24 Misc. 184 | N.Y. App. Term. | 1898
This is an appeal by the tenant Katie Held from a final order in summary proceedings in favor of the alleged landlord, Isaac Fox. On the return of the precept the tenant appeared by counsel, and moved to dismiss the landlord’s petition, on the ground that the same was insufficient in law, in that Isaac Fox alleged therein that he was the “lessee or landlord” of the premises No. 75 Eldridge street, in this city, being the premises in question. This motion was denied, and exception taken. Thereupon counsel on behalf of the tenant Katie Held interposed an answer. The only witness examined was the alleged landlord, Isaac Fox, who, under the objection of tenant’s counsel, testified that he was the owner and landlord of the premises 75 Eldridge street, in this city. Aaron Weiss, also a tenant, was included in the proceedings, and his rights were adjudicated upon the same pleadings and facts as maintained in the case of Katie Held. The final orders in the two cases are identical. After the reception of the testimony above mentioned of the petitioner, the petitioner’s counsel made the following motion, viz.: “I move for judgment on the pleadings, on the admission of the defendants’ counsel that this man is the landlord. The Court: The motion for judgment on the pleadings in both of these cases is granted. I am of the opinion that this answer is no answer at all in these proceedings. (Exception by tenant’s counsel.)” " The appeal raises two questions: First, the alleged insufficiency of the description of the petitioner’s interest in the premises; and, second, the alleged error of the court in the ruling upon the effect of the tenant’s answer. We will first consider the latter assignment of error.
The answer denies each and every allegation in the landlord’s petition contained, except the alleged possession and occupancy of the premises by the tenant. As a special defense, the answer then alleges that Isaac Fox was the owner of the premises, but was not entitled to the possession of the premises or to the rents, but that one Mendelsohn was the lessee to whom the rent had been duly paid; and that, Mendelsohn not having been made a party to the proceedings, the court had no jurisdiction to make final orders upon the facts presented by the pleadings. We think it was error to hold that the answer in the proceedings did not put the petitioner to his proof as to any of the allegations set forth in his petition. It cannot be said that the
On account of the error of the court in holding that the answer raised no issues calling for proof on the part of the petitioner, the final order should be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.