(198 N.Y.S.)

The first issue which defendant attempts to raise is the right of plaintiff, as tenant, to occupy the land after the destruction by defendant of the building upon the land. The complaint alleges in paragraph 2 that on and prior to November 5, 1915, Marie Moeller et al. were the owners in fee and in possession of premises in the city of Buffalo, N. Y., and known as Nos. 511 and 513 Main street, which were more particularly described as follows. Then follows a description of a piece of land running south 100 feet, east 25.63 feet to a wall, west to Main street, and south 25.38 feet to place of beginning. This paragraph defendant admits. The complaint in its third paragraph alleges that on November 5, 1915, said Moeller et al. leased in writing the hereinabove described premises, and attaches a copy of lease. Defendant admits the making of the lease attached to the complaint, but denies that the lease covered the premises described in paragraph II of plaintiff's complaint. It will be noted that the lease described the premises as follows:

"Known as No. 511 and No. 513 Main street, being the entire building thereat on ground according to deed held by party of the first part, 25x100 feet."

This action is not brought to recover premises under a deed, but under a lease which defendant admits was executed. Therefore no issue of fact is raised by defendant's denial, attached to its admission in paragraph second of its answer. The court could only eject defendant from and give possession to plaintiff of the premises described in the lease.

In paragraph third, in paragraph tenth, in paragraph twelfth, and in paragraph sixteenth defendant endeavors to allege that plaintiff was not in possession when the warrant of dispossession was issued. These allegations raise no issue of fact, because, taking as true all of the allegations of the answer, the plaintiff was in constructive possession through its subtenants. Mando v. Kitchell, 132 App. Div. 390, 116 N. Y. Supp. 691; Simon v. Hermann et al. (Mun. Ct.) 129 N. Y. Supp. 1014. In addition to that, defendant in its petition attached to the answer designated plaintiff as a tenant, served notice of removal upon it, and asked judgment removing the plaintiff from the premises. Defendant also admits the execution of the warrant.

In paragraph third defendant alleges that the subtenants of plaintiff were in possession of the premises without authority. The lease, Exhibit I, attached to plaintiff's complaint, which defendant admitted, gave ample authority to sublet. It contained this clause:

"It is further agreed that the party of the second part may let or underlet the whole or any part of the said premises to a reputable business not deemed extrahazardous."

There was no obligation under said clause upon the part of the plaintiff to obtain any consent of the owner or its approval of a tenant. All that was required was that the tenant conduct a reputable business not deemed extrahazardous. Blumberg, the subtenant, was in open, notorious possession, and no claim was made that his business was not reputable, or that it was deemed extrahazardous.

In paragraph eighteenth defendant denies an allegation that de

fendant's possession is without the permission of plaintiff. Such a denial is not an affirmative allegation that defendant's possession is with the permission of plaintiff. Even if it had that effect, the court could not recognize it, in the face of the remaining admitted allegations of the complaint.

Without detailing all of the allegations of the complaint and the admissions of the answer, it is apparent that defendant, by admitting in folios 1 to 15 of its answer the lease, the court proceedings, and its present possession, has admitted all the essential material allegations of plaintiff's complaint to authorize judgment upon the pleadings. Defendant has admitted the taking possession by plaintiff of the property under the lease; that plaintiff (who as a matter of law was in possession through its subtenants) was removed by the City Court; that that judgment was reversed by the Court of Appeals, and that defendant is now in possession; that it refuses to surrender possession to plaintiff. If, as the court holds, the plaintiff had constructive possession at the time of removal, then the refusal of defendant to surrender possession to plaintiff amounts to a withholding of possession from plaintiff.

Careful analysis of the defendant's further separate and distinct answer does not reveal any controversion of any essential material allegation of the complaint, but alleges by way of an equitable plea certain facts and claims. The said separate answer sets forth the following claims for equitable relief:

First. That plaintiff was not in possession at the time of the execution of the dispossession warrant from City Court. The court has already set forth that the possession of the subtenants was the physical possession of the plaintiff.

Second. That by the agreement of February 27, 1920, between plaintiff and his subtenant, Blumberg, attached to the answer, the agreement of lease of March 6, 1919, between the same parties, was merged and extinguished, and a new term created. It is apparent, from an examination of the agreement of February 27, 1920, that the sublease of March 6, 1919, was merged and extinguished, and all rights of the subtenant surrendered to the plaintiff. If plaintiff had the right to sublet, which it had by its lease, such right must carry with it the right to repossess itself upon default or removal or relinquishment of the subtenant.

