APPEAL, by permission of the Appellate Term of the Supreme Court in the first judicial department, from a determination of said court, entered May 14, 1953, which affirmed a judgment of the Municipal Court of the City of New York, Borough of Manhattan (MATTEO, J.), in favor of the defendants, dismissing the complaint on the merits.
Nathan Schwartz of counsel (William S. Klinger, attorney), for appellant.
Irving Lederman for respondents.
The plaintiff is the owner of real property which had been leased to the defendants Seratoff and Sabin Metal Corp. for commercial purposes. The lease having expired in 1948, the lessees continued to occupy the demised premises as
statutory tenants. On the ground that the sole stockholder of plaintiff landlord required the premises for his own use the plaintiff served a thirty-day notice on tenants requiring them to remove on September 1, 1951, and thereafter instituted a proceeding in the Municipal Court to recover possession of the premises.
A final order in the proceeding was entered October 18, 1951, which was stayed in the Municipal Court and on appeal a further stay was granted by the Appellate Term which remained in effect until the affirmance of the order on January 3, 1952. Possession of the premises was surrendered to plaintiff January 20, 1952. It is stipulated that no warrant was applied for or issued at any stage of the summary proceeding.
The tenants paid the emergency rent during the period of occupancy in dispute. One cause pleaded in this action is for the recovery of the difference between the emergency rent paid and the fair rental value of the premises during the period between September 1, 1951, and January 31, 1952.
The lease between the parties provided that if the landlord were required to incur any expense, including reasonable attorney's fees in prosecuting any proceeding 'by reason of any default of Tenant hereunder', the amount of such expense would be recoverable as additional rent. The plaintiff in a second cause of action seeks recovery under this provision for the legal expenses incurred in the proceedings to remove the tenants.
After a trial of this action in the Municipal Court, judgment was entered for the defendant. On appeal the Appellate Term affirmed by a divided court. We are of opinion the affirmance was right.
The theory of the cause of action for recovery of the fair and reasonable rental value of the premises and the theory of recovery for the attorney's fees under the lease incurred 'by reason of any default of Tenant hereunder' have had a somewhat different judicial development and require separate treatment.
It has commonly been held that the final order in summary proceedings does not terminate the relationship of landlord and tenant and that the point of termination occurs upon the issuance of the warrant which gives possession to the landlord. Until that time the summary proceeding is still deemed pending. ( ...