Underhill v. Cohen

114 N.Y.S. 115 | N.Y. App. Term. | 1909

Per Curiam.

The proceedings herein were made returnable in the court below on the 7th day of July, 1908, and a final order was made herein on default of the tenant. On the 8th day of July, 1908, an order to show cause was granted herein, returnable on the 14th day of July, 1908, why an order should not be made vacating and setting aside the final order aforesaid, upon the ground that the court had no jurisdiction, and, in case of the denial of the said relief, why an order should not be made vacating the said final order, in order to permit the tenant to come in and defend the proceeding on the merits. The motion was denied, with five dollars costs, and an order was entered thereon. An appeal was taken from said order, and on the 14th day of October, 1908, an amended order denying said motion was entered, and the appeal from the original order was withdrawn by consent, and this appeal is taken from said amended order. The tenant claims that the court did not acquire jurisdiction of the proceedings by reason of defects in the petition. The petition recites as follows: “ The petition of George S. Underhill, of the said City, respectfully shows: That he is the sole surviving executor and trustee under the last will and testament - of Ann L'. Underhill, deceased, and the landlord in respect to the premises hereinafter described, succeeding as such executor, trustee and landlord, William H. Underhill, deceased, and that said William H. Underhill, as such executor, trustee and landlord of the premises hereinafter mentioned, on or about the 21st day of March, A, D. 1906, entered into an agreement in writing with Max Cohen,” etc. A proper description of the petitioner’s interest is an essential part of the petition in order to confer jurisdiction (Code Civ. Pro., § 2235; Cram v. Dietrich, 38 Misc. Rep. 790; Engel-Heller & Co. v. Henry Elias Brg. Co., 37 id. 480; Ferber v. Apfel, 113 App. Div. 720); and an objection to the jurisdiction of the subject-matter may be raised at any time, and even for the first time on appeal. Cram v. Dietrich, supraj Potter v. Baptist Society, 23 Misc. Rep. 671. The mere words “ and the landlord of the premises hereinafter described” are insufficient to confer jurisdiction of the proceeding (Kazis v. Loft, 80 N. Y. Supp. 1015; Loft v. Kazis, 84 id. 228; Cohen v. Brossevitch, 33 Misc. Rep. 600; Engel, Heller & Co. v. Henry Elias Brg. Co., supra), for that is not a statement that the petitioner is the owner of the premises, so far as the term “ landlord ” may be taken as synonymous with “owner;” (2 Bouv. Law Dict. [Hawley’s Rev.] 115), but is a mere allegation of the relation of the parties, without setting forth actually or by inference a description of the petitioner’s interest in the premises involved in the proceeding. Fuchs v. Cohen, 19 N. Y. Supp. 236; Potter a Baptist Society, supra; Ross v. Baptist Society, 23 Misc. Rep. 683; Engel-Heller & Co. v. Henry Elias Brg. Co., supra. It is the assertion merely of an interest, but not a description of such interest. The courts have frequently held that a petition is fatally defective and insufficient to confer jurisdiction which merely sets up the petitioner’s interest as being that of landlord. Ferber v. Apfel, supra. In the case at bar, the petition recites, as we have seen, that the petitioner is the sole surviving executor and trustee of Ann L. Underhill, deceased, and landlord of the premises, “ succeeding as such executor, trustee and landlord, William H. Underhill, deceased,” who is stated to have made the agreement of lease with defendant. Under section 2235 of the Code, authorizing proceedings by a landlord to recover possession of demised premises, and requiring the petition to describe petitioner’s interest, a petition, alleging that the petitioner made an agreement with the adverse party, whereby he let and such party hired the premises for a specified rental, sufficiently describes the petitioner’s interest as that of landlord, since one who has entered into possession of premises, under an agreement to pay rent therefor, is es-topped to dispute his lessor’s title, and a statement of the derivation of the petitioner’s title or right to make the lease is not requisite to the court’s jurisdiction; for the statutory requirement of such description means merely that the petition must present a case within the section, showing that petitioner’s interest is that of landlord or lessor. Slater v. Waterson Amusement Co., 58 Misc. Rep. 215. If, therefore, the petition had been made by the late William H. Underhill in his lifetitne, instead of the present petitioner, the description of the petitioner’s interest would have been clearly sufficient. The petition further states, as we have seen, that William H. Underhill made the agreement of lease with defendant in his capacity of such executor and trustee of said Ann L. Underhill, deceased, and the petitioner, therefore, shows that he holds exactly the same relation to the defendant that was held by William H. Underhill, whose title defendant is estopped to dispute, So far, therefore, as the motion to dismiss the proceedings for lack of jurisdiction is concerned, the final order must he affirmed.

We think, however, that the motion to open defendant’s default and permit him to defend on the merits should have been granted on terms.

As to this motion the final order is reversed, and the default opened, on payment by defendant to petitioner of all costs to date.

Present: Gildersleeve, Bischoff and Guy, JJ.

Order reversed.