Faruolo v. Zahga — 102 N.Y.S. 757

Majority

p. 757

FARUOLO v. ZAHGA.

(Supreme Court, Appellate Term.

February 11, 1907.)

Headnote

Landlord and Tenant—Recovery of Possession by Landlord—Summary Proceedings—Process—Service—Jurisdiction—Appeal.

On an appeal from a final order in a summary proceeding in the Municipal Court of New York, the defendant presented affidavits, which had been duly served, showing that no service of the precept was ever made on him, and no opposing affidavits were presented. Held, that the final order should be reversed.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Charles Faruolo against Guiseppe Zahga, proceeded against as Peppino_ Cinsomo. From an order of the Municipal Court in favor of plaintiff) defendant appeals. Reversed and dismissed.

Argued before GILDFRSLFEVF, MacLEAN, and AMEND, JJ.

Guiseppe L. Maggio, for appellant.

Defendant herein appeals from a final order in favor of the plaintiff landlord, and presents affidavits showing that no service of the precept was ever made on him. The appeal was taken under the provisions of section 311 of , the Municipal Court act (Laws 1902, p. 1578, c. 580), and the affidavits were duly served. Austen v. Columbia Lubricants Co. (Sup.) 85 N. Y. Supp. 362 . No oppos-, ing affidavits are presented, and those on the part of the defendant show that no jurisdiction was ever acquired by the court to make the final order in question.

Final order reversed, and petition dismissed, with costs. All concur.