Niman v. Niman

269 A.D. 675, 53 N.Y.S.2d 473, 1945 N.Y. App. Div. LEXIS 3212

Opinion

In an action for specific performance of an agreement to convey real property, after judgment a motion for an order in the nature of a writ of assistance to remove an occupant and place the owner in possession was denied. Order dated November 27, 1944, modified on the law by striking from the first ordering paragraph the following words “ Myron Kommel hereby appeals ”, and substituting in place thereof the words “ plaintiff and Myron Kommel hereby appeal.” As thus modified, the order is affirmed, without costs. The appeal from the order dated September 29, 1944, is dismissed, without costs. Resettled order dated October 30, 1944, affirmed, without costs. It appears without dispute that at the time of -entering into the lease agreement the respondent had knowledge that his lessor’s title was being attacked as subject to being defeated upon demand. The effect of the judgment in favor of plaintiff was to cut off any interest or estate of respondent in the realty. Under the provisions of section 985 of the Civil Practice Act the granting of a motion to give a party possession is discretionary. Under the facts in this case, and in view of the provisions of the Federal rent control regulations, the court is of the opinion that the denial of the motion was not an abuse of discretion. Close, P. J., Hagarty, Johnston, Adel and Lewis, JJ., concur.