Summary
In Congregation Anshe Sefard, the plaintiff had been evicted from its synagogue building by its landlord and sought to recover “personal property * * * of a religious character” that had remained in the synagogue after the eviction.
Summary of this case from Bhutani v. Barrington Bank & Trust Co.Opinion
Argued April 21, 1943
Decided July 20, 1943
Appeal from the Supreme Court, Appellate Division, Second Department, WENZEL, J.
Maurice Millimet and Samuel J. Nachwalter for appellant.
C. Elmer Spedick and Edward F. Kiernan, for respondent.
This is an appeal from a judgment of the Appellate Division, Second Department, entered upon a dismissal of the complaint at the close of the plaintiff's case.
The plaintiff had occupied premises on Keap Street in Brooklyn consisting of a synagogue building. The occupation was under a lease from defendant. A summary proceeding was instituted by defendant against the plaintiff because the latter held over after the expiration of the term. We shall disregard all the allegations and proof involving the summary proceeding and a collateral mandamus proceeding which resulted in a direction to the clerk of the Municipal Court to issue a warrant to remove plaintiff from the premises. The mandamus proceeding could not be collaterally attacked in this action. ( Haacke v. Marx, 210 App. Div. 248, affd. 240 N.Y. 568; Ashton v. City of Rochester, 133 N.Y. 187.)
Disregarding, then, those allegations, the situation, reduced to its simplest terms, is that plaintiff alleges ownership and possession of personal property of considerable value, of a religious character and used in connection with worship in the synagogue, retention thereof and demand therefor.
Proof of those allegations would establish a conversion. ( Lewis v. Ocean Navigation Pier Co., 125 N.Y. 341; Reich v. Cochran, 114 App. Div. 141; Ide v. Finn, 196 App. Div. 304. )
In Lewis v. Ocean Navigation and Pier Company ( supra) the tenant had the right to remove certain buildings after the expiration of his lease. He held over and was evicted through a summary proceeding. He was refused the opportunity to remove the buildings. This court said (p. 352): "The officers, who had the execution of the warrant of dispossession, refused to permit the plaintiff to remove the building, and this refusal was ratified by defendant, and the defendant still claims the right to retain it. The plaintiff again endeavored, after his dispossession, to remove the building, because of his being prevented by the agents of the defendant from removing it at the time he was dispossessed, but he was forbidden by the officers of the defendant from making any such attempt upon pain of instant arrest, and when he still made the attempt he was met and prevented by defendant from effecting the removal. The defendant has thus claimed the property as its own. It has refused to allow the plaintiff or his servants to remove it. The plaintiff was himself removed from the premises against his will by an officer with process, who refused to permit him to remove it. The claim and dominion made and exercised over the property by the defendant amounts to a conversion thereof."
The rule has also been enunciated in Reich v. Cochran ( 114 App. Div. 141) where it was pointed out that the landlord had no right to retain the hotel supplies of the tenant after he had dispossessed him. The court said (pp. 142-143): "The right to take possession under the writ to dispossess the tenant related, of course, only to the real property, and gave the owner no right to exercise dominion over it or to use or retain the personal property on the premises belonging to the tenant.
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"The goods in question were not abandoned by the tenant. They were not fixtures which belonged to the tenant and which he failed to remove. The doctrine of abandonment applies only to fixtures. ( Lewis v. O.N. P. Co., 125 N.Y. 341, 351.) As to ordinary chattels left upon the premises on removal or after eviction, it is the duty of the landlord to notify the tenant to remove them, and in case he does not, to himself cause their removal. ( Roberts v. Kain, 6 Robt. 354.)"
It is true that where a landlord must expend moneys for the removal of the goods of the tenant he may recover his reasonable expenses, on the theory of implied contract, since it is primarily the duty of the tenant to remove his own property ( Ide v. Finn, 196 App. Div. 304), but that rule even more clearly indicates that retention by the landlord of goods belonging to the tenant upon dispossession of the latter after demand by the tenant constitutes conversion.
Plaintiff made out a prima facie case of conversion and the judgment entered upon a dismissal of the complaint should be reversed and a new trial ordered on the issue of conversion only, with costs to appellant to abide the event.
The judgments should be reversed and a new trial granted, with costs to the appellant to abide the event. (See 291 N.Y. 669.)
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS and DESMOND, JJ., concur.
Judgments reversed, etc.