
    Ida Applegate Drake, Appellant, v. John Cunningham, Respondent.
    Second Department,
    June 12, 1908.
    Landlord and tenant — summary proceedings — monthly tenancy — conventional relation—questioning derivative title—devisee’s title — will as evidence. '
    A monthly tenancy is established where it appears that the tenant hired his flat from the owner and paid twenty-five, dollars when he first went in and twenty-five dollars a month thereafter, although not always in advance.
    The Municipal Court is not ousted of jurisdiction in summary proceedings because the. title to real property is involved.
    In summary proceedings the question of title is not involved, but the questions are whether the conventional relation of landlord and tenant exist and who has the right of possession under that relationship.
    Where .the original relation is by agreement and the petitioner relies on the relation so established and simply by Virtue of her representation, the relation, if any, is conventional.
    The doctrine that a tenant may not question the landlord’s title does not obtain where the title is derivative.
    Where the petitioner in summary proceedings is the devisee of the late owner and the tenant admits that the rent is due, but pleads a notice from the heirs of the deceased that the title is in dispute, an issue is raised as to the status of plaintiff as landlord and defendant may show that the relation does not exist.
    The deceased owner’s will having been admitted to probate is competent to establish the title of the devisee who is.entitled to the presumption and rights afforded by section 2627 of the Code as against the heirs.
    Appeal by the plaintiff, Ida Applegate Drake, from a final order of the Municipal Court of the city of Dew York, dismissing the petition in summary proceedings brought for non-payment of rent.
    
      Willard N. Baylis for the appellant.
    
      Roger Foster [James A. Timony with him on the brief], for the respondent.
   Jenks, J.:

The learned Municipal Court put its dismissal solely upon the ground that, a monthly tenancy had not been established. I do not agree. The original lessor is -dead. The tenant testifies that he had lived in the flat for 13 years and that he had hired it from Joseph Applegate to whom in person he paid the rent; that he paid $25 when he first went there, $25 a month not. always, in advance,, as he usually paid- between the 1st and the 10th or the 11th. . At the time of the demand lie - admitted that he owed rent to the rightful owner. The witness Baylis testifies that he demanded the rent for December and that the tenant in substance said that he had been forbidden by others to pay it. In the absence of all evidence to the contrary, I think that this made out a sufficient monthly tenancy. (McAdam Landl. & Ten. 84; Anderson v. Prindle, 23 Wend. 619; Gilfoyle v. Cahill, 18 Misc. Rep. 68; Morris v. Niles, 12 Abb. Pr. 103; Thomson v. Chick, 92 Hun, 510.) The inference is that the parties continued the tenancy as originally established. (Laughran v. Smith, 75 N. Y. 209; Thomson v. Chick, supra.) The premises were owned by Joseph Applegate when he died in' May, 1907, leaving a will which- was probated on December 6, 1907. The petitioner showed that “in and by which will the said premises were devised to your petitioner who is now the owner and landlord of said premises and has been since the 7th day of May, 1907.” The defendant made general .denial and alleged the “following facts showing that the title to the real property is. now in question to wit, on or about the 13th day of December, 1907, one Frank E. Applegate served notice on the tenant herein that he. and May E. Dubois and Harry Applegate are the sole heirs and legally entitled to the premises' herein in question of which one Joseph Applegate died seized of, that through-said notice the defendant has been informed and verily believes that the title to the premises in question are now in dispute in an action brought in the Surrogate’s Court to test the validity of said title and which said action was not determined and the right of ownership in the petitioner and the contestants settled. Wherefore, the tenant prays that this próceeding be sent to a proper court for its adjudication and determination.” The Municipal Court was not ousted of jurisdiction in summary proceedings because the title to real property is involved. (Quinn v. Quinn, 46. App. Div. 241, and cases cited.) It does not appear that the tenant lias ever attorned, or attempted so to do.

