
    Paul Shalet, Appellant, v. Julius Stoloff and Morris Kronovet, Respondents.
    First Department,
    December 30, 1909.
    Beal property—covenant against incumbrances — landlord and tenant' — summary proceedings — res adjudicata — right to hold over—evidence— harmless error.
    Where, in an action by a grantee to recover from his grantors for breach of a covenant that the premises, were free from incumbrances, it appears that the plaintiff instituted summary proceedings to remove the tenant, but did not notify his grantors that the tenant claimed to hold under a lease, or call on them to furnish evidence to sustain his petition, or offer to let them take charge of the proceedings, a final order dismissing the petition is only prima facie evidence of the. tenant’s right to occupy .the premises, and the defendants are entitled to show that he had no right of occupancy.
    Where the tenant’s right to hold over was based upon the claim that he and his wife had succeeded to the rights of a prior lessee under an agreement between him and his landlord, which did not extend the lease, but merely gave an option of renewal conditioned on the prompt payment of rent and subject to ■ the tenant’s obtaining certain consents, and there is no evidence that any of these things were done, or that either the tenant or the former lessee exercised. . the option, or that.the tenant had in fact succeeded to the lights of the former lessee, the prima facie case made by the adjudication in the summary pro- ' ceedings is outweighed.
    A conveyance of the premises by plaintiff having been expressly made subject to the lease, the cause of action on the covenant against incumbrances remained in him; .and evidence of such conveyance erroneously admitted to establish an alleged defense that the covenant ran with the land, and that the cause of action, for a breach thereof, if any, vested in the then owner of the premises is rendered harmless when the court subsequently ignores the alleged defense, and no rights of plaintiff were prejudiced in the final disposition of the case.
    Ahpeal by the plaintiff, Paul Shalet, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 2d.day of November, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of November, 1908, denying the plaintiff’s motion for a new trial made upon the minutes. .
    
      Max D. /Steuer, for the appellant.
    
      Abram S. Jaffer, for the respondents.
   Laughlin, J.:

It was not entirely clear from the allegations of the complaint as originally served whether this action was brought for damages for misrepresentations with respect to incumbrances on premises situate on the northeasterly corner of Rivington and Lewis streets in the twelfth ward of the city of Hew York, purchased by the plaintiff from the defendants, or for a breach of covenant against incumbrances contained in the deed; but upon the trial the plaintiff elected to amend the complaint and make it clear that the action was one for a breach of the covenant against incumbrances. The alleged breach of covenant was with respect to the corner store on the ground floor of a five-story building on the premises, it being alleged that there was a valid outstanding lease thereon for three years ■ from May 1, 1905, and that the conveyance was not made subject thereto. The conveyance was made by the defendants, their wives joining with them, to the plaintiff on the 17fch day of April, 1906. It was made subject to certain mortgages and contained a covenant that the premises were otherwise free from incumbrances. At the time of the conveyance, a store on the ground floor of the premises was occupied by one Jacob,Ettenberg. After taking possession, the plaintiff notified the tenant that he would require $150 per month after May 1, 1906, for that part of "the premises occupied by him and for which he had been paying $70 per month. According to the testimony of the plaintiff, the tenant manifested a willingness to pay the same rent and a bonus for a lease for five years, but he would not yield to the terms proposed, and remained in possession'. The plaintiff thereupon, and on the 5th day of May, 1906, instituted a summary proceeding in the Municipal Court for the removal of Ettenberg on the ground that he was holding over after the expiration of his term without the consent of the landlord on the theory that the term expired on the 1st day of May, 1906. The plaintiff did not give his grantors notice of the.claim made by the tenant, or call upon them to furnish evidence to sustain Ms petition for the removal of the tenant, or offer to let them take charge of said proceeding. The proceeding resulted in a final order dismissing the petition. Ettenberg interposed an answer claiming the right of his wife and- himself to possession under an option for extension of a lease thereof, made on the 15th day of Hovember, 1901, by one- Ash, who then owned the premises, to Julius Hammer for a period of three years from the 1st day of May, 1902, by an agreement in writing between Ash and said Julius Hammer made ón the 19tli day of October, 1903, by which the landlord extended the lease for a peliod of three years from the 1st day of May, 1905, and alleging that Ash thereafter accepted one It. Ettenberg, the wife of Jacob Ettenberg, against Whom the proceeding was instituted and the latter as tenants of the premises under said agreement to extend the lease made with the tenant Hammer, and that the tenant Hammer, with the consent of the landlord, assigned his interest under his lease and under the extension agreement to said B. Ettenberg. Upon the trial of this action the plaintiff proved the final order in the . summary proceeding, and the court ruled that it constituted prima facie but not conclusive evidence of the right of the tenant to occupy the premises. The court, however,. properly ruled that the defendants, were not concluded by that adjudication and that they were at liberty to show that the tenant’s right to-- possession had terminated. (Morette v. Bostwick, 127 App. Div. 701.)

