Opinion
March, 1908.
Max D. Josephson, for appellant.
Morris A. Tyng, for respondent.
The burden of this appeal is the alleged error of the court below in overruling the tenant's objection to its jurisdiction because of the insufficient statement of the petitioner's interest in the premises of which he claimed possession, as required by the Code of Civil Procedure, § 2235. The objection was clearly untenable.
The petition set forth that the petitioner entered into an agreement with the Waterson Law Amusement Company whereby he let to and the company hired the premises and for the use and occupation thereof promised to pay an annual rental of $15,000 in equal monthly advance payments of $1,250 each. That this allegation described the petitioner's interest as that of landlord, entitled to the reversion upon the tenant's default in his covenant to pay rent, seems irrefragable.
The Code of Civil Procedure (§ 2231) specifies the instances in which summary proceedings to recover the possession of land may be maintained, of which the tenant's holding over without the permission of the landlord, after a default in the payment of rent, is one, and particularly authorizes (§ 2235) the landlord to maintain the proceedings in such a case. The requirement of a description of the petitioner's interest in the premises obviously means no more than that the petition must present a case within these provisions, that is to say: it must appear that the petitioner's interest is that of landlord or lessor, a purchaser upon an execution or foreclosure sale, a person forcibly put out or kept out; a person with whom, as owner, the agreement to cultivate the property upon shares, or for a share of the crops, was made; the owner of such property, the person entitled to the possession of the property intruded into or squatted upon, as the case requires, or the legal representative, agent or assignee of the landlord, purchaser, or other person, so entitled to maintain the proceeding. One who has entered into possession of premises under an agreement to pay rent therefor is estopped from disputing his lessor's title. The latter's interest is, therefore, apparent from the agreement, and conclusively so; and the derivation of his title or right to make the lease is not requisite to the jurisdiction of the court. To that effect were the views of the court in Rowland v. Dillingham, 83 A.D. 156. There the petitioner described himself to be the agent of another, an executor, in whose behalf he had entered into a lease with the person sought to be removed from the premises; and it was held that this was a sufficient compliance with the Code requirement above alluded to.
The order appealed from should be affirmed, with costs.
GILDERSLEEVE and MacLEAN, JJ., concur.
Order affirmed, with costs.