Municipal Court of the City of New York, Borough of Queens, Sixth District.
REDMONT SALES CORPORATION, Landlord,
v.
LEROS STATIONERY, Inc., Tenant.
Dec. 24, 1956.
Proceeding to evict tenant on ground that he had failed to comply with lease.
The Municipal Court of City of New York, Tobias, J., held that where lease
provided that title to air conditioning units should vest in landlord upon
installation by tenant, tenant's execution of chattel mortgage which purportedly
included lien on such units did not in fact subject units to lien, and
consequently tenant who offered to give landlord a bill of sale of all tenants'
interest in units could not be evicted on any theory of failure to comply with
lease provision that he execute bill of sale transferring title to units to
landlord.
Tenant's motion to dismiss granted.
West Headnotes
[1] Corporations 419
101k419 Most Cited Cases
Under statute authorizing landlord to designate a person as his agent to
commence a summary proceeding in landlord's behalf, proceedings cannot be
commenced by an attorney acting in his capacity as an attorney, but can be
commenced by an attorney who has been designated by corporate landlord as agent
to commence such action. Civil Practice Act, § 1414, subd. 6.
[2] Landlord and Tenant 103(1)
233k103(1) Most Cited Cases
Where lease provided that title to air conditioning units should vest in
landlord upon installation by tenant, tenant's execution of chattel mortgage
which purportedly included lien on such units did not in fact subject units to
lien, and consequently tenant who offered to give landlord a bill of sale of all
tenants' interest in units could not be evicted on any theory of failure to
comply with lease provision that he execute bill of sale transferring title to
units to landlord.
*816 Dreyer & Traub, Brooklyn, by Samuel Kirschenbaum, Brooklyn, of counsel,
for landlord.
Norman Kemper, Brooklyn, for tenant.
TOBIAS, Justice.
The landlord in this proceeding seeks to evict the tenant on the ground that
the tenant failed to comply with Paragraph 43rd of the lease entered into
between them, which clause reads as follows: '43. (Continued) Tenant or by the
Tenant's affiliated companies, if any.
'Tenant covenants and agrees that as a condition to this lease and as a major
inducement to the landlord, that he will install at his own cost and expense air
conditioning units (exclusive of air conditioning ducts) and that upon the
installation of said air conditioning units, that title to said units shall vest
in the Landlord and the Tenant does for himself and his assigns hereby assign
all of his right, title and interest in and to said air conditioning units, same
to take effect upon installation by Tenant. Tenant agrees to execute a bill of
sale, upon Landlord's request, transferring title as aforesaid. Tenant's default
hereunder shall be regarded as a material default entitling Landlord to all
remedies as set forth in paragraphs '17' and '18'.'
The facts developed at the hearing are as follows: The tenant rented the
premises to be used as a stationery store. The tenant agreed to install an air
conditioning unit which unit when installed would become the property of the
landlord. The tenant did install an air conditioning unit on or about September
12, 1955 with some balance due on it but no liens. Thereafter on or about
September 18, 1955 *817 the tenant borrowed approximately $19,000 from the Chase
Manhattan Bank and gave the bank a chattel mortgage as security for the loan.
The chattel mortgage included a lien on the air conditioning unit. Sometime in
May 1956 the landlord demanded a Bill of Sale to the air conditioning unit. The
tenant offered to give the landlord a bill of sale of all his right, title and
interest in and to the air conditioning unit. The landlord rejected this offer
on the theory such bill of sale would be subject to the lien of the Chattel
Mortgage.
[1] The proceeding was instituted on the petition made by Samuel Kirschenbaum,
the attorney appearing for the landlord as his agent. The testimony at the trial
indicated that the property in question was managed by someone else. The tenant
moved to dismiss the petition on the ground that the attorney could not act as
agent of the landlord in commencing this proceeding. This motion is denied.
Section 1414 of the Civil Practice Act provides as follows:
'Application; by whom made. The application may be made by: * * *
'6. The legal representative, agent or assignee of the landlord, purchaser or
other person so entitled to apply.'
This provision authorizes a person who is designated by the landlord as his
agent, to commence a summary proceeding in the landlord's behalf. However, it
cannot be made by an attorney acting in his capacity as attorney. In this
proceeding the said Samuel Kirschenbaum was designated by the landlord as his
agent to commence the proceeding. Reserve Finance Corporation v. Rosen, 127
Misc. 591, 216 N.Y.S. 153.
[2] The tenant further moved to dismiss the petition on the ground that tenant
complied with the terms and conditions of Par. 43rd of the lease. This motion is
granted.
The lease provides that 'title to said units shall rest in the landlord and
the tenant does for himself and his assigns hereby assign all of his right,
title and interest in and to said air conditioning units, same to take effect
upon installation by tenant.' It therefore follows that when the tenant
installed the air conditioning units on September 12, 1955 the title to these
units immediately restedin the landlord without any further act on the part of
the tenant. The giving of a chattel mortgage by the tenant to the Chase
Manhattan Bank did not create a lien on the units since the tenant did not have
any title thereto at the time it executed the chattel mortgage. The rejection by
the landlord of the bill of sale offered by the tenant was unwarranted since the
bill of sale was not subject to the lien by the bank for the reason
aforementioned.
Accordingly final order is awarded to tenant dismissing landlord's petition on
the merits.
158 N.Y.S.2d 815
END OF DOCUMENT