Kenahan v. Fitzgerald

Appellate Terms of the Supreme Court of New York

Kenahan v. Fitzgerald

124 Misc. 506, 208 N.Y.S. 501, 1925 N.Y. Misc. LEXIS 681

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 27, 1925

StatusPublished

This text of 124 Misc. 506 (Kenahan v. Fitzgerald) 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

Kenahan v. Fitzgerald, 124 Misc. 506, 208 N.Y.S. 501, 1925 N.Y. Misc. LEXIS 681 (N.Y. Ct. App. 1925).

Pincite

Opinion

Per Curiam:

The plaintiff, landlord, appeals from a final order dismissing the proceeding brought by him to obtain possession of premises occupied by the defendant, tenant, for the immediate and personal occupancy of the landlord.

Plaintiff testified that he desired possession of the premises for his own use as a residence; that he at present lives with a married daughter in a house she inherited from her mother, and that he has boarded with said daughter ever since the death of his wife; that his daughter is “ suffering from nervous prostration and heart trouble and it is anything but pleasant for me to be trying to live there for the simple reason that she is not in condition to attend to me properly as I should, and that is the reason I want to go into my own home; ” that he desires to occupy the premises in question with a housekeeper.

On this proof the motion to dismiss the proceeding was granted on the ground that the facts did not bring the proceeding within the exception of the statute providing that “ Where the owner of record of the building, being a natural person, seeks in good faith to recover possession of the same, or of a room or rooms, therein, for the immediate and personal occupancy by himself and his family as a dwelling.” (See Civ. Prac. Act, § 1410, subd. 1-a, as aided by Laws of 1921, chap. 199.)

In Knowles v. Trash (App. Term, 2d Dept. Dec. 13, 1920) the plaintiff, landlord, a widow without children or dependents, who testified that she wanted to use her property as a boarding house, so as to make a living out of it, was held to come within the exception of the statute and entitled to recover her house.

The language of the statute should be reasonably interpreted. (See Lauer’s “ The Tenant and his Landlord,” 84, 85.)

The dismissal of the proceeding was error.

Final order reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, McCook and Proskauer, JJ.

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Per Curiam:

The plaintiff, landlord, appeals from a final order dismissing the proceeding brought by him to obtain possession of premises occupied by the defendant, tenant, for the immediate and personal occupancy of the landlord.

Plaintiff testified that he desired possession of the premises for his own use as a residence; that he at present lives with a married daughter in a house she inherited from her mother, and that he has boarded with said daughter ever since the death of his wife; that his daughter is “ suffering from nervous prostration and heart trouble and it is anything but pleasant for me to be trying to live there for the simple reason that she is not in condition to attend to me properly as I should, and that is the reason I want to go into my own home; ” that he desires to occupy the premises in question with a housekeeper.

On this proof the motion to dismiss the proceeding was granted on the ground that the facts did not bring the proceeding within the exception of the statute providing that “ Where the owner of record of the building, being a natural person, seeks in good faith to recover possession of the same, or of a room or rooms, therein, for the immediate and personal occupancy by himself and his family as a dwelling.” (See Civ. Prac. Act, § 1410, subd. 1-a, as aided by Laws of 1921, chap. 199.)

In Knowles v. Trash (App. Term, 2d Dept. Dec. 13, 1920) the plaintiff, landlord, a widow without children or dependents, who testified that she wanted to use her property as a boarding house, so as to make a living out of it, was held to come within the exception of the statute and entitled to recover her house.

The language of the statute should be reasonably interpreted. (See Lauer’s “ The Tenant and his Landlord,” 84, 85.)

The dismissal of the proceeding was error.

Final order reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, McCook and Proskauer, JJ.

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Bluebook (online)

124 Misc. 506, 208 N.Y.S. 501, 1925 N.Y. Misc. LEXIS 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenahan-v-fitzgerald-nyappterm-1925.