Kasower v. Sandler

96 N.Y.S. 734

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 27, 1905
• Status: Published

Opinion

SCOTT, P. J.

This is an appeal from a final order in favor of the tenant in hold-over proceedings. The allegation is that the tenant, Sandler, holds over and continues in possession of a basement directly under the corner of Rivington and Orchard streets, after the expiration of a lease which expired May 1, 1905. The answer is that he is entitled to hold over under a new lease. The facts are as follows: On April 27, 1900, one Sender Jarmulowsky, being the owner of the premises at the corner of Rivington and Orchard streets, known as “No. 78 to 84 Rivington Street,” leased the entire premises to one Nathan Michaelson for a term expiring May 1, 1905. On September .29, 1902, Michaelson leased to one Meller for the term of two years ending May 1, 1905, the store at the northwest corner of Rivington and Orchard streets, “said store being the corner store together with the basement under the said store.” On May 12, 1903, Meller sublet to the present respondent Sandler “a certain basement under the store known as 84 Rivington street,” being, of course, the basement rented by Michaelson to Meller and described as the basement under the corner store. So far as Sandler’s right to possession depended upon these leases it expired May 1, 1905. He claims, however, under another set of leases. It appears that after the appellant, Kasower, became the owner of the premises, and on October 21, 1904, he leased, for a term of three years from May 1, 1905, to one Samuel Deutchman “all of the certain basement adjoining the corner basement of the building known by the number 141 and 143 Orchard street”; this being concededly the same building, which was also known as “Nos. 78 to 84 Rivington Street.” On October 28, 1904, Deutchman leasedthe same premises by the same description to the respondent Sandler for the same term. Sandler’s position is that the premises covered by the first chain of leases therein described as the “basement under the corner store” are identically the same premises as those covered by the second chain of leases, and therein described as the “basement adjoining the corner basement,” and this raises the only question involved in the proceeding. On the face of the leases it would seem that the description could scarcely be intended to apply to the same basement. It appears from the evidence that there are a number of basements under the building, two of them being on the Orchard street side; the tenant occupying the one on the corner, and the other one being next to it, and further from Rivington street.

There were a number of errors committed during the trial in the admission of evidence. Deutchman was permitted to testify that the lease to him from the landlord reférred to. the same premises then occupied by Sandler; i. e., the corner basement. This was merely a conclusion of the witness, and, even if evidence could properly be received to explain what was meant by the description in the lease, this evidence was clearly incompetent. So, also, there was permitted to be introduced the record of a hold-over proceeding for the possession of the corner basement, brought by one Rothman under a lease from the landlord, against this tenant in which the final order went in favor of the tenant. The landlord, although a witness, was not a party to the proceeding, and as between him and this respondent the final order in that proceeding was not res adjudicata. Letters addressed to the landlord by the attorney for the petitioner in that proceeding were allowed to be read as evidence’in favor of the tenant, although their irrelevancy in this proceeding was clear. A petition in summary proceedings against this tenant for nonpayment of rent was introduced, but this made rather for the landlord than for the tenant; for the rent demanded was not for the corner basement, but for the basement adjoining the corner basement. As the record stands, the tenant claims the right to hold the corner basement under a lease covering the basement adjoining the corner, and there is ample evidence that there is a basement other than the one occupied by this tenant answering this 'description. We are not prepared to hold that the “corner basement” and the “basement adjoining the corner” mean the same thing, unless the tenant in a proper action can obtain a decree reforming the lease under which he holds, or can show acts of the landlord after the making of the. lease to Deutchman recognizing the identity of the basements.

The final order must be reversed, and a new trial granted, with costs to the landlord appellant to abide the event. All concur.