O'Connor v. Schmitz et al.

O’Connor v. Schmitz et al. (Supreme Court, General Term, Second Department. February 11, 1891.) Landlord and Tenant—Recovery oe Possession. In an action to recover possession of real estate, it appeared that defendant was an under-tenant of one L., to whom plaintiff had leased the premises, and that the lease had expired. Held, that a verdict for defendant was against the weight of the evidence. Appeal from Westchester county court. Action by William P. O’Cdnnor, as agent of the Sisters of Charity of St. Vincent de Paul, against William Schmitz and others, to recover certain premises leased by plaintiff to one Lunny, and sublet by Lunny to Schmitz. A judgment of the justice of the peace was reversed by the county court, and defendant Schmitz appeals. Argued before Barnard, P. J., and Dykman and Pratt, JJ. Seward Baker, for appellant. Joseph B. Owen, for respondent. [MAJORITY — Pratt, J.] Pratt, J. There is no merit in this appeal. The defendant Schmitz was an under-tenant of one Hugh Lunny, who held a written lease of certain premises in Westchester county. The lease had expired, and the plaintiff commenced these proceedings to eject the tenant, who was holding over. A trial was had on the 16th of May, 1890, and a verdict rendered for the defendant. J udgment and verdict entered in the justice’s docket on the 5th of July, 1890, and defendant appealed, and judgment reversed in county court. The fact that plaintiff paid the costs, and served a notice of appeal before the entry of judgment, had no legal effect, and the judgment in the county court was right. The defendant was the tenant of Lunny, and not the tenant of the plaintiff, and Lunny’s lease had expired. These facts appeared before the jury in the justice’s court, and the verdict was against the evidence. J udgment affirmed, with costs.