Third. The defendant claims that, after it had served notice of cancellation upon plaintiff, plaintiff procured the surrender of his subtenant, Blumberg, by paying the sum of $15,000, stipulated in the subtenant's lease to be paid in such event. Defendant claims that in doing so plaintiff made certain false statements to its subtenant, Blumberg, and deceived and defrauded the defendant. It must be understood that at that time the defendant had served notice of the termination of the lease upon plaintiff. Whatever plaintiff did to comply with that order of removal by defendant cannot as a matter of legal defense be construed as a wrong against defendant. If wrong was done by plaintiff to its subtenant, the latter has his remedy against plaintiff. But such wrong, if any was committed, was perpetrated upon

(198 N.Y.S.)

the subtenant, Blumberg, and cannot inure to the defendant herein as a legal defense. Wing v. De La Rionda et al., 131 N. Y. 422, 30 N. E. 243.

The demand for affirmative relief in paragraph eleventh of defendant's answer is ineffective. As before indicated, the plaintiff did not violate its lease with defendant by subletting to Blumberg or by obtaining à cancellation of Blumberg's tenancy. Defendant could only take advantage of such violation, if any had existed, by a three-day notice, which the answer does not allege was ever served. Nor is defendant's demand even denominated a counterclaim.

Defendant insists that by the order in summary proceedings the relation of landlord and tenant ceased, citing Terwilliger v. Browning, King & Co., 222 N. Y. 47, 118 N. E. 216. That case and similar ones concern a statute relating to nonpayment of rent, where a right to redeem is reserved by statute. The reversal of the summary proceedings must of necessity place the parties as a legal proposition where they were before the erroneous judgment of removal.

Owing to the elaborate, detailed, and therefore more or less necessarily involved pleading, the court has felt constrained to devote many hours to a careful study and determination of the questions whether an issue of fact or a legal or equitable defense has been raised by defendant's answer. From such study, and as indicated above, there is no material fact in dispute, or alleged in the answer, that can affect plaintiff's right to possession of the premises, unless it be the equitable claim of defendant, which is carefully set forth and preserved in the

answer.

[5] The defendant claims that it has alleged an equitable defense. The substance thereof is that in good faith it served upon plaintiff a notice of termination of its lease under the three months clause, the defendant believing that it had such power of termination; that the plaintiff, with an intention to resist such surrender, made false statements to its subtenant to procure his removal and thus gain actual possession for the purpose of defrauding, harassing, and annoying the defendant; that when the City Court of Buffalo removed the tenants of the premises the defendant in good faith entirely demolished the building and erected upon the land the Main Street entrance to a $1,000,000 theater; that plaintiff's lease only called for the entire building on ground; that the entire building has been demolished by defendant, acting in good faith upon a judgment of a court of competent jurisdiction, to wit, the City Court of Buffalo; that it is impossible to grant restitution to plaintiff of the destroyed building; that there remains but three years of the term of plaintiff's lease; that plaintiff did not at the time of dispossession conduct a business upon the premises; that the plaintiff's lease with Blumberg was coextensive in duration with its own lease with the owner, and together with the monthly subtenancy of the photographer, fixed until the end of plaintiff's lease with the owner, the exact value in money of plaintiff's right to the premises; that the Court of Appeals, with these facts before it, declined to order restitution; that a judgment in ejectment would not place plaintiff in possession of the building leased by it, but only in

possession of a theater entrance, which would require extensive alterations, to be adaptable for any other purpose for the remaining three years of plaintiff's lease with the owner; that plaintiff's damage is fixed by the income from the subtenants, and that plaintiff is not acting in good faith in seeking ejectment, instead of its adequate remedy at law in damages.

By its motion for judgment on the pleadings, the plaintiff admits the allegations of the answer only for the purpose of procuring judgment in its favor. The court cannot for any other purpose upon this motion consider them as admitted or proven. In the case of McCann et al. v. Chasm Power Co., 211 N. Y. 301, 105 N. E. 416, the court, acting in equity, refused to enjoin a concededly continuing trespass and invasion of plaintiff's land for the purpose of protecting the plaintiff's technical and insubstantial right. Mr. Chief Justice Willard Bartlett dissented, saying that he was "unable to classify the right to the possession of one's own land in the category of technical and insubstantial rights."

