Young v. Lucas

1 A.D.2d 754, 147 N.Y.S.2d 218, 1955 N.Y. App. Div. LEXIS 3665

Opinion

— Judgment reversed on the law and facts and a new trial, granted, with costs to the appellants to abide the event. Memorandum: The tenant in a summary proceeding paid the full amount of the rent as determined to be due in the final order plus the costs to the Justice of the Peace. The Justice subsequently turned the money over to the landlord and thereafter issued a dispossess warrant which was executed by a constable. The warrant under such circumstances is a nullity (Civ. Prac. Act, § 1435; People ex rel. Kilgallon v. Nuhn, 92 Misc. 312, affd. 173 App. Div. 895; Matter of Flewwellin v. Lent, 91 App. Div. 430; Matter of Ehrlich v. Cassidy, 243 App. Div. 786). A landlord at whose instance a void warrant to dispossess is issued and executed may become liable in trespass for money damages sustained by the tenant. The constable, however, may rely upon the apparent validity of the warrant unless he is apprised of its invalidity. This record, as we view it, presents a question of fact as to whether the landlord procured the issuance of the void warrant and participated in its execution. It also presents a question of fact as to whether the constable who executed the warrant did so with the knowledge of its invalidity. All concur. (Appeal from a judgment of Erie Trial Term for defendants for no cause of action, by direction of the court, in an action for damages for unlawful eviction and for property damage to plaintiffs’ personal property.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.