This is a summary proceeding to recover the possession of the premises known as No. 313 Third avenue, in the borough of Manhattan, New York, and it was instituted in the Municipal Court, Fourth District.
On the 3d of April, 1885, Thomas Mook died seized of the *242premises, leaving a last will and testament, which was duly-admitted to probate on the twenty-ninth of April thereafter, by which he devised the premises to his son Henry R. Mook and wife “ during their joint lives,” but he evidently intended that the survivor of them should continue to enjoy the life estate for the devise of the remainder was on the death of the survivor. At the time of the death of the testator his son, Henry R. Mook, was married to Helen Poole Mook. She died on or about the 3d of March, 1910, and on the 23d of November, 1914, he married Jennie D. Mook, and died on the 24th of February, 1917, leaving her him surviving. On the 9th of July, 1914, Henry R. Mook executed a lease of the premises to the respondent Alt for the term of ten years from May 1, 1915. Alt entered into possession by virtue of said lease and, through subtenants, was in possession at the time of the death of Henry R. Mook, and ever since has so continued in possession thereof without the permission of the appellants. After the death of Henry R. Mook, and on the 27th of November, 1917, the appellants duly served a notice in writing on the respondent Alt and all other occupants of the premises personally, requiring them to quit and surrender possession of the premises on the 31st of December, 1917, and the petition shows that the respondent Alt and his subtenants failed to comply with said notice and continued to hold over and remain in possession of the premises without the permission of the appellants. These facts were set forth in the petition of the appellants for the removal of the respondent and his subtenants. The answer of the respondent admits the allegations of the petition with respect to his possession but joined issue on the other allegations. Said Jennie D. Mook, one of the respondents, who does not appear on the appeal, in an affidavit used on the motion to open the default, claimed to have given her consent to the respondent’s remaining and continuing in possession of the premises.
When the proceeding was brought on for a hearing, after the default was opened, the attorney for the respondent moved for a dismissal on the ground that the court was without jurisdiction, and the motion was granted. The only ground upon which the respondent, in his application to open the *243default, claimed to be entitled to continue in possession, was under said lease from the life tenant and he evidently then claimed, as he claims now, that Jennie D. Mook was a life tenant of the premises, and that he is lawfully in possession by her consent. Unless this contention be sustained, the respondent has no defense on the merits, and there was no ground upon which the final order entered by default should have been vacated. It is perfectly plain, I think, that the will of the testator referred to Helen Poole Mook, the wife of his son at the time of his death, and that Jennie D. Mook took no right, title or interest,in or to the premises by virtue of the will, and it was so adjudicated by the Surrogate’s Court, and the adjudication was affirmed by this court, on an application by her to vacate a decree granting letters of administration with the will annexed in the matter of the estate of Thomas Mook (Matter of Mook, 181 App. Div. 934).
The real point presented for decision is whether the lessee of a life tenant, who remains in possession after the death of the life tenant, and without the consent of the remaindermen and after thirty days’ due notice in writing, served personally upon him, may be removed by them by summary proceedings,' or whether, as contended by counsel for the respondent, their sole remedy is an action in ejectment. The argument of counsel for the respondent is based on the erroneous contention that a summary proceeding will lie only where the conventional relation of landlord and tenant exists. A summary proceeding to recover the possession of real property is a statutory remedy and the Legislature, in conferring it, was not limited to cases in which the conventional relation of landlord and tenant exists, and has not so limited it. It has given such a remedy to landlords in certain cases for the removal of tenants (Code Civ. Proc. § 2231), but it has also conferred the remedy on owners without the existence of the relation of landlord and tenant in certain cases where a person is in possession and holds over and continues in possession after notice to quit, such as was given in the case at bar (Code Civ. Proc. § 2232), and by virtue of subdivision 4 of section 2232 of the Code of Civil Procedure the remedy is given for the removal of a person who, or whose predecessor in interest, “ has intruded into, or squatted upon, any real property, without the per*244mission 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,” and is also given by section 2233 of the Code of Civil Procedure, for the removal of a person who makes a forcible entry in violation of the provisions thereof, or who having peaceably entered, holds possession by force, and for the removal of the assigns and under-tenants and legal representatives of such a person.