In the light of that decision, and the cases cited in the prevailing opinion, and the refusal of the Court of Appeals in this case to grant restitution, how can this court say that, if defendant should upon a trial enlarge by proper proof and establish its equitable defense, a court of equity might not refuse the plaintiff physical possession of the land and limit its remedy to an action at law, and so determine, even though defendant knew an appeal was pending at the time it demolished the old building and erected the new?

[6] Plaintiff is not entitled to judgment, if the answer entitles the defendant to any relief, legal or equitable. Reppert v. Hunter, 180 App. Div. 680, 167 N. Y. Supp. 857; Clark v. Levy, 130 App. Div. 389, 114 N. Y. Supp. 890; Wetmore v. Porter, 92 N. Y. 76. In denying plaintiff's motion for judgment on the pleading, the court has determined that the only facts in issue are those in support of and in denial of defendant's claim for equitable relief. This decision will relieve the court upon the trial, if it so desire, from the laborious task of determining the issues raised by the pleadings.

Motion for judgment on the pleadings denied, with costs.

(120 Misc. Rep. 349)

EVERETT v. BROWN et al.

(Supreme Court, Special Term, Onondaga County. February 2, 1923.) 1. Arbitration and award 69-Statute relating to correction of award does not apply where confirmation is opposed on ground of abandonment.

Çivil Practice Act, § 1458, providing for the modification or correction of an award of arbitrators, does not apply to a case where motion to confirm an award is opposed on the ground that plaintiff has abandoned the arbitration proceedings.

2. Arbitration and award

82(1)—Under statute court is without power to set aside award because against weight of evidence.

Civil Practice Act, § 1456, providing that, at any time within one year after an award is made, any party may apply to the court for an order For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(198 N.Y.S.)

of confirmation, and that the court must grant such an order, unless the award is vacated, modified, or corrected as prescribed by sections 1457, 1458, is mandatory, and the court has no discretion to vacate the award, because it is against the weight of the evidence, or even because there is no evidence to support it, and the award will not be set aside, where the arbitrators have kept within their jurisdiction.

3. Arbitration and award 31-Arbitration proceedings not governed by rules applicable to legal actions.

Though an arbitration partakes of the nature of a quasi judicial proceeding, the strict rule governing actions are not applicable, and to require the arbitrator to follow the fixed rules of law in arriving at his award would defeat the object of the proceedings.

4. Arbitration and award 77-Evidence held not to sustain charge of partiality of arbitrator.

The fact that an arbitrator made an affidavit in an action pending between the parties to the arbitration a few days after he had taken part in making the award was not sufficient to sustain a charge of partiality, where the affidavit did not show any bias, but merely related certain facts which he had observed and certain things which he had heard.

5. Arbitration and award 77-Burden of showing partiality of arbitrator is on party making the charge.

The partiality of an arbitrator must be clearly shown before the court will set aside his award for that reason, and the burden of proving partiality rests on the party making the charge.

6. Arbitration and award 16(4)-Action to enjoin held not abandonment of pending arbitration proceedings.

Where an arbitration agreement provided that no action at law or equity should be brought by either party until after the award was made and motion to confirm same had been determined, the act of plaintiff in bringing suit, before the award was confirmed, to enjoin defendants from selling or disposing of certain property which the arbitrators found should be left on the premises at the expiration of the lease, was not an abandonment of the arbitration proceedings, especially in view of Code Civ. Proc. § 2383 (since repealed by Arbitration Law, § 7), providing that submission to arbitration could not be revoked by either party if all the evidence was in and the matter finally submitted to arbitrators, and in view of Arbitration Law, § 2, providing that a contract to settle a controversy by arbitration should be irrevocable save on the existence of equitable grounds for revoking any contract, and the rule at common law being that neither party could revoke an agreement to arbitrate after the final award had been made without consent of the other.

7. Arbitration and award may be stayed.

10-Action brought contrary to arbitration agreement

Where, contrary to an arbitration agreement providing that no action should be brought by either party until after the award was made and confirmed, plaintiff, before the award was confirmed, sued to enjoin defendants from selling or disposing of certain property which the arbitrators found should be left on leased premises at the expiration of the lease, defendants might under Arbitration Law, § 5, obtain stay of the injunction proceedings until the arbitration was finally determined.

8. Arbitration and award ~66—A rule of liberal interpretation will be applied to uphold award.

When an award of arbitrators is free from corruption or misconduct of the arbitrators, the rule of liberal interpretation to uphold such award should be invoked.

Proceeding in arbitration by Daniel S. Everett against Fred E. Brown and others. On motion by plaintiff for an order confirming award of arbitrators chosen by the parties pursuant to the provisions

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes