905 West End Avenue Corp. v. Peers — 118 Misc. 754

Majority

p. 754

905 West End Avenue Corporation, Landlord, Respondent, v. Henry E. Peers, Tenant, Appellant.

Supreme Court, Appellate Term, First Department, March Term —

Filed June, 1922.

Headnote

Practice — rule 113, Rules of Civil Practice, inapplicable to a summary proceeding — when judgment on the pleadings unauthorized.

An order granting a summary judgment under rule 113 of the Rules of Civil Practice in a summary proceeding will be reversed as unauthorized.

Where in a summary proceeding besides the statutory defense there is a denial that the landlord personally demanded the rent, the granting of a motion for summary judgment even if considered as one for judgment on the pleadings is unauthorized, and the order entered thereon will be reversed and the motion to strike out the answer will be denied.

Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in summary

p. 755

proceedings, granting landlord’s motion to strike out the affirmative defense contained in tenant’s answer as insufficient in law, and from a summary judgment granting a final order.

L. E. Schlechter, for appellant.

Ernst, Fox & Cane, for respondent.

The motion was made for judgment on the pleadings, under rule 113 of the Rules of Civil Practice referring to “ An action to recover a debt or liquidated demand arising, 1. on a contract, express or implied, sealed or not sealed; or 2. on a judgment for a stated sum.” We are of the opinion that the rule is inapplicable to a summary proceeding. Moreover, if considered as a motion for judgment on the pleadings, the granting of the motion was unauthorized, because an issue was raised not only by statutory defense but also by the denial of personal demand of the rent by the landlord.

Final order reversed, with ten dollars costs to appellant, motion to strike out answer denied, with ten dollars costs, and case placed upon the general calendar.

All concur.

Order reversed.