"the question to be considered is whether the physical relationship of the store and the living apartment is of such a character that they cannot be separated without injury to the rights of the tenant. If no such separation can reasonably be effected, then the rights of the tenant as a dweller are superior to the rights of the landlord as the owner of property used for commercial purposes." It was found that there was a separate entrance through a rear or alley-way to the living rooms, and that the store could be "fully and completely separated from the living quarters.' Accordingly, though the tenant, in the language of the court, might be "called upon to suffer some inconvenience and annoyance," the landlord was awarded possession of the store. 15

Where the character of the premises permits the same space to be used for either business or residence purposes, the interesting question has been raised whether a tenant leasing for business purposes can subsequently gain the protection of the emergency laws by applying the property to residential use, such use not being consented to by the landlord. In an unreported Municipal Court decision, 16 the tenant's lease provided that the premises should be used "as a cloak and suit store and for no other purpose." The tenant subleased part of the premises to persons who used it for residence purposes and refused to vacate, claiming the protection of the emergency laws. The court held

15 See also Cohen v. Pincus, a decision by Bayes, J., in the Kings County Court, reported in the N. Y. Law Journal of February 25, 1921, at page 1810, where a municipal court decision between the same parties is mentioned in which the lessee of a candy and stationery store behind which were two rooms in which he and his family lived, was held entitled to the protection of the emergency laws.

16 Moran v. Travis (tenant) and Williams (undertenant), Spiegelberg, J., Seventh District Municipal Court, Manhattan, February 28, 1921.

that "it would be doing violence to the statute to extend it to cases where tenants in violation of the lease used the premises or a portion of them as their home. . . . If this were permitted, the legislative intention to protect only the homes of our population would be set at naught. Any lessee of a suite of offices or a business loft could turn such premises or a portion thereof into a dwelling by occupying or permitting others to occupy one of the rooms as a home." Accordingly, a dispossess warrant was granted. This line of reasoning appears to find support in a later Appellate Term case," holding that the landlord has the right to determine the character of the occupancy. Here the tenant rented a ground floor apartment in a house used exclusively for residential purposes, and used it for her dressmaking business. The landlord found that such use raised his insurance rates and was objected to by the Labor Department, and called upon the tenant to terminate it. She refused, and he brought dispossess proceedings against her on the ground that she was objectionable. The court adopted the view that the premises had originally been leased both for residential and business purposes, but held that on the expiration of such letting the owner had "the right to determine whether or not the premises shall be used only for residential purposes," and that the court should not "substitute its own judgment in place of the judgment of the owner as to whether or not the use of residential property for business purposes should continue." Accordingly, the tenant having refused to desist from using the property for her business, a dispossess warrant was ordered issued against her upon the ground that she was objectionable.

But where the landlord has rented property for dwelling 17 Hermitage Co. v. Preziose (App. Term, 1st Dept.), 188 N. Y. Supp. 434.

purposes, it appears quite clear that his subsequent election to devote the same premises to business uses would not exempt them from the operation of the emergency laws. Having by his own act originally devoted the premises to "dwelling purposes," they fall thenceforth directly within the protection of these measures.

SUBTENANTS

An interesting question arises as to the status of the undertenants or sublessees, in a case where the issuance of a dispossess warrant against the tenant is ordered. The question is expressly left undetermined in one of the cases previously mentioned. 18

Undertenants are proper parties to a summary proceedings, but they are not necessary parties.19

If, however, it is sought to oust undertenants or assignees or legal representatives of the tenants, they ought to be made parties to the proceedings, so that they may be heard. 20

The statute contemplates the joinder of the tenant, and of all who derive title through him, in the proceeding instituted by the landlord."1 The statute reads: "A tenant his assigns, undertenants or legal representatives, may be removed," etc.

There are, however, other persons who may lawfully be removed without having their day in court, or any opportunity to object to the proceedings. The wife, the children, the servants, the boarders, the guests of the tenant,

18 Howie v. McKenzie, 189 N. Y. Supp. 291, 293 (App. Term, 2nd Dept.). 19 Atterbury v. Edwa, 61 Misc. 234 (App. Term, 1st Dept.).

