116 N.Y.S. 691 | N.Y. App. Div. | 1909
Lead Opinion
The tenant did not appeal from the final order of the Justice, but only one of. the three undertenants, William L. Kitchell. The reversal of the said final order was erroneous. The Justice properly denied the motion of the said undertenant to dismiss the petition for not alleging facts sufficient. The petition was not required. to
The order .of reversal should be reversed, and the final order affirmed.
Jenks and Bubk, . JJ., concurred; Woodward, J., read for affirmance, with whom High, J., concurred.
Dissenting Opinion
This special proceeding was instituted against Lauretta H. Kitchell, tenant, and William L. Kitchell, George W. Kitchell and G. 0. Kitchell Optical Company (Inc.), undertenants, for the nonpayment of rent, and was tried before Charles F. Gittens, justice of the peace, at Hempstead, resulting in a judgment in favor of the landlord, not alone against the tenant, hut against the under-tenants, for removal and eight dollars and eighty cents costs. From this judgment William L. Kitchell, undertenant, appealed to the County Court, where the judgment was reversed, and from the judgment and order of the County Court the landlord appeals to this court. I am of the . opinion that the petition was defective, and failed to give jurisdiction of the undertenants, because it does not show under whom William L. Kitchell or George C. Kitchell Optical Company (Incorporated)' held as undertenants, or who is their landlord, and “ because it does not allege that William L. Kitchell (among others) holds over without the consent of the said Albert F. Mando,” the landlord. These questions were raised by a motion to dismiss the petition before the justice, which motion was denied, and it is now urged by the landlord that the respondent and other undertenants were not necessary parties, as they had no legal right upon the premises. Assuming, without deciding, that this is true, yet he did make them parties, and the judgment of the Justice’s Court is against them for removal and for costs. He cannot be permitted to say that they were not • proper parties, when he has elected to bring them in, and still hold on to a judgment of removal, with costs, against them. The judgment is, therefore, properly reversed.
The: judgment and order appealed from should be affirmed* with costs.
Rich, J., concurred.
Order of the County Court of Uassau county reversed, with ten dollars costs and disbursements, and final order of the Justice’s Court affirmed, with costs.