25 N.Y.S. 7 | N.Y. Sup. Ct. | 1893
On the 13th of April, 1892, the respondent filed his petition, duly verified, with Henry D. Shores, justice of the peace, alleging, among other things, that he, the petitioner, as landlord, rented certain premises to Aaron D. Huyck, the appellant, who took possession of the premises under a stipulated rent per month, about the 10th of April, 1891, and that the said Aaron D. Huyck was, at the date of said petition, indebted to the petitioner in the sum of $900 for rent; that he duly caused to be served on the defendant, Huyck, a notice in writing on the 6th day of April, 1892, requiring in the alternative the payment of the rent or the possession of the premises; that the rent or any part of it had not been paid, and that the defendant, Huyck, was holding over and continuing in possession after a default in the payment of rent, without the consent of the petitioner. On presen
“Aaron. D. Huyck,. for answer to the petition in the above-entitled proceedings, dated the 13th day of April, 1892, denies that he is indebted to the said David Bloom in the sum of $900 for the month of April, 1892, or in any sum for rent, during the year ending May 1, 1892.”
“The said Aaron D. Huyck had fully paid the rent of said premises for the term of the lease, and asks judgment of this court that the proceeding be dismissed, with cost against the petitioner.”
To this answer the petitioner interposed a demurrer, which demurrer was overruled. The petitioner thereupon demanded, before a venire was issued, a bill of items or particulars of the amounts paid by defendant, as set forth in the answer; and the justice thereupon ordered the defendant to furnish such bill of particulars. To this rule and order this defendant excepted, and refused to furnish the bill of particulars asked for by the plaintiff. The defendant thereupon asked for a jury, and tendered to the justice the amount fixed by the justice as the costs of a jury. The court refused to draw a jury until a bill of particulars as ordered was furnished. ¡No bill of particulars being furnished by the defendant, the plaintiff immediately moved for a warrant to dispossess the defendant, Huyck, from the premises described in the petition. The defendant objected to any further proceedings until a jury was drawn, and the matter tried. The objection of the defendant was overruled, and the plaintiff’s motion was granted, and a' judgment entered against the defendant directing a warrant to be issued against him for the delivery to the plaintiff of the possession of the premises described in the petition, with $2.82 costs against the defendant. From this judgment the defendant appealed to the county court, where the judgment of the justice was affirmed, with costs, from which judgment of 'affirmance, the appellant, Huyck, appeals to this court.
The question involved in this case is whether the justice could legally ignore the issue made by the defendant by his denial of the allegations of the petition, and could proceed summarily after a jury was demanded by the defendant, and the fees and expense tendered, and enter a judgment of eviction, and issue his warrant against the defendant under his objection. Section 2244 of the Code of Civil Procedure provides as follows:
“At the time when a precept is returnable, without waiting, as prescribed in an action before a justice of the peace, or in a district court in the city of New York, the person to whom it is directed, or his landlord, or any person in possession, or claiming possession of the premises, or any part thereof, may file with the judge or justice, who issued the precept, or with the clerk of the court, a written answer, verified in like manner as verified answers in actions in the supreme court, denying generally the allegations, or specifically any material allegations, of the petition.”
It is insisted by the respondent that, although section 531 of the Code, which provides for furnishing a bill of particulars, in terms furnishes no other penalty for the refusal to serve a bill of particulars, where required, than that of depriving the party so refusing from giving evidence as to the subject upon which such bill of particulars is demanded, yet the court has inherent power to strike out the entire pleading as a punishment for such refusal. And we are referred to the case of Gross v. Clark, 87 N. Y. 272, in support of that contention. That was an ordinary action in the supreme court, and an order was made by the court requiring the plaintiff