plaint; and, if brought without such a consent or order, the share of the plaintiff may be charged with the whole cost of proceeding; and where infants are interested, the complaint shall state whether or not the parties owned any other lands in common." In Pritchard v. Dratt, 32 Hun, 417, the court discussed this rule and held that the rules of court do not give, nor can they take away or abridge, a right of action secured to a party by the common or statutory law of the land, and that as there was no provision in the statute relative to the partition of lands among tenants in common, which requires that all the lands owned by the parties to the action as joint tenants or tenants in common shall be embraced in one suit, it was beyond the power of the court to deprive a party of the right so conferred upon him by statute. In Beetson v. Stoops, 91 App. Div. 185, 86 N. Y. Supp. 332, the contrary view obtained, however, and it was held that an action for partition will only lie where it embraces all the lands possessed by the parties as tenants in common, citing, among other cases, Matter of Moore, 108 N. Y. 280, 15 N. E. 369, which held that rules of court made under special statutory authority have the force and effect of statutes. [2] The decisions above referred to were made, however, before rule 65 was amended in 1910. On September 1, 1910, the words "or without the special order of the court, made on notice to all parties who have appeared in the action to be obtained before application for the relief demanded in the complaint" went into effect by amendment. I think it quite plain that the prohibition of the rule can no longer be regarded as absolute, and that it is contemplated that an action embracing only part of the lands may be instituted and maintained, the only requirement being, in the absence of consent, that before application for the relief demanded in the complaint a special order of the court must be obtained on notice to all parties who have appeared in the action. In order that the plaintiff may obtain the relief he seeks, such an order must be obtained, and it is stated on his behalf that the purpose is to obtain such an order. The motion to sustain the demurrer should therefore be granted, with $10 costs. Settle order on notice. (112 Misc. Rep. 377) PEOPLE v. BYRNE. June, 1920.) (Supreme Court, Special Term for Motions, Kings County. Criminal law 1073-Certificate of reasonable doubt granted on ground of unjust conviction. Where a stranger, who saw defendant find a gun, attempted to take it from her, and they were both arrested, and he was discharged, and defendant was convicted under Penal Law, § 1897, relating to dangerous weapons, and sentenced for three years, and where her request to have him testify in her behalf was denied, and her motion for a new trial was denied by a divided court, a certificate of reasonable doubt would be granted, in view of Code Cr. Proc. § 527, authorizing new trials where the verdict is against the evidence or unjust. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (184 N.Y.S.) Dorothy Byrne was convicted and sentenced under the law prohibiting the carrying and use of dangerous weapons, and she moves for a certificate of reasonable doubt. Motion granted, and petitioner admitted to bail. See, also, App. Div., 185 N. Y. Supp. 154. Harry E. Lewis, Dist. Atty., of Brooklyn, for the People. Belfer & Belfer, of Brooklyn (Julius S. Belfer, of Brooklyn, of counsel), for defendant. FAWCETT, J. This is a motion for a certificate of reasonable doubt, in connection with the defendant's appeal from a conviction of a violation of section 1897 of the Penal Law (Consol. Laws, c. 40), after a trial in the Court of Special Sessions. The record herein shows that the only witness for the people was the arresting officer. His testimony is substantially as follows: That on March 10, 1920, about 9:30 p. m., at Bergen street, near Hoyt street, Brooklyn, N. Y., he saw a man, James Francis Phillips, trying to pull a gun out of the defendant's hand. He questioned them. They said that she picked up the gun, and that he was trying to take it away from her. He placed both of them under arrest. He testified to nothing else of importance. The defendant was the only witness called in her behalf. Although she requested to have the stranger, James Francis Phillips, called in her behalf, that privilege was denied her. She had no other witnesses, because her case was intended to be adjourned by her counsel, who failed to appear, as he was engaged elsewhere. Her testimony is substantially as follows: While waiting for a Bergen street car, her attention was suddenly attracted to a shining object in the gutter. She picked it up and examined it, when a stranger, who saw her pick it up, and who recognized it to be a gun, attempted to pull it away from her, when an officer came along and arrested the two of them. The man was discharged on the hearing before the magistrate, and this defendant was held for trial in the Court of Special Sessions. The court sentenced defendant to the Bedford Reformatory, where she may be confined for 3 years. Subsequently a motion for a new trial in the