20 Croft v. King, 8 Daly, 265 (Gen'l Term, Ct. of Com. Pleas); Hite v. Haley, (App. Term, 1st Dept.), 188 N. Y. Supp. 906, and cases cited.

21 Croft v. King, supra. Sec. 2231, C. C. P.; sec. 1410, Civil Practice Act.

may all be removed under the warrant by virtue of which he is dispossessed, though they have not been made parties. These are they whom the statute refers to when it provides that the warrant shall direct the removal of "all persons." 22 The statute provides for the issuance of a warrant "describing the property, and commanding the officer to remove all persons therefrom, and also . . . to put the petitioner into the full possession thereof." 23

A landlord may maintain summary proceedings against an undertenant.24

Three recent cases have laid down the proposition that "the subtenant's rights are measured by those of his immediate landlord, the original tenant, and the cancellation of the lease by its own terms as to one cancels it as to both." 25 It has been held, however, that where the tenant's lease is not cancelled "by its own terms," but is prematurely terminated by a surrender, the "interest and term of the subtenant of the lessee continued as if no surrender had

been made." 26 The tenant, the court said, "could not sell, give up, or surrender anything that did not belong to him."

In another case, the court permitted proof that the tenant's assignment of his lease was colorable and fraudulent, and made for the purpose of ending his subtenant's rights. The fact of such action was available, it was held,

22 Croft v. King, supra. Sec. 2251, C. C. P.; sec. 1432, Civil Practice Act. "Sec. 2251, C. C. P., and sec. 1432, Civil Practice Act.

"Ward v. Burgher, 90 Hun, 540.

25 Ashton Holding Co., Inc., v. Levitt, 191 App. Div. (1st Dept.) 91, 180 N. Y. Supp. 700; Lusonray Holding Co. v. McCastline, 192 App. Div. (1st Dept.), 156, 182 N. Y. Supp. 425; Hessberg v. Marzullo (App. Term, 1st Dept.), 182 N. Y. Supp. 636.

"Ashton Holding Co., Inc., v. Levitt, 191 App. Div. 91, 180 N. Y. Supp. 700, and cases cited.

by way of defense to a summary proceeding to put the subtenant out.2 27

No case thus far reported or found has definitely adjudicated, however, whether or not subtenants are entitled to the protection of the emergency laws, where the tenant himself is not, and this undoubtedly remains a debatable and somewhat troublesome question. 28

Perplexed lawyers have recently, in their efforts to put out subtenants, resorted to a special type of summary proceeding 29 which remains unaffected by the emergency laws, and which was designed to be available against a person "who holds over or continues in possession of real property, after notice to quit the same 30 has been given," where such person,

"or the person to whom he has succeeded, has intruded into, or squatted upon, any real property, without the permission of the person entitled to the possession thereof, and the occupancy, thus commenced, has continued without permission from the latter; or, after a permission given by him has been revoked, and notice of the revocation given to the person or persons to be removed."

This effort, to proceed against subtenants as "intruders" or "squatters," has been unsuccessful in most instances where tried. The words "intruded into" and "squatted upon are interchangeably used in this statute, and

31

27 Horodenker Realty Co., Inc., v. Kramer (App. Term, 1st Dept.), 185 N. Y. Supp. 67.

28 See Aulam v. Stearns (Kings Co. Supreme Court, Faber, J.), 184 N. Y. Supp. 516.

29 Code of Civil Procedure, §2232, subd. 4; Civil Practice Act, § 1411, subd. 4. 30 Ten days' notice; Code of Civil Procedure, § 2236; Civil Practice Act, § 1416.

31 Mahoney v. Hoffman (App. Term, 1908), 58 Misc. 217, 109 N. Y. Supp. 13; Matter of Stockwell v. Washburn (Albany County Court, 1908), 59 Misc. 543, 111 N. Y. Supp. 413.