Assembly, Inc. v. Giller

Appellate Terms of the Supreme Court of New York

Assembly, Inc. v. Giller

135 Misc. 542, 239 N.Y.S. 280, 1930 N.Y. Misc. LEXIS 978

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 22, 1930

StatusPublished

This text of 135 Misc. 542 (Assembly, Inc. v. Giller) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Assembly, Inc. v. Giller, 135 Misc. 542, 239 N.Y.S. 280, 1930 N.Y. Misc. LEXIS 978 (N.Y. Ct. App. 1930).

Pincite

Opinion

Per Curiam.

In this summary proceeding by sublessor against tenant for non-payment of rent it appears that prior to the trial, in a non-payment proceeding by the owner against the sublessor and subtenants, a final order was made in favor of the owner, with a stay of execution of the warrant until July first, the date of the trial of this proceeding. (The Assembly, Inc., v. Giller, 134 Misc. 657.) Under the circumstances, the relation of landlord and tenant between the parties having been terminated by the issuing of the warrant (Ash v. Purnell, 16 Daly, 189; Civ. Prac. Act, § 1434), a final order could not be awarded in favor of the sublessor, landlord herein, and as no such final order could be granted this landlord cannot have a judgment for the rent due. (Civ. Prac. Act, § 1425.)

It was error for the trial judge to award the tenant herein judgment for the deposit, for as long as the tenant remained in possession, in the absence of an attornment to the senior landlord, or payment by this tenant of the rent due by the sublessor to the owner, respondent was bound to pay rent to his landlord, and the amount of the rent exceeded the deposit.

Final order and judgment reversed and petition dismissed, without prejudice to the bringing of an appropriate action. '

All concur; present, Bijur, Lydon and Frankenthaler, JJ.

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Per Curiam.

In this summary proceeding by sublessor against tenant for non-payment of rent it appears that prior to the trial, in a non-payment proceeding by the owner against the sublessor and subtenants, a final order was made in favor of the owner, with a stay of execution of the warrant until July first, the date of the trial of this proceeding. (The Assembly, Inc., v. Giller, 134 Misc. 657.) Under the circumstances, the relation of landlord and tenant between the parties having been terminated by the issuing of the warrant (Ash v. Purnell, 16 Daly, 189; Civ. Prac. Act, § 1434), a final order could not be awarded in favor of the sublessor, landlord herein, and as no such final order could be granted this landlord cannot have a judgment for the rent due. (Civ. Prac. Act, § 1425.)

It was error for the trial judge to award the tenant herein judgment for the deposit, for as long as the tenant remained in possession, in the absence of an attornment to the senior landlord, or payment by this tenant of the rent due by the sublessor to the owner, respondent was bound to pay rent to his landlord, and the amount of the rent exceeded the deposit.

Final order and judgment reversed and petition dismissed, without prejudice to the bringing of an appropriate action. '

All concur; present, Bijur, Lydon and Frankenthaler, JJ.

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Bluebook (online)

135 Misc. 542, 239 N.Y.S. 280, 1930 N.Y. Misc. LEXIS 978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/assembly-inc-v-giller-nyappterm-1930.

Opinion

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