
    Harris Mirsky and Max Stock, Respondents, v. Wolf Horowitz, Appellant.
    (Supreme Court, Appellate Term,
    January, 1905.)
    Lease — Possession of premises — Duty of landlord — Deposit for performance of covenants.
    While a landlord is not bound to put his tenant in actual possession of the leased premises, it is incumbent upon him to see to it that no one else has a superior right of possession, so that no obstacle may be interposed to the tenant obtaining actual possession.
    A deposit by a tenant, to secure performance of all his covenants in a lease, may not be recovered before the end of the term.
    Appeal by the defendant from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of Hew York, thirteenth district.
    
      Jacob W. Block, for appellant.
    Abraham S. Schomer, for respondents.
   Scott, J.

I am unable to see how this judgment 'can be sustained. The plaintiffs must assume and sustain the burden of proving every .fact necessary to a recovery. This they have not done. All they show is that, on the day on which their term was to commence some one else was in physical occupation of the demised premises, but it is not shown by what title the person in possession held or claimed to hold. It was not incumbent upon the lessor to put the lessees into actual possession. Gardner v. Keteltas, 3 Hill, 330.

All that was incumbent upon the landlord was to put the tenant into legal possession, that is, to see to it that no one else had a superior right of possession, so that no obstacle would be interposed to the tenant’s obtaining actual possession. For all that appears in this case the persons in possession of the property on the date the term of the lease was to commence were holding over after the expiration of some lease or letting, and, therefore, mere strangers and liable to summary dispossession. This case differs materially from Goerl v. Damrauer, 21 Misc. Rep. 555, in that there the parties in possession were shown to be holding under a monthly tenancy, and the landlord had failed to give them the statutory notice to terminate their tenancy. Thus, by the landlord’s own act there was in possession on the day the term was to commence a tenant lawfully in possession holding by a title superior to the new lessees. In other words, the landlord, by omitting to give a notice which he alone could give, disabled himself from putting his tenant into legal possession, and prevented that tenant from taking actual possession. Nothing of that kind is shown in this case. The deposit was made to cover all the covenants in the lease and it cannot be determined yet nor until the end of the term what claim the landlord may have against the fund.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Davis, J., concurs.

MacLean, J. (concurring).

In this, their action upon oral pleadings, as amended upon the very day of the trial for money had and received, the plaintiffs stated in their bill of particulars, that on March I, 1904, the defendant, in writing, leased them certain premises for the term of one year, from the first day. of May, 1904, at a specified rental, ■ and upon payment of $300 as security for the faithful performance of their covenants, which $300 they paid, and that on. the 1st day of May, 1904, defendant failed and refused to give possession of said demised premises * * * and refused to return the said sum of $300.” This does not state a cause of action. The first day of May is excluded, as the lease recites from.” Frost v. Akron Iron Co., 1 App. Div. 449. No cause of action was proven on the trial, for refusal yas not shown upon a day subsequent. The complaint should have been dismissed on the merits.

The judgment should he reversed and that, in my opinion, considering the conduct of the case, absolutely.

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