by agreement, not by operation of law. Evertson v. Sutton, 5 Wend. 281. It has been held that a landlord may maintain dispossess proceedings after the expiration of a term, although he has leased the same premises to another to begin upon the expiration of the term of the person in possession (Goelet v. Roe, 14 Misc. 28); but it has not been held, apparently, that the incoming lessee may maintain such a proceeding. In Imbert v. Hallock, 23 How. Pr. 456, it appears to be held that the lessor is the only proper person under such circumstances to institute summary proceedings; and that decision was rendered in view of the provisions of the Revised Statutes (pt. 3, chap. 8, tit. 10), the source of the present provisions of section 2235 of the Code of Civil Procedure.
GILDERSLEEVE and SEABURY, JJ., concur.
Final order reversed, with costs.