interest of justice was made before the court, composed of the three judges who tried defendant, and Mr. Justice Salmon, dissenting from the majority, decided in favor of a new trial. This case seems to come under the rule of People v. Miles, 173 App. Div. 179, 158 N. Y. Supp. 819. In this case the defendant was tried for the violation of section 1897 of the Penal Law, the same as in the case at bar. The sentence of the court in that case was 1 year and 4 months. In the case at bar the sentence amounts to 3 years. The defendant in the instant case, never having been previously convicted, nor shown to have possessed the revolver under any other circumstances than as testified to herein, the sentence seems unjust. The reasoning of the court in the case of People v. Miles, supra, is peculiarly applicable herein. The court said: "While the courts in civil actions have long recognized the right of revers. ing judgments, because they were for inadequate or excessive amounts, there appears to have been an impression among the members of the bar that the judgment in a criminal case could not be disturbed on account of an excessive sentence, and this impression has been so far controlling that many an act of injustice has been consummated under the forms of law, which should have been righted in the appellate court; many an unjust sentence has been endured, because counsel have failed to invoke the powers of the appellate tribunals to temper individual prejudices with judicial discretion. Under the provisions of section 527 of the Code of Criminal Procedure the court is authorized on appeal to grant a new trial, if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below, and this is clearly the equivalent of the provisions of sections 999 and 1317 of the Code of Civil Procedure, in so far as it relates to the judgment. * An appeal from a judgment brings up the question whether justice has been done in the particular case, and an excessive sentence, a sentence which is unjust in its relation to the offense for which the prisoner has been convicted, is against law just as much as a verdict of a jury for excessive damages in a civil action is against law. The law, theoretically at least, is founded in justice, and an injustice is against law in a judicial sense, and it is entirely immaterial whether the injustice appears in the sentence, or in the proceedings leading up to the sentence." The sentence of the defendant seems to be so out of proportion to the crime for which she was convicted, and having in mind that the trial court was divided in its decision on the motion for a new trial, I entertain a reasonable doubt as to whether the conviction should stand. The application for the certificate prayed for is granted, and the court will admit her to bail in the sum of $500. Application granted. (113 Misc. Rep. 178) STONE et al. v. 434 BROADWAY REALTY CORPORATION. (Supreme Court, Special Term, New York County. October 1, 1920.) 1. Landlord and tenant 86 (1) —Agreement to execute written option to extend lease, if tenant makes alterations, enforceable. An agreement between landlord and tenant that, if the tenant will make certain alterations and improvements, the landlord will execute written option to extend the lease on stated terms for an additional period, is valid and enforceable, when performed on one side, as by the tenant. 2. Vendor and purchaser 231 (16) —Agreement to extend lease more than 3 years must be recorded as against purchasers. Real Property Law, § 290, subd. 3, and section 291, require that an agreement by a landlord to extend a lease for 5 years, if the tenant makes certain alterations and improvements, be in writing and recorded, in order to be valid against subsequent purchasers in good faith and for value. 3. Specific performance ~6-Lack of mutuality no defense, after full performance. Where a landlord agreed to execute written option to extend the lease for 10 years, if the tenants would make certain alterations and improvements, and the tenants made the alterations, the landlord cannot defeat their suit for specific performance on the ground that the contract was not mutual in its remedy. Action by Nathan H. Stone and Max Schleimer against the 434 Broadway Realty Corporation. On motion by defendant for order sus For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (184 N.Y.S.) taining demurrer interposed to the first cause of action in the second amended complaint. Motion denied. Morrison & Schiff, of New York City (Samuel W. Dorfman, of New York City, of counsel), for the motion. Isaac Gutman, of New York City (Max Schleimer, of New York City, of counsel), opposed. GIEGERICH, J. The cause of action which the defendant has demurred to alleges, shortly stated, that the defendant, as landlord, orally agreed with the plaintiffs, tenants, that if the plaintiffs, who were then in possession as tenants of the premises in question, made various contemplated additions, improvements and alterations to the demised. premises, the defendant would give them an option to extend the lease, on certain stated terms, for an additional 5 years, and would reduce that agreement to writing. It is further