LANDLORD AND TENANT - Continued.
13. Purchaser of property from landlord cannot, before taking
title, take advantage of a cancellation clause in the lease - Summary
proceedings. A six months' notice to a tenant to remove from the
premises by one not having title thereto does not operate to cancel
the lease or require the tenant to quit the premises. A lease
provided that if within five years from May 1, 1906, the tenant did
not exercise his privilege under the lease to tear down the building
and erect a new one in its place, the landlord should have the
right to cancel the lease upon giving a six months' written notice
effective at the expiration of the term and upon payment of a
certain sum of money. Neither of the parties took any action
under the lease. Held, that a six months' written notice to quit
given to the tenant by the landlord's grantee of the premises
prior to taking title, in its own name, was insufficient, and a final
order in a summary proceeding awarding said grantee possession
of the premises will be reversed on the ground of failure to give
the notice required by law. Broadway-Johns Street Corp. v.
Huyler's, 621.
14. Recovery of possession of apartment for use of landlord and
family-Demand must be in good faith-Laws of 1920, chap.
942. In a proceeding to recover possession of a tenant's apart-
ment on the ground that it was to be used forthwith for the
landlord and his family, the only condition imposed by the statute
(Laws of 1920, chap. 942) is that the demand for possession must
be made in good faith. A final order granting a motion to dismiss
the proceeding unless the landlord agreed to exchange apartments
with the tenant is unauthorized and will be reversed and a new
trial ordered. Dreyer v. Wiers, 629.
Option to purchase - When specific performance will not be
decreed. Where a lease provides that if at any time the lessor
decides "to sell the premises" the lessees shall have the preference
at such sale, specific performance of the option to purchase may
not be decreed in the absence of proof that the lessor ever decided
or had tried or offered to sell the premises. Lewis v. Ludlam, 347.
See Foreclosure; Landlord and Tenant.
See Executors and Administrators; Interest; Wills.
When writ will issue upon the application of a private citizen
requiring the mayor of a city to enforce section 26 of the Trans-
portation Corporations Law Transportation Corporations Law,
26-Second Class Cities Law, § 54- Public Service Commis-
sions Law, § 48, 56(2), 57, 58- Penal Law, § 29.- Where a
clear legal right exists and there is no other adequate remedy, a
writ of mandamus may issue in the discretion of the court. A
mandamus proceeding to enforce a right in which the general public
is interested, to wit, that the streets of a city shall remain un-
obstructed and unencumbered, may be maintained by a citizen and
resident of the city. Where it is made to appear that in the city
of Albany, for at least six weeks, more than 500 motor vehicle
lines of the character described in section 26 of the Transportation
Corporations Law, which in the interest of the public welfare
prohibits bus lines or any vehicles carrying passengers at a rate of
fare of fifteen cents or less for each passenger within the limits
of the city, have been and are now being unmolestingly operated
upon the public streets of the city without the consent of the local
authorities and without a certificate of public necessity and con-
venience from the public service commission, as required by said
section of the Transportation Corporations Law, and it further
appears the mayor of the city, one of whose duties under section
54 of the Second Class Cities Law is to see that the laws of the
state are executed, has openly and publicly announced his positive
refusal to perform such duty, a writ of mandamus. upon the
application of a citizen of the state who is also a resident of the
city, will be granted requiring the said mayor to direct the commis-
sioner of public safety, who is neither a proper nor necessary party
to the present proceeding, to enforce by action of the police depart-
ment of the city, the provisions of section 26 of the Transportation
Corporations Law. In such case, neither a direction of the public
service commission to its counsel to proceed under section 48 or
section 57 of the Public Service Commissions Law, which means
that each individual operating a jitney unlawfully must be pro-
ceeded against separately, or to conduct a summary proceeding in
the Supreme Court to have the unlawful act enjoined, can, in the
extraordinary situation presented here, be deemed an adequate
remedy. Violations of the provisions of section 26 of the Trans-
portation Corporations Law are punishable as misdemeanors, not
only under section 29 of the Penal Law but also under section
56(2) and section 58 of the Public Service Commissions Law.
People ex rel. Weatherwax v. Watt, 120.
