191 A.D. 412 | N.Y. App. Div. | 1920
This is a suit in equity to enjoin the execution of a final order in a summary proceeding instituted by the defendant against plaintiffs for the possession of premises owned by defendant in the county of Bronx, known as Nos. 965-1005 Prospect avenue. The complaint shows that the defendant is a domestic corporation and that on the 22d of November, 1919, defendant claiming to be the owner in fee of the premises caused a notice to be served on plaintiffs, who then occupied and still occupy different parts of the premises, requiring them to remove on or before the 1st of January, 1920, and giving notice that on then failure so to do it would institute proceedings to oust them on the ground that they were holding over; that they remained in possession and are still in possession of the premises and that the defendant thereafter instituted proceedings in the Municipal Court, Bronx County, First District, for their removal on the ground that they were in possession holding over after the expiration of their term without the consent of the landlord owing to the fact that the lease from the Zarland Realty Company, -under which they claimed, had been canceled and surrendered; that the plaintiffs appeared by attorney and joined issue in the summary proceedings on the 9th of January, 1920, and that the final order was granted therein on the twenty-ninth of that month, but the issuance of the warrant was stayed for five days; that the petition in the summary proceedings was insufficient in law in that it failed to show the relation existing between defendant and the plaintiffs and failed to establish the relationship between them of landlord and tenant, and that by reason thereof the court failed to acquire jurisdiction and consequently was without power or jurisdiction
The Legislature, by section 2265 of the Code of Civil Procedure, has provided that the proceedings before the final order and the issuing or execution of the warrant upon such a final order “ cannot be stayed or suspended by any court or judge, except in one of ” two methods therein
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., Dowling and Merrell, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.