Carmer v. Rhodes

Order affirmed, with $10 costs and disbursements.

(dissenting). I dissent. The plaintiff in this action was the defendant in the summary proceeding which he attacks. He appeared therein, filed an answer to the petition, contested the same, and was beaten. The real controversy betw.een the parties was whether the plaintiff’s term, which coneededly expired on the 1st day, of Blay, 1906, was extended for another year as claimed by the plaintiff, or whether he was holding over after the expiration of said term. The plaintiff contended that a new lease was executed by the agent of the owners, and proffered to him, which he did not execute. He claims, however, that the agent stated to him that if he remained in possession he would be deemed to have ratified the lease, and that he did remain in possession and elected to ratify the same. That issue was tried and determined in the summary proceeding adversely to the plaintiff, and thereupon the order was made and the warrant to dispossess the plaiptiff was issued, the enforcement of which he now seeks to enjoin. If, in any view of the case, as disclosed by the complaint and the papers in this record, the plaintiff is entitled to such relief, manifestly the injunction order should be retained until the trial and determination of the issues in this action; but I fail to see how he can possibly succeed. Every question involving the merits could have been, and was actually, tried in the summary proceedings. Whatever redress the plaintiff has by way of reviewing .the adjudication in the summary proceeding is limited to the appeal which he has taken to the County Oourt, and which, so far as the record shows, still remains undetermined. I do not think this action can be maintained. Knox v. McDonald, 25 Hun. 268 ; Jessurun v. Mackie, 24 Hun. 624 ; Baptist Mission Society v. Potter, 20 Misc. Rep. 191 , 44 N. Y. Supp. 1051 . The contention is also made by the plaintiff that the description contained in the petition is insufficient. The petition is not contained in the record. The complaint itself describes the premises with sufficient definiteness and certainty, and alleges that a warrant was issued directing the constable to remove the tenant therefrom. While it is stated in the complaint that the plaintiff objected upon the ground .that the justice did not have jurisdiction, for the reason that the petition did not properly describe the premises, it fails, to show that the description was actually deficient, and beyond that the summary proceeding was tried on the merits. I think the