Negligence When employer not liable for negligent act of
employee acting without the scope of his employment - Personal
intermeddling. While plaintiff, the regular operator of the freight
elevator in an office building, was waiting for the operator of the
passenger elevator to finish his shift at one o'clock, she was told
by the superintendent of the building to clean the hall, and while
so engaged a collector of packages for an express company requested
her to take him up in the freight elevator. While she went to
obtain the superintendent's permission to do so, the package_col-
lector entered the elevator and proceeded with it to the tenth floor,
and upon plaintiff's return, apparently finding the elevator in the
same position, she stepped into the vacant elevator shaft and was
injured. In an action against the express company, held, that in
the circumstances the package collector's use of the elevator was
not within the scope of his employment as an employee of the
defendant, but constituted personal intermeddling, and an order
setting aside a verdict in plaintiff's favor, as contrary to law, will
be affirmed, with leave to appeal to the Appellate Division. Besnar
v. American Railway Express Co., 515.
MECHANICS' LIENS.
See Mortgages.
1. Action to reform mortgage-Priority of mechanics' liens
Recording. The right to have a mortgage containing no descrip-
tion of the real property intended to be covered thereby reformed
in that particular, is subject to the rights under a mechanic's
lien filed against the property after the mortgage was recorded.
Schwartz v. Rappaport, 227.
2. Purchase money Foreclosure Infants Guardian ad
litem Laches.-After the commencement of an action to fore-
close a purchase money mortgage given by defendant, when she
was under eighteen years of age, upon a conveyance of real estate
to her by plaintiff, one to whom, between the commencement of the
action and the entry of judgment, defendant had conveyed the
premises under a trust agreement for her own benefit, took the
defendant to a reputable attorney who interposed in their behalf
an answer and the decision of the court on the trial of the issue
raised by the answer of said defendants was the basis of the judg-
ment of foreclosure and sale. Defendant having failed to inform
said attorney or any other of the interested parties that she was
not of age no guardian ad litem was appointed for her, and the
action proceeded as though she was an adult. She became of age
about a year after the judgment in foreclosure and nearly a year
and a half later brought an action to set aside the conveyance made
by her but the judgment therein rendered established that she was
indebted to her grantee in an amount which included the sum
advanced by him for the assignment to him of the foreclosure judg-
ment; that he held the premises in question for the benefit of plain-
tiff and that she was entitled to a reconveyance thereof upon pay-
ment by her of the sum so found due and owing, and it was specifi-
cally determined in and by said judgment that the mortgage in
question here was a valid obligation and that plaintiff, having elected
to retain the property, must pay its consideration. Held, that her
motion to vacate and set aside the judgment of foreclosure and for
leave to interpose an answer will be denied, and whether the failure
to appoint a guardian ad litem for her in the foreclosure action was
merely an irregularity or an error of fact not arising upon the trial,
was immaterial. The moving party having for nearly five years
after she, concededly, knew all the facts, engaged in constant effort
to claim the benefits and avoid the obligations of her contract, it
must be held that she, in attempting nearly seven years after she
became of age, to disaffirm the mortgage, did not act within a
reasonable time. Frankel v. Rubin, 566.
Examination of third person in supplementary proceedings unau-
thorized Void Municipal Court judgment— Municipal Court, city
of New York, Code, §§ 6(7), 129; Rule 9.- Where upon granting
a motion in the Municipal Court to restore a cause marked "reserved
generally" to the trial calendar as required by rule 9, Municipal
Court Rules, no formal order is made and entered, the defendant,
MOTIONS AND ORDERS
by not appearing on the day an inquest was taken, is neither guilty
of neglect or omission and is not in default. The judgment so ren-
dered in the absence of the defendant was therefore void, and an
order for the examination of a third person in proceedings supple-
mentary to execution issued upon the transcript of said judgment,
which was filed a year and four days after the original entry of
judgment, is unauthorized and will be vacated and set aside, even
though a motion by defendant under section 6(7) of the Municipal
Court Code, to vacate and set aside the judgment as unauthorized
and void, was denied on the ground that under section 129 of said
Code the motion should have been made within a year after the
original entry of judgment. Stoneware Electric Stove Works v.
Barrett, 605.
MUNICIPAL COURT CODE.
