Frazier v. Cropsey

Appellate Terms of the Supreme Court of New York

Frazier v. Cropsey

124 Misc. 367, 207 N.Y.S. 803, 1925 N.Y. Misc. LEXIS 639

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 8, 1925

StatusPublished

Cited by7 cases

This text of 124 Misc. 367 (Frazier v. Cropsey) 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

Frazier v. Cropsey, 124 Misc. 367, 207 N.Y.S. 803, 1925 N.Y. Misc. LEXIS 639 (N.Y. Ct. App. 1925).

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Opinion

Per Curiam:

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. Supp. 506), affirmed by the Appellate Division (186 App. Div. 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 [368]*368had 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. Supp. 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.

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Per Curiam:

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. Supp. 506), affirmed by the Appellate Division (186 App. Div. 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 [368]*368had 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. Supp. 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.

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Bluebook (online)

124 Misc. 367, 207 N.Y.S. 803, 1925 N.Y. Misc. LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frazier-v-cropsey-nyappterm-1925.

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