Davis v. Bonds

Appellate Terms of the Supreme Court of New York

Davis v. Bonds

61 Misc. 2d 917, 307 N.Y.S.2d 392, 1969 N.Y. Misc. LEXIS 1086

Appellate Terms of the Supreme Court of New York·Decided November 12, 1969·Published

Opinion

Per Curiam.

In the absence of a judicial determination that the prime lease was terminated, or absent proof that the sub-lessor had abandoned the premises, it was improper to dismiss the sublessor’s nonpayment proceedings against the subtenants. (Bruder v. Geisler, 47 Misc. 370 [App. Term]; Bone v. Coppola, 45 Misc. 636; 34 N. Y. Jur., Landlord and Tenant, § 269.)

Upon a new trial there should be a fuller development of the proof with respect to the affirmative defense of cancellation. In this connection, the subtenants may be well advised to implead the prime landlord as a third-party defendant.

The judgment should be unanimously reversed, without costs, and a new trial ordered.

Groat, P. J., Schwartzwald and Margbtt, JJ., concur.

Judgment reversed, etc.

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Per Curiam.

In the absence of a judicial determination that the prime lease was terminated, or absent proof that the sub-lessor had abandoned the premises, it was improper to dismiss the sublessor’s nonpayment proceedings against the subtenants. (Bruder v. Geisler, 47 Misc. 370 [App. Term]; Bone v. Coppola, 45 Misc. 636; 34 N. Y. Jur., Landlord and Tenant, § 269.)

Upon a new trial there should be a fuller development of the proof with respect to the affirmative defense of cancellation. In this connection, the subtenants may be well advised to implead the prime landlord as a third-party defendant.

The judgment should be unanimously reversed, without costs, and a new trial ordered.

Groat, P. J., Schwartzwald and Margbtt, JJ., concur.

Judgment reversed, etc.

Davis v. Bonds, 61 Misc. 2d 917, 307 N.Y.S.2d 392, 1969 N.Y. Misc. LEXIS 1086 (N.Y. Ct. App. 1969).

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Opinion

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