133 N.Y.S. 959 | N.Y. App. Div. | 1912
The lease under which the proceedings to dispossess the tenant were instituted was made on the 1st day of March, 1906, between the plaintiff and one James T. Haverty, since deceased,
We are of opinion that the court was without jurisdiction to make the order, for the uncontroverted evidence shows that the tenant was not in possession at the time the proceeding was instituted, and was not holding over or claiming any rights as a tenant of the premises. It is essential to the jurisdiction of the court to entertain a summary proceeding and to make a final order therein that the tenant should be in possession. (Code Civ. Proc. § 2231; Brown v. Mayor, 66 N. Y. 385; Ash v. Purnell, 32 N. Y. St. Repr. 306; Gallagher v. Reilly, 31 id. 556; Boehm v. Rich, 13 Daly, 62.) The adjudication would be conclusive against the tenant that she held over and remained in possession in the action by the landlord for the rent (Prince v. Schlesinger, 116 App. Div. 502; Grafton v. Brigham, 70 Hun, 134), and that appears to be the only object of the proceeding. A marshal or other officer of the court could give plaintiff nothing under the final order for the premises were wholly
It follows that the determination of the Appellate Term should be reversed, with costs to the appellant, and the final order should be reversed and the proceeding dismissed, with costs to appellant.
Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.
Determination reversed, with costs, and final order reversed and proceeding dismissed, with costs to appellant. .