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Bowen v. Ludvik

119 A.D. 11 Court Second Department, Decision date 1907-04-19 English

Delivered by *12 Woodward, J.:

Contents

Majority

p. 11
Emma C. Bowen, Appellant, v. Pauline Ludvik and Charles Ludvik, Respondents.
Second Department,
April 19, 1907.

Headnote

Summary proceedings—when Municipal Court of city of New York has no jurisdiction.
When in summary proceedings to remove squatters from land, brought in the • Municipal Court of the city of New York, it appears that the question of title to the property is in issue, the court has no jurisdiction and should dismiss the .proceeding.
Appeal by the plaintiff, Emma 0. Bowen, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, dismissing summary proceedings • ■ instituted to recover the possession of real property.
James Z. Pearsall, for the appellant.
Julius Levy, for the respondents.

Summary proceedings were brought by the petitioner, .under section 2232 of the Code of Civil ^Procedure, to recover from alleged squatters- the possession of certain land in the borough of Brooklyn. In their answer the defendants set forth facts showing that the title to the property would come in question, and if the proper practice had been followed thereupon, pursuant to sections 179-182 of the Municipal Court Act (Laws of 1902, chap. 580), there would have been a discontinuance of. the proceedings and a new action could ' have been brought to determine the title in the Supreme Court. The defendants, however, did not deliver to the court with the answer a written- undertaking, as provided by section 180, nor did the court countersign the answer, as required by. section 179, but the petitioner proceeded to trial and did not take advantage of the ■ defendants’ failure to furnish the undertaking. At the close of the evidence, the court dismissed the proceedings, with permission to the petitioner to institute new proceedings. As the Municipal Court has no jurisdiction to determine a disputed question of title and as the most that. the. petitioner could properly obtain in that court would be a discontinuance, the judgment should be affirmed,'without costs. -'

- Jenics, Gaynor and Bich, JJ., concurred.

Judgment of the Municipal Court affirmed, without costs.