Page images
PDF
EPUB

Shaw v. McCarty.

in a court of which the judge or justice is the presiding officer, and with like effect, except as otherwise prescribed by the next two sections. Section 2261 prescribes that an appeal cannot be taken to the court of appeals from a final determination of the general term of the supreme court or of a superior city court upon such an appeal, unless the latter court, by an order made at the general term where the final order is made, or the next general term thereafter, allows it to be taken. These sections clearly indicate the intention upon the part of the Legislature, instead of allowing landlord and tenant proceedings to be reviewed as before the adoption of the Code of Civil Procedure by certiorari, to assimilate the practice in proceeding for a review of a final order made in those cases and the proceedings upon an appeal from a judgment.

Section 2261, in requiring in all cases a certificate of the general term in order to entitle a party to appeal to the court of appeals, might at first seem to make a different regulation from what exists in reference to appeals from judgments.

However, upon a consideration of the question, it will be remembered that no appeal can be taken to the court of appeals-even from the supreme court, general term, or the general term of a superior city court― in cases where the amount involved does not exceed $500, unless such appeal is permitted by such general term.*

In landlord and tenant proceedings there is nothing upon the record which can possibly show that $500 is involved; therefore the provision is inserted that no appeal shall be taken in such cases to the court of appeals unless upon an order of the general term affirming such appeal. The fact that the singular number is used in section 2260 in speaking of the court to

*Code, $191, subdivision 3.

Shaw v. McCarty.

which appeals may be taken, will not and should not prevent this court from giving to the section that construction which it is evident that the Legislature intended-viz., to provide for a uniform practice in reference to appeals in landlord and tenant proceedings and judgments, and to make them in all respects similar. If this construction is not given to the section in question, this anomaly is presented: that in the case of a landlord and tenant proceeding commenced in a district court an appeal may be taken to the court of appeals by and with the consent of the general term of the court of common pleas; but in case of a landlord and tenant proceeding commenced in the marine court, no appeal can be taken to the court of appeals under any circumstances whatever. Such a peculiarity in the law could not have been intended by the Legislature, and this court should not give such a construction to the section in question unless absolutely required so to do by its language.

We are, therefore, of opinion that an appeal lies to the general term of this court from the general term of the marine court in landlord and tenant proceedings.

The next question to be considered is, whether such proceedings may be instituted for a violation of the provisions of section 1 of chapter 583 of the Laws of 1873, where such violation has ceased before the application is made. Section 1 of chapter 583 of the Laws of 1873 provides as follows: "Whenever the lessee or occupant other than the owner of any building or premises shall use or occupy the same or any part thereof for any illegal trade, manufacture or other business, the lease or agreement for the letting or occupancy of such building or premises shall thereupon become void, and the landlord of such lessee or occupant may enter upon the premises so let or occupied, and shall have the same remedies to recover posses

Shaw v. McCarty.

sion thereof as are given by law in the case of a tenant holding over after the expiration of his lease."

The last clause of this section, "and shall have the same remedies to recover possession thereof as are given by law in the case of a tenant holding over after the expiration of his lease," is expressly repealed by chapter 245 of the Laws of 1880. So far then, as the provisions of the Laws of 1873 are concerned, in the cases in section 1 of said chapter 583, the lease is declared void, and the landlord has a right to re-enter, which he may do by his action of ejectment at law; and this is the only remedy which he has to enforce his right of re-entry under the section in question. Section 2231 of the Code of Civil Procedure states the cases in which summary proceedings for the possession of lands may be instituted; and the fourth subdivision provides that a tenant may be removed where the demised premises or any part thereof are used or occupied as a bawdy house or a house of assignation for lewd persons, or for any illegal trade or manufacture or other illegal business.

The fact that the last clause of section 1 of chapter 583 of the Laws of 1873 was repealed in connection with the passage of the section in question, is significant, because, by the Laws of 1873, summary proceedings might be instituted at any time after the violation of the provisions of those laws. By section 2231 of the Code of Civil Procedure, if the violation of the law has ceased prior to the application for the warrant, no proceedings for the summary removal of the tenant can be taken, but the landlord is remitted to his action for ejectment to obtain possession of the premises in case the lease has been voided by the action of the tenant; and there seems to be a good reason for this distinction, because the landlord, if he wishes to avail himself of summary proceedings, must act at once, and if he does not act at once he cannot avail himself

Machen v. Lamar Ins. Co.

of those proceedings, but must proceed in the more orderly way by an action for ejectment.

This seems to have been clearly the intention of the Legislature in framing the acts in question, and the change of phraseology and the change of rights thereunder cannot have been the result of mere accident. It seems to be, therefore, reasonably clear that although the landlord has his action of ejectment for a violation of section 1 of chapter 583 of the Laws of 1873, he cannot avail himself of the provisions of the Code in reference to summary proceedings, unless he acts while the premises are being used or occupied for the illegal business complained of.

We are of the opinion, therefore, that the construction of the statute given by the general term of the marine court was correct, and that the judgment of reversal appealed from must be affirmed with costs.

C. P. DALY, C. J., and BEACH, J., concur.

MACHEN, RESPONDENT, LAMAR INSURANCE COMPANY, APPELLANT.

COURT OF APPEALS, APRIL, 1882.

§ 1003.

Exceptions.-New trial.- Common law actions.

The rule of law applicable to the granting of new trials by appellate courts for errors committed in the admission or rejection of evidence upon the trial of actions at common law has not been changed by section 1003 of the Code. This section has no application to exceptions taken upon the trial of a common law action.

Appeal from judgment of the general term of the supreme court, fourth department, affirming judgment entered on the report of referee.

Machen v. Lamar Ins. Co.

The defendant issued a policy of insurance to respondent upon his wagon shop and cider mill, situate in the town of Van Buren in this State, whereby it insured him against loss or damage by fire to the amount of $1500, one-half of the amount being upon the building and the remainder distributed in different amounts upon various kinds of personal property. Other insurance was permitted and another policy for the same amount was issued at the same time on the same property, by the Manufacturers' Insurance Company.

The insured property was thereafter destroyed by fire and became almost a total loss.

The plaintiff brought this suit to recover on the policy issued to him by defendant. The case was tried before a referee, who reported in favor of plaintiff. The defendant appealed to general term, where the judgment was affirmed, whereupon it was appealed to the court of appeals.

Weed Munro (Hascock & Munro, attorneys), for appellant:

For an error upon the trial the judgment must be reversed, unless the prevailing party show affirmatively that the error could not possibly have affected the verdict; the burden of showing it is upon him. Green v. White, 37 N. Y. 405; Anderson v. R. W. & O. R. R. Co., 54 N. Y. 334; Wardell v. Hughes, 3 Wen. 418.

Section 1003, Code of Civil Procedure, applies only to equity cases. It has not altered the rule above cited. Schoonmaker v. Walford, 20 Hun, 166, 168; Foote v. Beecher, 78 N. Y. 155-158.

Hiscock, Glifford & Doheny, for respondents.

TRACY, J.-This action was brought upon defendant's policy of insurance against loss by fire to the

« PreviousContinue »