alleged that the plaintiffs did the work on the premises as specified, but the defendant refused to execute the written agreement. [1] There is no dispute in the briefs on the point of the power of the court to enforce such an oral agreement, and the cases hold that such an agreement is valid and enforceable when performed on one side: Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273; Cooley v. Lobdell, 153 N. Y. 596, 47 N. E. 783; Everdell v. Hill, 58 App. Div. 151, 68 N. Y. Supp. 719; Schirmer v. Rehill, 57 Misc. Rep. 439, 109 N. Y. Supp. 745; Brune v. Vom Lehn, 112 Misc. Rep. 342, 183 N. Y. Supp. 360. On behalf of the defendant it is urged that the action for specific performance cannot be maintained until the alleged option has been exercised. The grievance of the plaintiffs is not, however, that the defendant has refused to give them a lease after their exercise of their option to demand such an extension. Their grievance is that the defendant will not perform its agreement to execute a writing setting forth that option. The defendant cites the case of Goldsmith v. Tolk, 138 App. Div. 287, 122 N. Y. Supp. 1051, affirmed 203 N. Y. 573, 96 N. E. 1115, which held that the plaintiff did not need to have the alleged oral contract of guaranty reduced to writing, because if such an oral contract existed the plaintiff could enforce it without any writing. [2] In the present case, however, the remedy at law is not adequate because the statute requires, as I construe it, that an agreement of this kind, as the extension provided for is for a period of over 3 years, must be in writing (Real Property Law [Consol. Laws, c. 50] § 290, subd. 3) and recorded (section 291) in order to be valid against subsequent purchasers in good faith and for a valuable consideration. In support of the demurrer reliance is placed upon the rule that specific performance will not be decreed when the contract is not mutual in its remedy, and Wadick v. Mace, 191 N. Y. 1, 83 N. E. 571, is cited on the point among other cases. The opinion in that case, however, calls attention to the fact that the rule applies only to executory contracts. If the plaintiffs here had sought this relief before they had performed the contemplated work on the demised premises, the case would fall within the rule. [3] But before they brought this action they had fully performed all that was to be performed by them to entitle them to what they now seek, and the contract became an executed one for the purposes of this suit, and no longer falls within the rule or the reason underlying the rule to which reference is made above. The motion to sustain the demurrer should therefore be denied with $10 costs. Settle order on notice. (112 Misc. Rep. 325) PEOPLE ex rel. LEVERING & GARRIGUES CO. v. LEO et al. Certiorari 47-Motion for restraining order in certiorari to review an affirmance of building superintendent's order denied. In view of Labor Law, § 20, as amended by Laws 1913, c. 492, requiring the completion of the flooring, or the filling in between the floors, or the laying of the underflooring on each story as the building progresses, and Building Code, § 195, containing similar provisions as to flooring, and where an order of the building superintendent under Greater New York Charter, §§ 406, 411, prohibiting relator, a subcontractor, from proceeding with skeleton steel work to the height of seven stories on a building in which no floors had been filled in, had been affirmed by the board of appeals, without modifying it as permitted by section 719, a restraining order in relator's certiorari would be denied. Certiorari proceeding by the People, on the relation of the Levering & Garrigues Company, against John P. Leo and others, to review a decision of the Board of Appeals affirming a violation order of the building superintendent. Relator's motion for a restraining order denied. William H. Good, of Brooklyn, for relator. John P. O'Brien, Corp. Counsel, of New York City, for defendants. DONNELLY, J. This is a motion for a "restraining order" in a certiorari proceeding to review a decision of the board of appeals, which affirmed by a vote of four to three a violation order of Building Superintendent Miller, prohibiting relator from proceeding with the erection of its skeleton steel work upon the Metropolitan Life Insurance Company's Annex Building, Madison Square. A writ of certiorari has been allowed, issued, and served, returnable on June 15, 1920, before this court. The superintendent of buildings has been added as a party defendant to subject him to the effect of the decision, and he appears herein without objection. The relator is a steel corporation, and as subcontractor under the Fuller Construction Company was erecting on February 7, 1920, the seventh story or tier of the 16-story building, and no concrete arches between the open steel floor beams had been erected below by the independent contractors whose duty it was to erect the concrete arches. At that date, and down to the 10th of May, 1920, the mechanics and laborers of said independent contractors were absent from the struc For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |