
    Mary I. Kelly, Resp’t, v. Elliott E. Smith, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 7, 1891.)
    
    1. Summary proceedings—Assignee oe landlord.
    To be an assignee of a landlord within § 2285 of the Code the party must hold the entire estate of the landlord in the term demised to the tenant against whom the proceeding is had.
    2. Same.
    One K., who was the lessee of certain premises for a term of years, sublet for the residue of the term to defendant, and thereafter assigned the sublease to plaintiff, but the lease to himself was not assigned. Held, that no estate in the premises or interest in the term was conveyed by the assignment, but only a right to the rents, which carried with it no title to maintain summary proceedings.
    Appeal from final order of a justice’s court in a summary proceeding awarding possession to respondent
    In 1885 Alfred Corning Clark, owner of the fee, let the premises to Thomas P. Kelly for a term of ten years; on 15th January, ■ 1891, Kelly sublet for the residue of the term to the appellant Smith; on 13th June, 1891, Kelly assigned the Smith lease to the respondent Mary I. Kelly, and she was the petitioning landlord in the proceeding. Kelly’s lease from Clark was not assigned to the respondent.
    
      A. Hamilton Reavey, for resp’t; Thomas G. Evans, for app’lt
   Pryor, J.

The contention of the appellant-is, that on the evidence the respondent sustained no such relation to the term or to the tenant as would give the court jurisdiction to entertain the proceeding, and that, therefore, there was error in denying the motion to dismiss it. The point presented appears to be without precedent; nevertheless, upon familiar principles, its solution is neither difficult nor doubtful.

Declaring the law as it had been ruled theretofore, and as it has been uniformly held since, in 1862 this court said: “ From the time the statute was passed authorizing summary proceedings for the recovery of the possession of land, to the present day, it has been uniformly held to be applicable only where it is shown that, as between the party applying for the summons and the party in possession, the conventional relation of landlord and tenant exists -created by agreement between them, and not by mere operation «of law. It can only be instituted when the party in possession has by some act or agreement recognized the other as his lessor or landlord, and takes upon himself the character of tenant, so that he is not at liberty afterwards to dispute his title.” Imbert v. Hallock, 23 How., 456, 461; Benjamin v. Benjamin, 5 N. Y., 383 ; People v. Simpson, 28 id., 55; People v. Howlett, 76 id., 574; Matter of Hosley, 56 Hun, 240; 30 St. Rep., 711.

It must appear that “ the applicant is entitled to the actual possession and that the occupant holds in opposition to his title.” People v. Andrews, 52 N. Y., 445. Here no tenancy by estoppel is pretended against the •mpellant; but the respondent founds her right to relief explicitly .. "Ausively upon the ground that “ the ■conventional relation of lan. A tenant, in the strict technical ¡sense,” exists between the respom... and appellant. Although there was no demise by the respondent to the appellant, yet, bv -express provision of the statute the proceeding may be maintained by “an assignee of the landlord,” Code, § 2235, and the respondent stakes her case upon the proposition that she is the assignee of appellant’s landlord. But, to be an assignee within the statute, she must “ hold the entire estate of the landlord in the term demised to the tenant against whom the proceeding is had.” Imbert v. Hallock, 23 How., 462.

It is evident, beyond controversy, that the respondent does not hold the entire estate of her assignor, Thomas P. Kelly, in the term demised to Smith ; nor, indeed, any interest in it whatsoever.

In Demarest v. Willard, 8 Cowen, 206, a lessor for a term, with covenants by the lessee to pay rent and leave in repair, made an endorsement on his lease assigning the rent and “ the within lease; ” and the court by Savage, Ch. J., said: “It was perfectly within the power of the plaintiff to have assigned the rent to one,, and the reversion to another; but he conveyed nothing besides the-rent, unless something more passed by the words ‘the within lease.’ If anything was intended more than the instrument itself, it must be the plaintiff’s interest in the premises during the term. I am satisfied that nothing more than the rent was assigned.

In Huerstel v. Lorillard, 6 Robt., 260, Lorillard demised to Hurlburt, and afterwards assigned to Huerstel “ the agreement of lease ” with Hurlburt, and “ all the right, title and interest therein and thereto, and to the rents, issues and profits arising and thereafter to arise during the whole term, and to the covenants and agreements therein contained.” Held by Mon ell, J., that “ beyond an assignment, the lessor does not transfer to the assignee any interest whatever in the demised estate; he simply sets over to the assignee the covenant of his tenant to pay the rent, and with it. the right to compel performance of such covenant by action, and he cannot resort to any measures to regain possession of the demised premises,” p. 262. On appeal, Robertson, Oh. J., at general term,, approved the doctrine thus enunciated by Mouell, J., 7 Robt., 267-

In the case before us, the lessee, Thomas P. Kelly, did not assign to the respondent the lease from his landlord, by which alone he held any title to the premises; but his assignment to the respondent was only of the “indenture of lease,” to .Smith, “ with all and singular the premises therein mentioned and described',, and the buildings thereon, together with the appurtenances.” On the authority of Demarest v. Willard and Huerstel v. Lorillard, supra, it would seem that by the assignment of Thomas P. Kelly to the respondent no estate in the premises or interest in the term was conveyed, but only a right to the rents; a right which, though enforceable by action, constitutes no title to maintain the present proceeding.

But, however that may be, and, however apt and explicit the phraseology in the assignment of Thomas P. Kelly to the respondent to convey an estate in the premises and an interest in the term,, it was inoperative and ineffectual to that purpose, for the obvious and all-sufficient reason that he then had no such estate or interest to transfer. For, by an instrument which, though in form a. lease, was in legal effect an assignment, Wood hull v. Rosenthal, 61 N. Y., 389, he had already conveyed to the appellant Smith all his interest in the term and al’ his estate in the premises. JS on dot qui non habet. Broom’s Maxims, 467.

As lessee of Clark, Thomas P. Kelly assigned his term to appellant Smith; and since he had no reversionary interest, this conveyance necessarily divested him of all his estate in the premises. .As lessor of Smith, Thomas P. Kelly assigned to the respondent whatever interest he had; namely, a bare right to receive the rents, a mere chose in action, which carried with it no claim to possession, and no title to maintain this proceeding. Authorities, supra.

The respondent having no right to institute the proceeding, the justice"should not have entertained it; and there was error in denying appellant’s motion to dismiss it.

It is probable, on the evidence, that the assignment to the respondent was fictitious and inoperative; and, also, that the appellant’s ,plea of payment was substantiated; but since, for the reason given, the order must be reversed, we forbear to consider other objections to it.

As appellant's term is to continue until 1st June, 1895, justice requires that it be restored to him.

Order reversed, and restitution directed, with costs.

Daly, Ch. J., and Bischoff, J., concur.  