
    The Equitable Trust Company of New York, as Successor in the Trust by Merger Pursuant to the Laws of the State, of New York, to The Trust Company of America, as Executor and Trustee Under the Last Will and Testament of Josephine B. Chambers, Deceased, Appellant, v. John F. King, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Summary proceedings — landlord and tenant — action for rent — dispossession of tenant — jurisdiction.
    Where the assignee of a lease executed and left with the landlord a copy of the lease having the assignment indorsed thereon and his acceptance thereof and an assumption of all the covenants of the lease “in consideration of the approval of said assignment by the landlord,” and the copy lease with the consent of the landlord indorsed thereon was returned to the assignee who made no objection thereto or comment thereon, he is liable for the rent under the original lease.
    In an action for rent a final order theretofore granted in summary proceedings removing the tenant and an under tenant from the premises is conclusive upon the existence of the relation of landlord and tenant.
    Where, at the institution of summary proceeding's to dispossess a tenant, he claims possession of the premises but is not in possession, the court has jurisdiction.
    Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, entered after a trial by the court, a jury having been waived.
    Spencer, Ordway & Wierum (Otto C. Wierum, Jr., of counsel), for appellant.
    Morris Jacobs (Louis Kunen, of counsel), for respondent.
   Bijur, J.

Plaintiff, as successor by merger of the Trust Company of America, sues defendant for rent under a lease made by the latter as executor of a certain party, deceased.

Defendant’s contention is, first, that the plaintiff is without capacity to sue, the rights of the Trust Company of America not having devolved upon it by the merger, which contention I regard as without merit, as I am unable to distinguish upon the ground urged by the defendant the case of Matter of Bergdorf, 206 N. Y. 309. See also Bank of Long Island v. Young, 101 App. Div. 88.

Second, that upon the evidence it was not shown that defendant had assumed the covenant to pay rent under the lease which has been originally made to one Seacombe. Although there was some controversy whether defendant entered into possession as the assignee of Seacombe or as subtenant of the latter with the consent of the Trust Company of America, it seems to me that that controversy must be resolved in plaintiff’s favor on the undisputed evidence that defendant executed and left with that company some time between March twenty-eighth and April third a copy of the lease with Seacombe’s assignment thereof to him indorsed thereon and his own acceptance of said assignment, and assumption of all the covenants “in consideration of the approval of said assignment by the landlord.” On May 7, 1912, the trust company wrote to defendant: “ We beg to inclose herewith sublease of Charles M. Seacombe, together with copy of our lease to Seacombe, duly assigned to you, with our consent to such assignment indorsed thereon. ’ ’ Why the sublease was left with the trust company or why it returned the same seems to be quite immaterial, since this letter, with its inclosures, indicates the company’s unequivocal consent to the assignment, and defendant made no further objection thereto or comment thereon. However that may be, plaintiff introduced in evidence .the record of certain summary proceedings instituted in December, 1912, against defendant as tenant and another party as under-tenant, wherein a final order was made removing them from the premises. This order is, upon the authority of Reich v. Cochran, 151 N. Y. 122, conclusive upon the existence of the relation of landlord and tenant as between the trust company and the defendant.

In reply to this manifest conclusion, defendant-appellant urges that since from the present record it appears that defendant was at the time of the institution of these summary proceedings not “ in possession of the premises, the court was without jurisdiction to entertain the proceedings,” citing Warrin v. Haverty, 149 App. Div. 564. While it is true that in that case (at p. 567) the expression is used that the court was without jurisdiction because the tenant was not in possession,” it is evident that that phraseology is employed only in connection with the circumstances of the case and in a proceeding where the defendant actually opposed the issue of the order on the ground that it was not in possession. The Appellate Division says that the court was without jurisdiction to make the order, and further says that it is essential to the jurisdiction of the court to entertain a summary proceeding and to make a final order therein that the tenant should be in possession, citing Brown v. Mayor, 66 N. Y. 385. In that case the Court of Appeals (at p. 391) said: “ It is said that these proceedings can only he instituted against a party in possession or claiming possession of the demised premises.” This is undoubtedly so. It is quite clear that the word jurisdiction ” was not used, in the Warrin case, in its technical sense, and that the final order in the case under review precluded defendant-appellant from thereafter contesting his tenancy.

Judgment reversed, with costs, and judgment directed for the plaintiff, with costs.

Seabury and Guy, JJ., concur.

Judgment reversed, with costs.  