Eldaen Realty & Construction Co. v. Bensamon

Majority

p. 463

The Eldaen Realty and Construction Company, Respondent, v. Max E. G. Bensamon, Tenant, and “ Max ” Spenadel, Under-tenant-Appellant.

(Supreme Court, Appellate Term,

November, 1907.)

Headnote

Summary proceedings — Sufficiency of affidavit or petition — Waiver of objections.

Where, in summary proceedings to remove a tenant and under-tenant holding over after the expiration of the term, the landlord’s petition states no fact upon which his right to possession could be based, the court acquires no jurisdiction.

Where the petition in such case sets forth that the petitioner is a lessee of the premises in question under a lease from the owner executed July 30, 1907, but also contains the further statement that said owner did not acquire title to the premises until August 3, 1907, it will not be assumed that the delivery of petitioner’s lease was subsequent to the time that the owner of the premises was empowered to contract with reference thereto; such petition is, therefore, defective under section 2235 of the Code of Civil Procedure which requires that the petition shall state the “ interest ” of the petitioner in the demised premises.

An objection to a jurisdictional defect in a petition in summary proceedings is not waived by an answer.

Appeal by the under-tenant from a final order entered in favor of the landlord in the Municipal Court of the city, of ¡New York, sixth district, borough of Manhattan.

Benjamin Reass, for appellant.

Morris S. Hirschberg, for respondent.

The under-tenant appeals from a final order in dispossess proceedings in favor of the landlord. The petition sets forth in substance that the petitioner, a domestic corporation, “ is a lessee ” of certain premises under and by virtue of a certain indenture of lease, made and executed by one Maria L. Fahys, thé present owner thereof, dated July 30, 1907; that the “ 35—39 West 33rd Street Company,” a domestic corporation, on January 11, 1907, entered into a written agreement of lease with Max E. G. Bensamon, wherein that company as landlord leased the premises to Bensamon, as tenant, the lease to run for two years from January 15, 1907; that at that time the “ 35-39 West 33rd Street Company ” was the owner of the premises “ and on the 3rd day of August, 1907, duly conveyed said premises to Maria L. Fahys;-” that the tenant Bensamon and the under-tenant Spenadel still occupy the premises, and hold over, after the expiration of their term, without the consent of the petitioner. The assertion that the tenant and under-tenant hold over after the termination of the lease is based -upon the allegation that the lease from the 35-39 West Thirty-third Street Company to Bensamon contained a clause authorizing the landlord to terminate upon giving sixty days’ notice, and that such notice had been duly given, The tenant did not appear in the proceedings, but the under-tenant did, and filed an answer which the court below held to be insufficient in law, and a final order was granted to the petitioner. The under-tenant contends that the court below did not acquire jurisdiction, for the reason that the petition upon which the final order was founded failed to comply with section 2235, Code of Civil Procedure, which requires that the petition shall state the “ interest ” of the petitioner in the demised premises. We find support for that contention. Although the petition states that the petitioner is a lessee of the premises under a lease executed by Maria L. Fahys and dated July 30, 1907, it also contains the further statement that Maria L. Fahys did not acquire title to the premises until August 3, 1907. In the absence of any fact showing the date when the lease was delivered, we cannot assume its delivery subsequent to the time when Maria L. Fahys was em

p. 465

powered to contract with reference to the premises. There is no fact stated in the petition upon which the petitioner’s right to possession couid be based. Therefore the right of the petitioner to maintain the proceedings does not appear, and the court below acquired no jurisdiction. The contention that the objection to the sufficiency of the petition has been waived by answering in the court below is unfounded. The defect is jurisdictional and may be raised at any time. Bevins & Rogers, App. Term Pr. 74.

The order appealed from must be reversed and the proceeding dismissed.

Gildersleeve and Leventritt, JJ., concur.

Order reversed and proceeding dismissed.