La Farge v. Park

1 Edm. Sel. Cas. 223

• Court: New York Circuit Court
• Decided: January 25, 1846
• Status: Published

Opinion

The Circuit Judge:

The action for use and occupation is founded, it is true, on the conventional relation of landlord and tenant. But it is not necessary 1 hat the agreement should be express. It may be implied. (Snith v. Stewart, 6 J. R. 46; Osgood v. Dewey, 13 id. 240; Abeel v. Radcliff, id. 297.) There could be no error then in iharging the jury that an agreement might be implied.

If the statute authorizing the immary proceedings had directed that they should be had only against the person who stood in the conventional relation of tenant to the plaintiff, there would be force in the objection that they would conclude him, for then those proceedings, L ving been taken against Mrs. Leman, would be inconsistent with the existence of the relation between the parties to this suit, on which alone it can be maintained. But such is not the statute. The summary proceedings may be had against the tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, and the assigns, under tenants or legal representatives of such tenant or lessee (2 R. S. 512, § 28), and they must be against the person in possession or claiming the possession (id. §§ 30, 32, 34), so that if the immediate tenant should underlet different parts of the demised premises to several persons for divers terms, the summary proceedings under this statute must be against the persons in possession, and not against the person between whom and the landlord the conventional relation may exist. The whole proceedings aim only at the possession, and are directed solely against him whose immediate occupancy interferes with the landlord’s claim.

If in this case there had been a written lease between the plaintiff and defendant, and the defendant had underlet to Mrs. L., so that defendant, as against Mrs. L., had no claim to the possession, the summary proceedings could not have been taken against the defendant, but must have been taken against Mrs. L., because she alone was in possession or claimed the possession. They could not, therefore, be justly regarded as evidence that the plaintiff had elected Mrs. L. as his tenant, and had concluded himself thereby. And that would be even a stronger case for the defendant than that now under consideration.

If, then, the plaintiff was not concluded by those proceedings, the whole question in the case was one of fact for the jury which it was very proper for me to leave to them, particularly under the conflicting evidence in the case, and whether one part of the evidence was of a higher character than another, was peculiarly the province of the jury to determine. They found that the conventional relation did exist between these parties, and whatever I might think of their finding, I cannot, on that account, on a bill of exceptions, disturb their verdict.

Motion for new trial denied.