
    Albert F. Mando, Landlord, Appellant, v. Lauretta H. Kitchell, Tenant, and William L. Kitchell, Respondent, and Others, Undertenants.
    Second Department,
    May 7, 1909,
    Landlord and tenant — summary proceedings — pleading—sufficiency of petition—answer not raising issues.
    A petition in summary proceedings to remove a tenant and sub-tenants need'not allege that the sub-tenants held over “without the permission.of the landlord.” That fact need be alleged only in respect to the tenant.
    A petition which sets out a lease with a tenant and alleges that the premises are . in occupation of said tenant and certain specified undertenants, is not defective in failing to show under whom the undertenants hold.
    A sub-tenant makes no denial of the landlord’s allegation that rent was demanded by denying that it was demanded “ according. to law,” it being a legal conclusion and negative pregnant.
    An allegation by a sub-tenant that the tenant vacated the premises is no denial of the landlord’s allegation that the tenant and sub-tenants are in possession, for the physical possession of the sub-tenants is a legal possession by the tenant.
    A denial by a sub-tenant that he is tenant of a tenant is not a denial of the allegation that he is a sub-tenant, for he may have hired from a. sub-tenant.
    Woodward and Rich, JJ., dissented, with opinion.
    Appeal by the landlord, Albert F. Mando, from a judgment of the County Court of ¡Nassau county in favor of the undertenant, William L. Kitchell, entered in the office of the clerk of said county on the 7th day of ¡November, 1908, upon an order of. said County Court entered on the same day, reversing so far as concerns said undertenant a final Order of a justice of the peace of the town of Hempstead for the removal of a tenant and undertenants holding over after default in payment of rent.
    
      G. L. Rohan, for the appellant.
    
      Lincoln B. Haskin, for the respondent.
   Gaynor, J.:

The tenant did not appeal from the final order of the Justice, but only one of. the three undertenants, William L. Kitchell. The reversal of the said final order was erroneous. The Justice properly denied the motion of the said undertenant to dismiss the petition for not alleging facts sufficient. The petition was not required. to allege that the undertenants held over “ without the permission of the landlord ”. That requirement is only in respect of the tenant (Code Civ. Proc. § 2231). The provision is that a “tenant” and his “undertenants” may be removed when “he”, i. e., the tenant, holds over without such permission, and the petition did not need to state more (§ 2235). .Only the tenant holds over as to the landlord. The undertenant holds over as to his landlord, viz., the tenant, and the lease between them. The other objection to the sufficiency of the petition, viz., that it does not show under whom the said undertenant was such, or who his landlord was, is also unfounded. The petition sets out the written lease to the tenant and alleges that the premises are in the occupation of the said tenant “ and William L. Kitchell, George W. Kitchell and G. C. Kitchell Optical Company (Incorporated), undertenants ”. This is specific enough, unless the spirit of verbal technicality is to be permitted to run altogether afield. It is a short statement that one person named is tenant and the others undertenants. " Of whom could they be undertenants except of the tenant ? The landlord may often not be able to grade or classify the undertenants, and there is no requirement that he should do so. The first undertenant named here may have hired of the tenant, the second one of the first, and the third of the second, but they are all undertenants. Nor did the Justice err in striking out or disregarding the said undertenant’s answer. It raised no issue and was therefore frivolous. The denial that the landlord owned the premises was of an immaterial fact. There was no denial of the allegation that the rent was demanded, but only that it was demanded “ according to law ”—a legal conclusion and negative pregnant. The allegation that the tenant “vacated” the premises a year ago was no denial of the allegation that she and the under-tenants were in possession. Their physical possession under her would be her legal possession. The denial that he was the tenant of the tenant was not a denial that he was an undertenant — he might have hired of an undertenant.

The order .of reversal should be reversed, and the final order affirmed.

Jenks and Bubk, . JJ., concurred; Woodward, J., read for affirmance, with whom High, J., concurred.

Woodward, J. (dissenting):

This special proceeding was instituted against Lauretta H. Kitchell, tenant, and William L. Kitchell, George W. Kitchell and G. 0. Kitchell Optical Company (Inc.), undertenants, for the nonpayment of rent, and was tried before Charles F. Gittens, justice of the peace, at Hempstead, resulting in a judgment in favor of the landlord, not alone against the tenant, hut against the under-tenants, for removal and eight dollars and eighty cents costs. From this judgment William L. Kitchell, undertenant, appealed to the County Court, where the judgment was reversed, and from the judgment and order of the County Court the landlord appeals to this court. I am of the . opinion that the petition was defective, and failed to give jurisdiction of the undertenants, because it does not show under whom William L. Kitchell or George C. Kitchell Optical Company (Incorporated)' held as undertenants, or who is their landlord, and “ because it does not allege that William L. Kitchell (among others) holds over without the consent of the said Albert F. Mando,” the landlord. These questions were raised by a motion to dismiss the petition before the justice, which motion was denied, and it is now urged by the landlord that the respondent and other undertenants were not necessary parties, as they had no legal right upon the premises. Assuming, without deciding, that this is true, yet he did make them parties, and the judgment of the Justice’s Court is against them for removal and for costs. He cannot be permitted to say that they were not • proper parties, when he has elected to bring them in, and still hold on to a judgment of removal, with costs, against them. The judgment is, therefore, properly reversed.

The: judgment and order appealed from should be affirmed* with costs.

Rich, J., concurred.

Order of the County Court of Uassau county reversed, with ten dollars costs and disbursements, and final order of the Justice’s Court affirmed, with costs.  