Opinion
January 8, 1925.
Charles Marks, for the appellant.
Austin Austin [ Edmund O. Austin of counsel], for the respondent.
The appellant Cropsey having commenced his occupancy with the permission of the tenant Leone, then entitled to possession, was not a squatter or an intruder within the provisions of subdivision 4 of section 1411 of the Civil Practice Act. The case of Williams v. Alt (170 N.Y.S. 506), affirmed by the Appellate Division ( 186 A.D. 235) and later by the Court of Appeals ( 226 N.Y. 283), is decisive of the question here involved, and the learned trial court was in error in submitting the case to the jury. Since it appeared that the appellant had "permission" of the tenant Leone to take occupancy, the question of whether the latter had breached his covenant against subletting was wholly immaterial. This court has held in an opinion written by SEABURY, J., that the statute in question cannot be availed of where occupancy was given by persons in possession under leases claimed to be wholly void. ( Commonwealth Mortgage Co. v. DeWaltoff, 115 N.Y.S. 1090, 1092.)
The final order is reversed, with thirty dollars costs, and petition dismissed, with costs.
All concur; present, GUY, O'MALLEY and LEVY, JJ.