Landon v. Board of Supervisors

31 N.Y. Sup. Ct. 75

• Court: New York Supreme Court
• Decided: January 15, 1881
• Status: Published

Opinion

Learned, P. J.:

The first question is, whether the court has power in any case to enjoin these proceedings. (2 R. S., 516, § 47.)

I think it has. The language in Sherman v. Wright (49 N. Y., ) implies that there are such eases. This is held in Capet v. Parker (3 Sandf., 662); Forrester v. Wilson (1 Duer, 624), and in some other cases. In many of the cases cited by the defendants the power was admitted but its exercise refused. Such is Springsteen v. Powers (3 Rob., 483). Sections 2265, subdivision 2, and 3347, subdivision 11, new Code, seem to indicate that the court has such power in a proper case.

It is not disputed that the defendants or the county are the owners of the land. Nor is it disputed that a tenant of the defendants placed on the land some buildings and that the plaintiff purchased that tenant’s rights. It seems to be admitted that the plaintiff has the right during the continuance of his lease to remove the buildings. The plaintiff urges that if he does not remove them during his possession he will lose them. (Brooks v. Galster, 51 Barb., 196; King v. Wilcomb, 7 id., 263.)

The plaintiff insists that a resolution of the board of supervisors was passed December 20, 1879, authorizing a committee to lease plaintiff the premises for one year, from May 1, 1880, at fifty dollars, of which he was notified. He thereupon paid fifty dollars to the county treasurer, of which the board was notified. This has not been repaid, but is retained by the county.

It appears that there are two matters in conflict in this respect; the one whether such a resolution was actually passed, the other whether the fifty dollars paid by plaintiff was rent for a year from May 1, 1880, or for the year ending that day.

Now it is undoubtedly true, as urged with great force by defendant’s counsel, that these matters present, if the plaintiff is correct, nothing but a legal defense to the summary proceedings; that if the plaintiff has no lease for a year from May 1, 1880, he has no rights whatever; if he has such a lease that will prevent a summary removal.

And this argument would be conclusive, if there were nothing involved here but the lease of the land. But that is not the case. The plaintiff has buildings on the lot alleged to be worth $1,200. These are his, but he must remove them while his possession remains. Under the belief that by the alleged resolution of the supervisors, and by his payment of the fifty dollars, he had obtained a right to remain in possession until May 1,1881, he has allowed the buildings to continue upon the premises. If by summary proceedings he Bhould be removed, he would lose these buildings and might not recover them even on a reversal of the order of removal.

If it should appear on the trial that the resolution supposed to have been passed had not been passed in fact, and if it should further appear that the fifty dollars must be applied on the rent for the year ending May 1,1880, still it would not be equitable that the plaintiff, having acted in good faith, should lose the buildings which belong to him. And we do not see how he could be protected in that respect under the summary proceedings.

We think, therefore, that the order should be affirmed, with ten dollars costs and printing disbursements.

Boabdman and Bocees, JJ., concurred.

Order affirmed, with ten dollars costs and printing disbursements.