This proceeding could not be sustained on the record now before the court on the theory that while the respondent’s entry was peaceful, he holds possession by force within the provisions of said section 2233, for it may be that the latter part of that section should be confined to cases of withholding possession by force after the unlawful entry, although peaceably made, and in any event the petition contains no appropriate allegation showing that the respondent holds possession by force. I am of opinion, however, that it will he under the provisions of subdivision 4 of said section 2232 of the Code of Civil Procedure' on the ground that the respondent has intruded into or squatted upon the premises without the permission of the appellants within the fair intent and meaning of those terms as therein used, and that his occupancy thus commenced has continued without their permission. I do not agree with counsel for the respondent that these provisions should be strictly construed. Originally the statutory provisions authorizing the recovery of possession of real estate by summary proceedings were strictly construed, and it was held that the conventional relation of landlord and tenant by contract between the parties was essential (Benjamin v. Benjamin, 5 N. Y. 383; People v. Simpson, 28 id. 55), but that rule of construction has been gradually abandoned as the Legislature has from time to time extended the remedy, showing a legislative intent to afford this summary remedy to an owner for regaining the possession of his property wrongfully withheld and where no question of title or relating to the right of possession is involved, and the rule now is that where it is predicated, on the theory of landlord and tenant the relation may be created by operation of law. (Common*245wealth Mortgage Co. v. De Waltoff, 135 App. Div. 33; United Merchants’ Realty & Imp. Co. v. Roth, 193 N. Y. 570.) As I view the history of these statutory provisions affording this remedy by which they have been enlarged and extended from time to time, it seems perfectly plain that the Legislature has attempted to afford this statutory remedy not only for the removal of a tenant who has forfeited his right to possession or holds over after his right of possession has terminated, but for the removal of all trespassers. (See 3 McAdam Landl. & Ten. [4th ed.] 31.) By virtue of the express provisions of section 1664 of the Code, the respondent is a trespasser and having entered and derived his right of possession from a life tenant only, he is precluded from questioning the title and right of possession of the remaindermen precisely as if they had been his landlord. (Barson v. Mulligan, 198 N. Y. 23; Hinton v. Bogart, 166 App. Div. 155; 18 Am. & Eng. Ency. of Law [2d ed.], 419.) His only pretense of a right of possession after the death of a life tenant is the‘alleged consent of the second wife of the life tenant, to which reference has been made. A trespasser withholds possession without right (38 Cyc. 1035), and on the theory that this particular instance of a trespass has been overlooked by the Legislature in prescribing the remedy by summary proceedings, the respondent challenges the appellants’ right to regain possession otherwise than by an action in ejectment, which would necessarily enable him to retain possession for a considerable period longer, and unless this proceeding will he against the respondent, the appellants have no remedy excepting by an action in ejectment, for the Legislature has seen fit to prescribe that one lawfully entitled to possession of real property may not regain possession by force. (Code Civ. Proc. § 2233.) Owing to the fact that his landlord’s rights expired with his he probably is not removable under subdivision 1 of section 2231, on the ground that he is a holdover after the expiration of his term for that is a remedy given to a landlord. This is an additional reason for construing subdivision 4 of section 2232 as applicable. It is perfectly clear that by the provisions of said section 1664 of the Code of Civil Procedure the respondent is and ever since the death of his lessor has been in possession as a trespasser. It is likewise perfectly plain that if instead *246of being in possession and remaining in possession as the life of his landlord expired he had intruded into possession or squatted upon the premises immediately after the death of the life tenant, he would be removable under the express terms of said subdivision 4 of said section 2232. But his possession in the one case as in the other is and would be precisely the same and is and would be that of a trespasser, and by declaring him to be a trespasser I think the Legislature has placed him in the same category as if he had entered originally without right, which would clearly make him an intruder or squatter and