See Municipal Court Code cited, ante, p. xlvii.
MUNICIPAL CORPORATIONS.
See Bridges; Canal Law; Injunctions.
MUNICIPAL COURT OF CITY OF NEW YORK.
1. Jurisdiction- Seaman's wages · Ships and shipping — Judg-
ments. The Municipal Court of the city of New York has juris-
diction of an action brought by a seaman to recover wages, and an
order dismissing the complaint on the ground that the court had
not jurisdiction, and the judgment entered thereon, will be reversed
with leave to defendants to serve an answer. Danielsen v. Sigsbee,
Humphrey & Co., Inc., 184.
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2. Summary proceedings When order should be made before
justice before whom proceedings were instituted — Statutes — Laws
of 1920, chap. 942- Final warrant in "pending proceedings" can
only issue upon additional proof.- Orderly practice requires that a
motion to dismiss the petition in summary proceedings in the Munic-
ipal Court of the city of New York against a tenant as a holdover,
should be made before the justice before whom the proceeding was
instituted. While, therefore, pending procedings properly initiated
and sustained by proof sufficient to entitle the landlord to a final
warrant under the law as it existed at the time of the trial, may
proceed to the entry of the final order of removal, the final warrant
may not issue except upon additional proof. Upon the hearing in a
summary proceeding against a tenant as a holdover after the expira-
tion of his term, the landlord consented to give a lease for one
year from October 1, 1920, to each of the tenants in the building, at
such rental as the court should determine was reasonable, and, on the
theory that a final order was directed for the landlord, the testimony
was confined to matters relevant to the tenant's application for a
stay pursuant to chapter 137 of the Laws of 1920. The trial justice,
upon final submission of the case, and two days after chapter 942
of the Laws of 1920 went into effect, handed down an opinion in
which he found that the landlord was entitled to a rental from the
tenant herein in a certain sum per year. Held, that although the
petition did not allege the facts necessary to bring the landlord
MUNICIPAL COURT OF THE CITY OF NEW YORK - Cont'd.
within the exceptions mentioned in said chapter 942, the court was
without legal power to enter an order dismissing the proceedings,
and the order will be reversed and the motion to dismiss denied, with
costs of the motion. Levy v. Baum, 201.
3. Jurisdiction-Negligence - Ships and shipping - Municipal
Court Code, § 6.— Under section 6 of the Municipal Court Code,
the Municipal Court has jurisdiction of an action to recover for
personal injuries where the injury complained of occurred upon a
vessel in te navigable waters of the city of New York. La Rosa
v. Carter Weekes Stevedoring Co., 392.
See Appeal; Motions and Orders.
NEGLIGENCE.
See Master and Servant.
NEGOTIABLE INSTRUMENTS.
Check given for gambling debt void - Penal Law, § 993.— A
check given in payment of a gambling debt is utterly void under
section 993 of the Penal Law, and a judgment rendered in an action
thereon in favor of a holder in due course will be reversed and the
complaint dismissed, but with leave to appeal. Larschen v. Lantzes,
616.
See Bridges; Certiorari; Constitutional Law; Injunctions;
Jurisdiction; Taxes.
NEW YORK STATE.
See Highways.
NEXT OF KIN.
See Adoption.
Option for sale of real estate - When assignable · Lease
sideration- Personal Property Law, § 41- Code Civ. Pro. § 840.-
Though an option for the sale of real property, until accepted, is
not a contract for its sale, the op ion is assignable under section 41
of the Personal Property Law unless the parties by mutual agree-
ment otherwise provide. The fact that the option was contained
in a lease constitutes a good consideration for it, and, where a modifi-
cation of the option reducing the purchase price and reciting that
it was made in consideration of the original lease and the sum of
one dollar, is under seal, a consideration, under section 840 of the
Code of Civil Procedure, is presumed. Lewis v. Bollinger, 221.
See Real Property.
Oral agreement - Statute of Frauds Contracts- Considera-
tion.-A consent to the cancellation of an oral agreement for a three-
year partnership, given by one of the parties at the request of the
other, is a sufficient consideration for his promise to pay a certain
sum for such consent, and an action lies to recover any balance due
thereon. Pinner v. Leder, 512.
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