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CHARLES DAVIS v. CHARLES BONDS ET AL. (11/12/69)

November 12, 1969

CHARLES DAVIS, APPELLANT,
v.
CHARLES BONDS ET AL., RESPONDENTS



Davis v. Bonds, 59 Misc. 2d 926, reversed.

Groat, P. J., Schwartzwald and Margett, JJ., concur.

Author: Per Curiam

In the absence of a judicial determination that the prime lease was terminated, or absent proof that the sublessor had abandoned the premises, it was improper to dismiss the sublessor's nonpayment proceedings against the subtenants. (Bruder v. Geisler, 47 Misc. 370 [App. Term]; Bove v. Coppola, 45 Misc. 636; 34 N. Y. Jur., Landlord and Tenant, § 269.)

Upon a new trial there should be a fuller development of the proof with respect to the affirmative defense of cancellation. In this connection, the subtenants may be well advised to implead the prime landlord as a third-party defendant.

The judgment should be unanimously reversed, without costs, and a new trial ordered.

Judgment reversed, etc.

Disposition

Judgment reversed, etc.

19691112

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