subject him to removal by summary proceedings under said subdivision 4 of section 2232. It appears by the revisers’ note to that section that subdivision 4 was a new enactment recommended by the revisers and suggested to them by the provisions of chapter 396 of the Laws of 1857, which made it a misdemeanor to intrude or squat upon land without the permission of the person entitled to the possession thereof; and the revisers say that their object in recommending the enactment of said subdivision was more effectually to protect the rights of the owner by giving him this summary remedy for the removal of the trespasser. The phraseology of the subdivision is doubtless due to this origin thereof, but there is no reason why the legislative intent, plainly manifested thereby to afford a summary remedy for the removal of a trespasser, should be limited to the letter of the law as thus drafted by the revisers. There is no reasonable ground for inferring a legislative intent to differentiate between trespassers or for the court in construing a statute designed to enable owners speedily to regain possession of their premises unlawfully withheld from them by trespassers, to be guided in the construction by the letter rather than by the spirit of the statute. To hold that a trespasser who enters after the termination of the life estate may be so removed but that one who becomes a trespasser by failing to remove at the expiration of a life estate cannot be so removed, would in my opinion give an unduly narrow construction to the provisions of the statutes and would only result in further legislation to cover what the court would thus decide was an omission in the statutory enactment. It is the province of the court so to construe statutes affording civil remedies as *247to carry into effect the spirit thereof, even though the Legislature has not used appropriate words to express clearly its intent. If the Legislature had not declared one so holding over to be a trespasser he would be a tenant by sufferance at common law until the termination of the tenancy by a notice to quit (Livingston v. Tanner, 14 N. Y. 64, 69; Torrey v. Torrey, Id. 430), and in such case after the notice, which has been given here, he would have been removable by summary proceedings. (Code Civ. Proc. § 2231, subd. 1; Id. § 2232, subd. 4; Id. § 2236.) If, therefore, the contention of the respondent prevails, the Legislature, by declaring one so holding over to be a trespasser, has restricted the rights of the owner with respect to obtaining possession. I think it is manifest that there was no such legislative intent. At common law a guardian or trustee holding possession for an infant or one holding possession as husband seized in the right of his wife only, holding over after termination of his particular estate, did not become a tenant by sufferance or otherwise, but said persons were deemed “ mere intruders, abaters and trespassers,” and as to them the statute declaring them to be trespassers is declaratory of the common law, but with respect to the lessee of a life tenant so holding over the statute declaring him to be a trespasser changed the common-law character of the holding and rendered it “ tortious, precisely like that of an intruder or abater at common law.” (Livingston v. Tanner, supra.) There appears to be no controlling precedent on this precise point but the construction I have given was applied to these statutory provisions by the Appellate Term in the Second Department in a well-considered opinion by Mr. Justice Kapper in Newman v. O’Rourke (149 N. Y. Supp. 514), and was expressly given thereto in the unanimous opinion of the Court of Appeals in Barson v. Mulligan (supra), where the court in an action in ejectment was adjudicating with respect to the rights- of a lessee of the life tenant who remained in possession after the death of the life tenant and claimed to be entitled to remain in possession as mortgagee. The court, in holding that having lawfully obtained possession as lessee, the tenant could not continue that possession as mortgagee after the expiration of the lease without further arrangement, stated that it was her duty to surrender possession upon *248demand, and that if she failed so to do, she was subject to removal by summary proceedings. While, therefore, the precise point was not presented for adjudication in that case, the statement of the law thus deliberately made by a unanimous court was pertinent to the decision and is entitled to great weight.
For these reasons I am of opinion that both orders should be reversed, with costs to the appellants in this court and in the Appellate Term, and that the final order in their favor for the removal of the respondent and other occupants of the property granted by default, should be allowed to stand.
Determination affirmed, with costs.