
    William Wetterer, Landlord- Respondent, v. Andrew Soubirous, Tenant-Appellant.
    (Supreme Court, Appellate Term,
    February, 1898.)
    1. Summary proceedings — Eviction.
    An eviction is a defense to summary proceedings to recover the possession of premises for the nonpayment of rent.
    2. Excavations in the city of New York — Bights of licensee.
    
      Semble, that a licensee, of an adjoining owner of lands in the city of New York has, under the Consolidation Act (Laws of 1882, chap. 410, § 474), a right to maintain timbers which he has thrust through the basement wall of the adjoining owner, in order to make an excavation on his own lot, until the time when he has built up a new wall which will so support the wall of the adjoining .owner “ that it shall remain as stable as before the excavations were commenced.”
    3. Summary proceedings — Attornment.
    It is not necessary that a tenant should attorn to his landlord in order that the latter may maintain summary proceedings.
    4. Same — Ouster of jurisdiction by plea of title.
    The provisions of section 2956 of the Code of Civil Procedure, relative to the ouster of a justice’s jurisdiction upon the interposition of a plea of title, have no application to summary proceedings.
    Appeal by the tenant from a final order, in summary proceedings to recover the possession of real property for nonpayment of rent, made by the justice of the District Court in the city of Hew York for the sixth judicial district, in favor of the landlord, upon a trial had without a jury.
    The material facts are stated in the opinion.
    Horace A. Daws, for appellant.
    Rose & Putzel (Gibson Putzel, of counsel), for respondent.
   Giegerich, J.

These proceedings were based upon the nonpayment, after demand, of a monthly installment of rent alleged to be due from the tenant-respondent to the landlord-appellant on the 1st day of Hovember, 1895, under a written lease.of the house and premises known as Ho. 294 Sixth avenue in the city of Hew York, made and executed by John L. Tonnele, as trustee under the last will of John Tonnele, deceased, to the tenant-appellant, for the term of three years from May 1, 1891, at the yearly rental of $1,700, payable monthly in advance, and a written extension thereof from the'1st day of May, 1894. The petitioner-respondent, in his petition, ■ alleged that the lease was assigned to him. The allegation was. denied by the tenant-appellant in -his answer, in which he also averred that Gerson Siegel was his landlord, and, denying the other allegations of the petition, he set np an actual eviction from a part of the demised premises. While the latter defense is available in summary proceedings to recover the possession of demised premises for nonpayment of rent. (Hamilton v. Graybill, 19 Misc. Rep. 521), the same has not, in my opinion, been sustained. In July, 1897, it became necessary to make excavations for building purposes on the land, north of the demised premises, to a depth of more than ten feet, and one Patrick Horton, the contractor having charge of said excavating, entered upon the premises in question and inserted numerous needles or sticks of timber through the basement wall for the purpose of shoring up and holding it. in position, while he excavated for the foundation wall to be erected on the adjoining land.

It is. claimed by the tenant-appellant that, from the month of August, 1897, to the hearing of these proceedings, the northerly wall of the basement was. largely cut away and the floor. and doors blocked with timber; that in consequence of this the under-tenant occupying the basement abandoned the same and the tenant-appellant was deprived of the use thereof; all of which .acts, it is further insisted, constitute an actual eviction from a part of the demised premises.

