
    Jeremiah O’Rourke, Resp’t, v. The Henry P. Cooper Company, impleaded with the Nippon Mercantile Company and others, App’lts.
    
      (New York Superior Court, General Term,
    
    
      May 2, 1887.)
    
    Landlord and tenant—When relation exists.
    A party is not entitled to recover rent from a sub-tenant where he does not hold the relation of landlord to the sub-tenants. See O’Bourke v. Brown, ante, 816.
    Appeal by defendant from judgment entered upon findings, etc., of judge at special term.
    
      George H. Forster, for app’lts; Wm. L. Flagg, for resp’t.
   Sedgwick, J.

The facts stated in the case of O’Bourke v. Brown, decided at this term, appeared in this action. It further appeared here that after the lease had been assigned to The Henry P. Cooper & Company, they sub-let to The Nippon Mercantile Company rooms in the building, reserving rent. ^ After the sale under execution to the plaintiff The Nippon Mercantile Company failed to pay rent, and The Henry P. Cooper & Company began dispossessory proceedings under the statute.

The justice ordered that a warrant of dispossession issue. Before it was issued, the proceedings under the warrant’ were stayed by order of injunction pendente lite made in’ this action.

The plaintiff in this action asked and obtained a judgment permanently enjoining the appellant. No other relief was asked against The Henry P. Cooper & Company. It was not asked that the plaintiff be put in possession of the premises, or that the plaintiff be adjudged entitled to the term assigned to The Henry P. Cooper & Company or to the sub-lease made by the latter to the The Nippon Mercantile Company. No legal action had been brought to determine the rights of the parties or to eject The Henry P. Cooper & Company, who were in possession of the term, adversely to the plaintiff claiming under the assignment that has been mentioned.

In O’Rourke v. Brown it has been held by this general term that the plaintiff was not entitled to recover rent from a sub-tenant because he did hot hold the relation of landlord to the sub-tenants.

The ground of that decision when applied to this case calls for a reversal of this judgment, for as long as Henry P. Cooper & Co. remained in possession of the lease or of the term under a transfer of the title to them, they were entitled to exercise all the rights that flow from a legal possession.

There is no differance in principle between the term for years and an estate in fee.

As they had such rights the plaintiff could not interfere with their exercise by injunction.

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

Freedman, J., concurs. 
      
       See ante, page 816.
     