Donelly v. O'Day

New York Court of Common Pleas

Donelly v. O'Day

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

DecidedNovember 7, 1892

StatusPublished

This text of 20 N.Y.S. 688 (Donelly v. O'Day) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Donelly v. O'Day, 20 N.Y.S. 688, 1 Misc. 165, 48 N.Y. St. Rep. 709 (N.Y. Super. Ct. 1892).

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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.

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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.

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Bluebook (online)

20 N.Y.S. 688, 1 Misc. 165, 48 N.Y. St. Rep. 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donelly-v-oday-nyctcompl-1892.

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