Phelps v. Mallory — 72 Misc. 74

Majority

p. 74

Charles D. Phelps, Appellant, v. Edward F. Mallory, Respondent.

(Supreme Court, Appellate Term,

May, 1911.)

Headnote

Municipal Courts — Jurisdiction — Municipal Court — Actions involving title to real property.

In an action for rent brought in the Municipal Court of the city of New York, an answer, setting up that' a person other than plaintiff was the owner of the leased premises and that prior to the time the alleged rent became due defendant had been evicted from the premises by said owner who had a title thereto paramount to that of the plaintiff, does not put in issue the title to the property within the meaning of section 179 of the Municipal Court Act.

Appeal "by the plaintiff from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, first district, discontinuing the action.

Edward H. Lockwood, for appellant.

Warren A. Schenck, for respondent.

The plaintiff sued for the rent of certain premises which he averred in the complaint he had leased to defendant. ■ The defendant answered by claiming that a person other than the plaintiff was the owner of the demised premises and that the defendant had, prior to the time the alleged rent became due, been evicted from said premises by said owner who had a title to the premises paramount to that of the plaintiff.

The defendant, claiming that ‘by his answer he had put in issue the title to land within the provisions of section 179 of the Municipal Court Act, filed a bond under the provisions of section 180 of said act and procured a judgment discontinuing the action.

The pleading did not put in issue the title to real property in the sense contemplated by section 179, supra. The alleged owner is not a party to this action, and a judgment

p. 75

herein in favor of either party can in no way affect the rights of such alleged owner. Heiferman v. Scholder, 134 App. Div. 579 ; Trevett v. Barnes, 110 N. Y. 500 .

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Present: Seabury, Guy and Bijur, JJ.

Judgment reversed and new trial ordered.

Cases cited

Trevett v. Barnes 110 N. Y. 500 N.Y. 1888-10-02 p. 75