Powers v. De O.

| N.Y. App. Div. | Oct 15, 1901

Hirschberg, J.:

On the hearing before the justice of the peace the defendant made defense upon .technical points" only, and the decision of the justice appears to be fully justified by the law and facts. The final order granted in favor of the petitioner as agent, awarding possession of the lands of his principal, then in the possession of the respondent as tenant, has been reversed in the County. Court. Mo •opinion was written on such reversal, and we aré accordingly unaware of the grounds of that court’s action. The points presented by the respondent appear untenable, and we are unable to discover any flaw in the proceedings tending to vitiate the order granted by the magistrate.

The main question urged is that the proceedings cannot be maintained in the name of the agent of the landlord. Section 2235 of the Code of Civil Procedure expressly authorizes the agent of the landlord to make the application for the removal of the tenant, and in Case v. Porterfield (54 A.D. 109" court="N.Y. App. Div." date_filed="1900-07-01" href="https://app.midpage.ai/document/case-v-porterfield-5188431?utm_source=webapp" opinion_id="5188431">54 App. Div. 109) we held that this authority included the light to entitle the proceedings and to issue the precept in the agent’s name. The logic of that decision requires us to hold also that the notice in this case was a sufficient compliance with the requirements of section 2231, although signed by the agent. (See, also, People ex rel. Grissler v. Stuyvesant, 1 Hun, 102, 107; Reeder v. Sayre, 70 N.Y. 180" court="NY" date_filed="1877-06-19" href="https://app.midpage.ai/document/reeder-v--sayre-3608813?utm_source=webapp" opinion_id="3608813">70 N. Y. 180, 188.) The evidence sufficiently establishes the actual agency of the petitioner, and & prima facie case was made out warranting the relief granted.

• It is claimed that the precept was void because dated more than five days before its return. It was returnable December fourteenth and dated December eighth ; but it was actually issued on December eleventh, the day on which the petition was verified, and the date was a clerical error. The language of the Code (§ 2238) is that “ the precept must be returnable not less than three nor more than five days after it is issued,” and the precept in question complied with that condition.

The other objections'urged do not require discussion.

The judgment should be reversed and the possession of the property should be awarded to the landlord in accordance with the justice’s order, with costs.

Goodrich, P. J., Woodward, Jenks and Sewell, JJ., concurred.

.■ Judgment of the County Court of Westchester county reversed and possession of the premises awarded to the appellant,, with costs.,.