Kirsch v. Brigard

Sharpstein, J. The counsel for defendant insists that although the plaintiffs were in the actual possession and occupation of the demanded premises at the time of the entry and ouster by the clefendent, their possession was not of that kind which would enable them to maintain an action of ejectment against any one who might enter upon the premises by force and violence. And this insistence is based upon certain allegations in the complaint to the effect that one Naphtaly ivas at the time of the commencement of the action, and for more than five years prior thereto had been, the owner, and, by himself and his tenants, in the possession of said premises, and that in the month of September, 1873, said Kaphtaly leased to the plaintiffs said premises, and that they entered upon the possession thereof and remained in such possession until evicted therefrom by the defendant in the month of January, 1879. “ That at the expiration of the term described in said lease, to wit, in the month of September, 1878, said lease was renewed by mutual agreement of said plaintiffs and said Kaphtaly for one year ”; and that at - the date of the commencement of the action (June 28, 1879) said lease was in full force. From which the learned counsel for appellant argues that “ if any one could then, at the expiration of the written lease, have maintained ejectment against the defendant, it was Kaplitaly, the landlord, but instead of resorting to this remedy, he made an oral lease to the plaintiffs for a term of one year, which expired September 18, 1879, and the action was commenced June 28, 1879. The only possible ground on which they could then maintain ejectment against the defendant was that, as tenants of Naplitaly, the owner, under the lease for one year.(which was then in force), they were entitled to be let into the possession of the demised premises by virtue of that lease. If it be conceded that they then had a good cause of action on that ground, the trouble is that the oral lease expired by its terms within less than three [321]months after the commencement of the action, and about one year before the trial. The law is well settled that the plaintiff in ejectment must be entitled to the possession both at the commencement of the action and at the time of the trial to entitle him to a judgment of restitution.”

Briefly stated the argument is tins, that as the entry and ouster occurred before the expiration of the first written lease, the plaintiffs’ right of action terminated at the termination of that lease, and was not renewed by the renewal of it; and conceding that under the neiv lease they were entitled to be let into possession and might maintain an action to recover it, they could not recover it after the expiration of said last mentioned lease, although they commenced their action before the expiration of it. It is alleged in the complaint that the entry and ouster by the defendant were in the month of January, 1879; and that the plaintiffs were then holding under the lease of September, 1878, which at the alleged date of said entry and ouster had several months to run. So that the complaint does not show that the alleged cause of action arose before the expiration of the first or written lease, but that it arose while the plaintiffs were holding under the second or oral lease. And it appears by the last brief filed by counsel for appellant that he so understands it. He says: “The complaint avers that the defendant entered in January, 1879, during the pendency of the one year lease, and the action ivas commenced in June, 1879, and the trial commenced on September 20, 1880, more than one year after the expiration of the oral lease.”