
    Louis Halperin and Joseph Hirsch, Respondents, v. John E. Henry, Individually and as Receiver, etc., Appellant.
    Second Department,
    May 26, 1911.
    Landlord and tenant — summary proceedings — order of dispossession — voluntary removal by tenants'—reversal of order on appeal ^-action for damages.
    The voluntary removal of tenants from premises pending an appeal from an order of dispossession rendered against them in summary proceedings does not entitle them to maintain an action after the reversal of the order on appeal to recover damages for dispossession under section 2263 of the Code of Oivil Procedure, where the receiver of the property, who had instituted the proceedings, never took any steps to execute a warrant of dispossession.
    Appeal by the defendant, John E. Henry, individually and as receiver,-etc., from a judgment of the Municipal Court of the city of New York, rendered on the 15th day of March, 1911, in favor .of the plaintiffs for the sum of $220 damages and costs, in an action tried before the court -without a jury.
    
      Henry. A. Ingraham, for- the appellant.
    
      Stone & Chugerman, for the respondents.
   Hirschberg, J.:

The appellant is sued, individually and as receiver of the rents, issues and profits of certain premises in the borough of Brooklyn, he having been appointed in a foreclosure action. The respondents were tenants of the property, and on default of payment of rent summary proceedings were instituted against them by the appellant> which resulted in a judgment or final order of dispossession. There was no evidence in the case tending to show that the respondents had been made parties to the foreclosure action, and on their appeal taken to this court the final order, was reversed and the proceedings dismissed as was stated in the memorandum handed down at the time (October 7, 1910) ‘'on the ground that there is no evidence that the tenant appellants were made parties to the foreclosure action, and not having attorned to the receiver they cannot he divested of possession of the demised premises in summary proceedings.” (See Henry v. Hirsch, 140 App. Div. 893.)

The receiver took no steps to execute any warrant of dispossession, and if such process was issued, it was without his order and was never served or executed in any way. The respondents herein, however, removed from the premises on' the rendering of the decision in the court below, and instituted the present action by virtue of section 2263 of the Code of Civil Procedure, providing in effect that, if the final order in summary proceedings is reversed upon appeal, the person, dispossessed may maintain an action to recover the damages sustained by the dispossession. Our attention is called to no authority in this State holding that a voluntary removal by the tenants in such circumstances will authorize the maintenance of an action for damages by reason of the dispossession. The case of Coe v. Haines (44 N. J. Law, 134) is somewhat in point and is well reasoned. A statute in New Jersey similar to the one under consideration renders the landlord liable in an action of trespass for unlawful proceedings in the dispossession of a tenant. In that case a warrant to dispossess was made out, but the tenant moved out of the premises before it was placed in the hands of an officer for execution. It was held by the Supreme Court that, in order to enable the tenant to maintain the action for damages, it must he shown that he was removed by virtue of the warrant, and that the surrender of the premises in the circumstances must he regarded in law as voluntary and not as the result of constraint by process of law.

The judgment herein must he reversed.

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  