' The. court submitted to the jmy two questions: First, whether the rent reserved in the lease under which the tenant claimed the right to- hold over was the fair rental value of the projDerty, instructing the jury that if the lease was outstanding the plaintiff was entitled to recover the difference between the rent reserved which had been received by the plaintiff and the fair rental value, and also the question as to whether there was an outstanding lease under, which the tenant had á right to hold over. The jury rendered a verdict in favor of the defendants, and inasmuch as special questions were not submitted, it cannot be determined from the record upon which theory the .verdict is based.

On the question as to whether the rent reserved in the lease was the fair rental value,'conflicting evidence was offered, upon which the jury may well have found in favor of the defendants. With respect to the question of the right of the tenant to hold over under an outstanding lease* we are of opinion that it is very doubtful whether the evidence presented a question of fact for the jury on that issue, and in any event the verdict is amply .sustained by evidence. The tenant concededly had- no lease in his own right from the landlord either in writing or resting in parol, which entitled him to possession beyond the month for which he paid rent. His right to hold over is based upon the claim that he or his wife or both of them succeeded to the rights of Hammer under the agreement between Ash and Hammer for the extension of Hammer’s lease for a period of three years from the 1st day of May, 1905. That agreement, however, did not extend the lease, but merely gave the tenant an option for a renewal conditioned upon the prompt payment of the rent falling due in the meantime, and subject to the tenant’s obtaining the consent of any mortgagee or sub-lessee on or'before May 1, 1905. There is no evidence that any of these things was done or that the tenant exercised the option. to renew the lease. If it appeared that Hammer held over after the expiration of his original lease having the right to exercise the option for this extension, it might be inferred that he had exercised it or that its exercise had been waived by the landlord. (Probst v. Rochester Steam Laundry Co., 171 N. Y. 584.) The record, however, is barren of any evidence of any action by Hammer by holding over or otherwise that might be construed into an exercise of the option, and it is likewise barren of any evidence connecting the tenant who was in possession when the defendants conveyed to the plaintiff with Hammer or with Hammer’s rights. There was no evidence of an assignment of Hammer’s original lease or of his, rights under the agreement for an extension to the tenant or tenants in possession at the time of the conveyance to the plaintiff. The former owner, Ash, was called asa witness for plaintiff, and on being recalled by defendants testified that he found Ettenberg in possession prior to May, 1905, and he being in the premises stayed in there from month to month from that time on. He paid the rent to me at the price reserved in this lease, $70 a month after its expiration.”. He had testified that the druggist did' not occupy it under that lease at the time I transferred it.” The lease to Hammer, which expired May 1, 1905, contained the usual provision that it was not assignable without the consent in writing of the landlord. It is shown that such consent was not given by the landlord. Therefore, the prima facie case made by the adjudication in the Municipal Court was fairly outweighed if not completely disproved.

There were many errors committed upqn the" trial, but with one exception they were induced by the counsel for the plaintiff, and therefore, his client cannot complain. The other error which counsel for defendant induced was in receiving evidence that plaintiff,after obtaining title, conveyed the premises, and that his grantee in turn also conveyed them. This evidence was admitted to establish a separate defense that the covenant against incumbrances ran with-the land and that, the cause of action, if any, was vested in the grantee of his grantee, the then owner of the premises. . The con-veyance by plaintiff was made expressly subject to the lease and, therefore, the cause of action on the covenant remained in him and did not pass to or inure to the benefit of his grantee or the grantee of the latter. The court after receiving the evidence ignored this alleged defense and, therefore, the reception of the evidence did not prejudice the rights of the plaintiff in the final disposition of the case, or concerning the questions which the court submitted to the jury.

The judgment should, therefore, be affirmed, with costs.

Ingkaham, McLaughlin, Houghton and - Scott, JJ., concurred.

Judgment affirmed, with costs.  