Donelly v. O'Day

20 N.Y.S. 688, 1 Misc. 165, 48 N.Y. St. Rep. 709

Opinion

Pryor, J.

Upon the return, these facts appear, without contradiction: That respondent went into possession of the premises under a lease from McArdle; that the petitioner, out of possession, claimed the premises adversely to McArdle; that pending the term, and while in possession under McArdle, the respondent, without the consent of McArdle, attorned to the petitioner. The question is whether the conventional relation of landlord and tenant subsisted between the parties to the proceedings. To establish the relation, appellant relies upon the attornment. But, obviously and indisputably, the "attornment was merely void, (1 Rev. St. p. 744, § 3,) and, as such, was inoperative for any and all purposes, (O'Donnell v. McIntyre, 37 Hun, 623, 626;. Jackson v. Harper, 5 Wend. 246.) In People v. Angel, 61 How. Pr. 157, the attornment was valid and effectual, and for that reason the order dismissing the proceeding was reversed. Our own adjudication in .Sperling v. Isaacs, 13 Daly, 275, is explicitly in point, and conclusive of the case adversely to appellant. Order affirmed, with costs.