There was, however, testimony adduced upon the trial which warranted the justice in finding (as is assumed from the final order), that the acts complained of were done by the!' said contractor under the express sanction of the tenant-appellant and the tenant who occupied the basement. But the tenant-appellant contends, furthermore, that, even, if license to enter the demised premises was granted, it was the duty of the petitioner’s assignor, Mr. Siegel, to proceed with reasonable dispatch and to perform the job in a good and workmanlike manner and with as little injury and inconvenience as póssiblé to the tenant-appellant and the under-tenant. This undoubtedly would have been his duty had he, at the time, been the owner" of the adjoining premises and caused the excavation to be made, but the record, to my mind, fails to show any such fact. Even assuming, but without so holding, that the evidence affords an inference that Mr. Siegel was such owner and the person who caused the excavation to be made, he nevertheless had the right, under said license, to proceed and build up the new wall so as to.sustain the northerly wall of the building upon the demised premises, and, for that purpose, had the right to enter upon so much of the tenant-appellant’s premises as was necessary, before he could be required to remove the needles from the same. Ketchum v. Newman, 116 N. Y. 422, 427. The foundation for the new wall was only in the course of erection at the time of "the hearing of these proceedings, and the licensee, therefore, could not be compelled to withdraw the needles from the wall of the demised premises; his right to maintain such, as we have seen, continued until he had built up a new wall which would sustain the northerly wall of the demised premises and so that the latter should “ remain as stable as before the excavations were commenced.” Laws of 1882, chap. 410, § 474. .

The tenant-appellant also claims that said Gerson Siegel, and not the petitioner-respondent, was the landlord of the premises in question when the rent was demanded and the proceedings were brought; but this contention is not supported by the evidence, from which it appears, on the contrary, that the lease was assigned by Mr. Siegel to the petitioner-respondent, prior to the time before mentioned, by an instrument in writing dated September 30, 1895. The petitioner-respondent was, therefore, the real party in interest, and whether or not he was a “ dummy,” as claimed, is of no moment. Sheridan v. Mayor, 68 N. Y. 30; Curran v. Weiss, 6 Misc. Rep. 138.

"Upon the trial, the petitioner-respondent offered in evidence an assignment of the lease, dated February 10, 1891, executed by John L. Tonneli, as trustee under the will of John Tonneli, deceased, together with a certificate of acknowledgment. This was ■ objected to by the tenant-appellant on the ground that thirty seconds prior thereto the paper had not been acknowledged. Counsel for the petitioner-respondent thereupon stated that the paper was all complete with the exception of the notary affixing the signature. He is in court here and will testify that he took the acknowledgment early this morning.” The justice overruled the objection, the paper was admitted in evidence, and the tenant-appellant noted an exception. There is nothing in this objection; for the acknowledgment of the execution of a written instrument may be made even after the action has been commenced and at -any time before it is actually offered in evidence. Holbrook v. New Jersey Zinc Co., 57 N. Y. 616, 624; Abbott’s Trial Evidence, 6.

It was not necessary, as claimed by the tenant-appellant, for him to attorn to the petitioner-respondent in order to have enabled the latter to maintain these proceedings. Sloane on Landlord & ..Tenant, 80. The written demands for the .payment of rent, which had become due on the 1st days of October and Hovember, 1897, respectively, and which were served upon the tenant-appellant on behalf of the petitioner-respondent, gave notice to him of the claim of the latter respecting the demised premises; and the fact that rent was due for the last-mentioned month of its nonpayment - was amply proven.

The tenant-appellant contends,, furthermore, that it appeared upon the trial, from the petitioner’s own showing, that the title to real property was', in question and was disputed by the tenant,, and hence that the complaint should have been dismissed pursuant to section 2956 of the Code of Civil Procedure. ■ The record fails to show that the tenant-appellant delivered to the justice an answer, or filed the undertaking required by section 2952, or that he claimed upon the trial that the title to real property was in question; but, even had he complied with all these prerequisites, the justice would hot have been ousted of jurisdiction, as the provisions of the Code, respecting the answer of title, are confined to actions and have no relation to summary proceedings. Matter of White, 12 Abb. N. C. 348; People ex rel. Baldwin v. Goldfogle, 23 Civ. Pro. 417. As was said by Mr. Justice O’Brien in the last cited case, “ The question in summary proceedings is, whether the relation of land-' lord and tenant exists. The question of title cannot arise, the one ' presented being as to the right to possession, and the decision simply determines who is entitled to the possession, and cannot in any way affect title to land.”-

Eor these reasons, to my mind, the final order appealed from, should be affirmed, with costs.

Beekmau, P. J., and G-ieoerioh, J., concur.

, Order affirmed, with costs.  