People v. Horowitz, 309 N. Y. 426, 131 N.E. 2d 715 (1956)

Putnam, John G., Jr.

English

Digital Commons @ University at Buffalo School of Law

Buffalo Law Review Volume 6 Number 1 Article 35 10-1-1956 Real Property—Licensee John G. Putnam Jr. Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Property Law and Real Estate Commons Recommended Citation John G. Putnam Jr., Real Property—Licensee, 6 Buff. L. Rev. 67 (1956). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol6/iss1/35 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. COURT OF APPEALS. 1955 TERMREAL PROPERTYLicensesDefendant was indicted for grand larceny for misappropriating fundsdeposited by complainant as advance rental and security for the performance ofan agreement, whereby a concessionaire contracted to install vending machines inthe defendant's theaters. In unanimously affirming the Appellate Division and thetrial court, the Court of Appeals, in People v. Horowitz,' approved a constructionof Section 233 of the Real Property Law which excludes licenses from its scope.Prior to the enactment of Section 233, money deposited by a tenant with hislandlord as security for performance created merely the relationship of debtor andcreditor, and the landlord's insolvency or misappropriation of the funds gave riseonly to an action for debt.2 This section, however, causes such deposit to becomea trust fund, remaining the property of the tenant, although in the custody of thelandlord. The landlord is liable in conversion at the time of misappropriation andthe tenant does not have to wait until the term expires.3 The landlord is alsosubject to criminal prosecution.The section, by its terms, is limited in its application to funds deposited "forthe use or rental of real property." Two questions which arose in the instant casewere whether the section included licenses within its scope, and if not, whetherin fact complainant and defendant had a lease or a license. The Court held that thelanguage used in the statute imported the ordinary landlord and tenant relationshipinvolving the transfer of possession of a designated space of real estate; hence, amere license is not within the scope of the statute.4 A license is differentiated froma lease in that it does not operate to confer on, or vest in, the licensee any title,interest, or estate in such property.5In holding that the instrument here created a license only, the Court drewon analogous cases arising under the emergency rent control laws that a conces-sionaire, in the absence of a demise of specific space in a building,6 or where he1. 309 N. Y. 426, 131 N.E. 2d 715 (1956).2. Mallory Associates v. Barving Realty Go., 300 N. Y. 297, 90 N.E. 2d 468-(1949).3. 2710 Eighth Ave. v. Frank Formam Pharmacy, 180 Misc. 376, 42 N. Y. S.2d 887 (1st Dep't 1943).4. Planetary Recreations v. Kerns, 184 Misc. 340, 54 N. Y. S. 2d 418 (City Ct.1945).5. Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., 191 Misc. 884, 82N. Y. S. 2d 572 (Sup. Ct. 1948).6. Muller v. Concourse Investors, 201 Misc. 340, 111 N. Y. S. 2d 678 (Sup.Ct. 1952). Even a diagram of the space demised has been held insu.ffiient,Wash-O-Matio Laundry Co. v. 61 Lefferts Ave. Corp., =Vrr nqte f5BUFFALO LAW REVIEWoperates subject to the dominion of the owner,7 possesses only a bare license.Thus in the instant case, where the concessionaire did not have exclusive possessionof any defined areas of the defendant's theaters, where the contract did notspecify where his stands and machines were to be located, and where he wasallowed to hawk his wares anywhere in the theater, a bare license existed, and thedefendant was not subject to prosecution for larceny for misappropriation ofcomplainant's deposit.Liability of Landlord Out of PossessionIn De Clara v. Barber Steamship Lines s the Court was faced with a difficultproblem concerning the liability in tort of a landlord out of possession. The actionwas one for wrongful death brought by the administratrix of decedent's estate.By a lease agreement defendant landlord had covenanted to make repairs attenant's request and in addition had reserved the right to enter and inspect thepremises at any time. In pursuance of this agreement landlord maintained anelaborately equipped repair crew on the property at all times with the under-standing that landlord should be solely responsible for all repairs. Landlord wasaware of the faulty equipment, which caused decedent's death, for some timeprior to the accident.The Court held, reversing the Appellate Division, that a landlord hasreserved such privileges of ownership as to incur liability in tort where he mayenter the premises at will to inspect for and correct any defects he may find.The owner of a public building or one which abuts upon a public thorough-fare owes a duty of care toward the public even though he has leased the premisesto another, if he has covenanted to repair the property'0 Aside from this exception,which does not apply in the instant case, it was held in Cullings v. Goetz," that amere covenant to repair will not create such possession and control of thepremises in the landlord so that he may be held liable for injuries to personsresulting from failure to repair.The Cullings case, the leading New York case on the question of landlondliability, sets forth a general review of the New York law. Both the majority and7. Halpern v. Silver, 187 Misc. 1023, 65 N. Y. S. 2d 336 (City Ct. 1946); Mullerv. Concourse Investors, supra, note 6.8. 309 N. Y. 620, 132 N.E. 2d 871 (1956).9. 285 App. Div. 1062, 139 N. Y. S. 2d 568 (2d Dep't 1955).10. Appel v. Muller, 262 N. Y. 278, 186 N.E. 785 (1933).11. 256 1T. Y. 287, 176 N.E. 397 (1931); This is no more than "the assumptionof a burden for the benefit of the occupant with the consequences the same as ifthere had been a promise to repair by a plumber or contractor."

Real Property—Licensee

https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=3720&amp;context=buffalolawreview

Real Property—Licensee

Abstract

Similar works

Full text

Available Versions

Digital Commons @ University at Buffalo School of Law