Paul B. Pough & Co. v. Cerimedo

44 Misc. 246 | N.Y. App. Term. | 1904

Scott, J.

Section 2942 of the Code of Civil Procedure applies primarily to justices’ courts. Its application to the former district courts of the city of Hew York and the present Municipal Court depended entirely upon the operation and effect of section 1347 of the Consolidation Act (Laws of 1882, chap. 410). This last section was expressly repealed by section 364 of the Municipal Court Act (Laws of 1902, chap. 580). It follows that the power of the Municipal Court to direct the service of bills of particulars is no longer governed by section 2942 of the Code, but by section 145 of the Municipal Court Act, which, unlike section 2942 of the Code, does- not limit the time for making an order for a bill of particulars to the time of joining issue. The time afforded by the justice was rather short but no objection was made by defendants on that score. The allegations of the answer do not correspond with the terms of the written lease. The plaintiff did not agree to “ give entire possession and control of the premises fully completed on the 15th day of October, 1903, if possible, but not later than the 2nd of November.” All that plaintiff agreed to was to give possession of the premises on the dates specified, but the lease is entirely silent as to how far they should then be completed. The term demised by the lease was not to begin until January fifteenth, and the only obligation as to preparedness assumed by plaintiff was the implied one that the premises should then be completed and ready for occupancy.

The appeal appears to be without merit and the judgment must be affirmed, with costs.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs.