Ross v. New York City Baptist Mission Society

Majority

p. 683

Julia Ross, Respondent, v. The New York City Baptist Mission Society et al., Appellants.

(Supreme Court, Appellate Term,

June, 1898.)

Headnote

Summary proceedings — Forcible detainer — Petition — Jurisdiction.

An allegation contained in the petition of a person seeking to regain possession of premises from which, as she alleges, she has been forcibly dispossessed, that she is “ a lessee of the premises * * * under an agreement made between her and the trustees of the said Tabernacle -Baptist Church, by the terms of which your petitioner duly leased from the said Tabernacle Baptist Church, the aforesaid premises, and by virtue of such agreement became entitled to and went into possession of said premises,” is not a compliance with the provisions of section 2235 of the Code of Civil Procedure, which require such an applicant to present to the justice “ a written petition * * * describing the premises * * * and the interest therein of the petitioner ”.

A District Court of the city of New York acquires no jurisdiction of the subject-matter under such a petition and the defeat is neither waived nor cured by the fact that the defendants plead to the merits before they objected to the jurisdiction of the court.

Appeal by the defendants from a final order in summary proceedings awarding the delivery of the possession of certain premises

p. 684

to the petitioner,- made 'by the justice of the District -Court in the city of New York, for the fourth judicial district, upon a trial had without a -jury.

These proceedings were instituted to regain the possession of the premises known.as No. 162 Second avenue in'the city of New York, and .also known as the Ghurch House of the’ Tabernacle Baptist Ohurch, claimed to have been forcibly entered- upon by the defendants, and who, it is-further claimed, forcibly held the same.

The other material facte áre stated in the opinion.

John E. Parsons, for appellants.

Benjamin Scharps, for respondent.

In view of the conclusion reached in Potter v. New York City Baptist - Mission Society,- ante p. 6Í1, it is manifest .that the allegations of. the petition herein touching the interest of the applicant ¡in the premises were wholly insufficient to confer jurisdiction of the subject-matter.'

The averment contained in the petition that the applicant is “ a lessee of the premises * ■ * * under an agreement made between her and the trustees 'of the said Tabernacle Baptist Ohurch by the (terms of which agreement your petitioner duly leased from the said Tabernacle Baptist Church the aforesaid premises, and by virtue Of such agreement became tentitied to and,went into the possession tof said" premises ” is not a compliance with the provisions of section 2235 of the Code of Civil Procedure which require the applicant to present to the justice “ a written petition * * * - describing the premises * * * and the interest therein of the petitioner.”

As was said by Pryor, J., in Fuchs v. Cohen, 19 N. Y. Supp. 236 , “whether the applicant was tenant for years or from year to year, or from month to month, or at will, or at sufferance, is not indicated by the petition; wherein, therefore, ‘is not a description of ¡the interest of the petitioner, but, at most, an allegation that she had some interest which entitled h'er to the possession.’ Schneider v. Leitznian, 11 N. Y. Supp. 434 . An allegation is not equivalent to a description of the interest.”

The respondent insists that notwithstanding such defect, thie .court b'elow acquired jurisdiction by reason of' the general appearance nf the defendants, and their pleading to the. merits, before raising

p. 685

the objection to the jurisdiction of the court. Had the court below acquired jurisdiction of the subject-matter, there might be some force to this contention, but, as it had not, the objection was not waived, and the defendants were not precluded from raising it. Potter v. N. Y. City Baptist Mission Society, supra.

For these reasons the final order should be reversed, with costs to the appellants. "

Beekman, P. J., and Gildersleeve, J., concur.

Final order reversed, with costs to -appellants.