
    Donelly v. O’Day.
    (New York Common Pleas—General Term,
    November, 1892.)
    The respondent went into possession of premises under a lease from one McArdle. The petitioner, out of possession, claimed the premises adversely to McArdle, and pending the term, and while in possession under McArdle, the respondent, without the consent of McArdle, attorned to the petitioner. Upon the trial of a summary proceeding for the removal of respondent for nonpayment of rent, held, that the attornment of the respondent to the petitioner was void, and that the conventional relation of landlord and tenant did not subsist thereby.
    Appeal from order of a District Court dismissing a summary proceeding for the removal of an alleged tenant for nonpayment of rent.
    The opinion states the case.
    
      Benjamim N. Cardozo, for petitioner (respondent).
    
      G. A. C. Barnett, for petitioner (appellant).
   Pryor, J.

Upon the return these facts appear, without contradiction: That respondent went into possession of the premises under a lease from McArdle; that the petitioner, out of possession, claimed the premises adversely to McArdle; that pending the term, and while in possession under McArdle, the respondent, without the consent of McArdle, attorned to the petitioner. The question is, whether the conventional relation of landlord and tenant subsisted between the parties to the proceedings.

To establish the relation, appellant relies upon the attornment. But, obviously and indisputably, the attornment was merely void (1 Rev. Stat. 744, § 3); and as such was inoperative for any and all purposes. OʼDonnell v. McIntyre, 37 Hun, 623, 626; Jackson v. Harper, 5 Wend. 246. In People v. Angel, 61 How. Pr. 157, the attornment was valid and effectual, and for that reason the order dismissing the proceeding was reversed.

Our own adjudication in Sperling v. Isaac, 13 Daly, 275, is explicitly in point, and conclusive of the case adversely to appellant.

Order affirmed, with costs.

Bischoff, J., concurs.

Order affirmed.  