
    Jacob Rothman, Appellant, v. Abraham Kosower, Respondent.
    (Supreme Court, Appellate Term,
    November, 1905.)
    Landlord and tenant — Landlord gave a second lease to third, person — First tenant’s action for damages.
    Where a landlord, before the commencement of the term of a lease to plaintiff, leases the premises to the assignor of a tenant in actual possession, by reason whereof plaintiff is deprived of his right to the enjoyment of possession, he is entitled to recover damages of the landlord as for a breach of contract to give the right of entry and enjoyment; and a complaint setting forth the facts states a cause of action.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the opening of the trial.
    ■ Benjamin F. Spellman, for appellant.
    Aaron H. Schwarz (Moses Feltenstein, of counsel), for respondent.
   Gildersleeve, J.

The plaintiff’s complaint was dismissed, at the opening of the trial, upon motion made by the defendant, and upon the ground that it did not state facts sufficient to constitute a cause of action. This is similar in effect to a demurrer upon those grounds and, therefore, all the allegations contained in the complaint must be taken as true. The complaint alleges, in substance, that on August 1, 1904, the plaintiff, by a written lease, executed by the parties, leased from the defendant certain premises in this city for the term of three years; the term to begin on May 1, 1905, the yearly rental being $420, payable monthly; and that plaintiff was required, by the terms of the lease, to, and did, deposit the sum of $140 as security for the faithful performance of the conditions of the lease. It also alleges the payment of the rent for the month of May, 1905, It further avers that, at the time the lease was executed, one Sandler was occupying the premises and that, upon attempting to obtain possession of said premises, on May 1, 1905, said Sandler was still in possession of said premises and claiming them by virtue of a lease executed by the defendant to one Deutschman, in October, 1904, and assigned by Deutschman to Sandler; this lease also being for the same term and to commence at the same time (May 1, 1905), as the lease given in August by the defendant to the plaintiff. It further alleges that demand for the possession of the premises was made upon the defendant; that, at the request of the defendant, the plaintiff instituted summary proceedings against Sandler, in a Municipal Court; that Sandler interposed an answer setting up the lease made by defendant to Deutschman, its assignment to Sandler with the consent of the defendant, the possession of the premises by Sandler -under and by virtue of such last-named lease, a trial in the Municipal Court of the issue thus raised, that defendant was present at such trial as a witness and, also, by his personal counsel; that the aforesaid trial resulted in the dismissal of plaintiff’s petition, upon the ground that Sandler was entitled to the possession of said premises, by virtue of the lease made by defendant to Deutschman and by him assigned, with the consent of defendant, to Sandler. And it also sets forth several items as constituting a basis for damages and asks a judgment for the sum deposited, the rent paid, and the damages sustained, etc. We fail to see why the complaint fails to state a cause of action. It is clear that the plaintiff was kept from enjoying the rights and privileges of his lease by the act of the landlord himself; and it has frequently been held that, in such a case, the plaintiff may resort to his action for damages. Trull v. Granger, 8 N. Y. 115; Sullivan v. Schmitt, 93 App. Div. 471; Smith v. Barber, 96 id. 236. Sandler was lawfully in possession of the premises and his right thereto was equal to that of the plaintiff; and he had acquired such right of possession, as well as the actual possession of the premises, by virtue of the lease given his assignor and taken from his assignor with the consent of the defendant. The plaintiff’s right to maintain summary proceedings against Sandler could only exist upon showing that the conventional relation of landlord and tenant existed between the latter and the plaintiff, and that Sandler wrongfully held possession. Neither of these conditions existed. In Goerl v. Damrauer, 27 Misc. Rep. 555, the lease given by the landlord to the defendant was to take effect September first. At the time of its execution the premises were occupied by a tenant. This tenant held over beyond the first of September; and by reason of the failure of the landlord to give the required notice, dispossess proceedings, begun in September, resulted in favor of the tenant. Subsequently, in October, the tenant was dispossessed, and the landlord requested the lessees to take possession which they refused to do. It was held, that it was necessary for the landlord to give the lessees the legal right of entry and enjoyment; that he had obligated himself to give legal possession on September first, and by “ His own acts, or rather his omission to act, in that he failed to give the statutory notice to Shivitz, defeated his right of entry and he could not confer on his lessees a right which he himself did not enjoy; and having violated his contract, the lessees were released of all liability under the lease, and never became the tenants of the respondent.” In the case at bar, the defendant, by his own act, defeated any right of the plaintiff to obtain possession of the premises; and the plaintiff’s remedy is against him, for breach of the contract to give the plaintiff the right of entry and enjoyment.

Scott and MacLean, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  