The point is made that the conventional relation of landlord-and tenant does not exist. If, however, the original relation was by agreement, so long as the petitioner relies upon the relation as thus established and simply by virtue of her representation, the relation between her and the defendant as landlord and tenant, if any, is conventional. (Birdsall v. Phillips, 17 Wend. 464.) It is commonly and correctly said that in summary proceedings the question of title is not involved but that the questions are whether the conventional relation of landlord and tenant exists and whose is the right of possession under that relationship. The doctrine 'that a tenant cannot question the title of his landlord is available to the ■successor of the lessor and may be invoked by him in summary proceedings. But as this doctrine rests in the principle of estoppel it does not obtain where the title is derivative. (Despard v. Walbridge, 15 N. Y. 374, 377.) Under the pleadings an issue was raised as to the status of the plaintiff as landlord, and consequently it was open to the defendant to show that such relation did not exist. (People ex rel. Ainslee v. Howlett, 76 N. Y. 574; see, too, Reich v. Cochran, 151 id. 126.) In Despard v. Walbridge (supra) the court say :'“ Again, suppose a landlord dies during the tenancy, the tenant, in a contest with the heir, cannot dispute the title of the ancestor; but he may show a devise to a third person. Were it otherwise, the tenant would be at the mercy of both heir and devisee. He could defend himself against neither. The distinction is stated and was adopted in Jackson v. Rowland (6 Wend. 670).” In Lehnen v. Dickson (148 U. S. 71) the court say: “ Suppose, after the execution of a lease, the landlord dies, and at the termination of the lease his only son and heir at law should bring an action of unlawful detainer, and the tenant in defense should introduce wliat purported to be a will made by the landlord, devising the real estate to some third party, and the record of the proper court probating that will, together with an attornment to such devisee — within the cases cited such testimony would be competent. Would it not also be clearly competent for the heir, in rebuttal, to introduce a final decree from a competent court, in a suit between himself and the devisee, adjudging that will a forgery, and setting aside its probate? Hone of this testimony impeaches the lease, or cliallenges any rights created by or under it. It is simply evidence for proof of rights under a derivative title,’ evidence which in terms is authorized by the section last quoted. There was no error in admitting this testimony.” In Cronk v. Barlow (4 N. Y. St. Repr. 137) the court say: “ It is doubtful whether the petition sufficiently shows the relationship of landlord and tenant. At any rate, the proof fails in that respect. The defendant evidently went into possession as tenant under Sarah Clonk, since deceased, the mother of plaintiff. It is not properly shown that he succeeded to her title. He simply swears that he is owner; that he was the owner of two-eighths and is the owner of the whole. On cross-examination he stated that he had a conveyance in writing; and .yet on defendant’s motion the justice refused to strike out tiie testimony as to ownership on the ground that there was higher evidence. He should have proved the descent or devise of the land and the conveyance thereof from heirs or devisees.” The attitude of the respondent is not that he makes any claim of title in himself, but that he is ready to pay rent to his rightful landlord, and his halt is avowedly due to the notice from the alleged heir. The will itself was competent to establish the devisee’s title upon production and proof of its validity. (Corley v. McElmeel, 149 N. Y. 235.) . And moreover the devisee was entitled to the presumption and the rights afforded by section 2627 of the Code of Civil Procedure as against the heirs cited and those who asserted any rights under them. The probate decree is presumptive evidence of the facts as to proper execution, as to the competency of the testator and that he was not under restraint. (Code Civ. Proc. § 2623.) (See Jessup Surr. Pr. [2d ed.] 484, and authorities cited.) Taylor on Landlord and Tenant (8th ed. § 713) says: “ The decision of the justice is fro hao mee, and nothing more, and either of the parties can in any subsequent legal investi gation deny or disprove) if it becomes necessary, the facts upon which his judgment was based.”' And section 2264 of the Code of Civil Procedure provides: “ This title does not impair the rights of a landlord, lessor, or tenant, in a case not therein provided for. Where a special statutory provision confers a right to take ‘proceedings, in the manner heretofore prescribed by law, for the summary removal of a person in possession of real property, the proceedings thereunder must be taken as prescribed in this title. A final order, made in a special proceeding, taken as prescribed in this title, is not a bar to an action of ejectment, to recover the property affected thereby.”

The judgment is reversed and a new hearing is ordered, costs to abide the event.

Woodward, Hooker, Rich and Miller, JJ., concurred.

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