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

Appellate Terms of the Supreme Court of New York·Decided January 8, 1925·Published·Cited by 7 cases

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] had 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.

Free access — add to your briefcase to read the full text and ask questions with AI

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] had 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.

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

Pincite

124 Misc. 367 (Frazier v. Cropsey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related