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Mann v. Hefter

125 N.Y.S. 1104 Court N.Y. App. Term Decision date 1910-12-08 English

Delivered by GAVEGAN, J.

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p. 1104
MANN v. HEFTER.
(Supreme Court, Appellate Term.
December 8, 1910.)

Headnote

Landlord and Tenant (§ 308*)—Summary Proceedings.
Without some evidence in support of the allegations of the petition, in summary proceedings by a landlord, each of which is put in issue by the tenant’s answer, it is error to give judgment for the landlord..
’[Ed. Note.—For other eases, see Landlord and Tenant, Cent. Dig. §§ 131L-1316; Dec. Dig. § 308.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Summary proceedings by Alexander Mann, landlord, against Ike Hefter, tenant. From a judgment and final order awarding possession to the landlord, the tenant appeals. Reversed, and new trial ordered.
Argued before GUY, PLATZEK, and GAVEGAN, JJ.
Frank M. Franklin, for appellant.
Charles Franlcel, for respondent.

This proceeding was commenced by filing a verified petition setting forth the usual allegations of ownership of the property, making of the lease, and default in payment of rent. The tenant filed a verified answer to the petition setting up a general denial and three separate and distinct defenses. Upon the trial day the tenant made an application for an adjournment which was denied, and the trial judge thereupon, without hearing any testimony, gave judgment for the landlord. The court had no power to give judgment without some evidence in support of the allegations in the petition each and every allegation of which was put in issue by the tenant’s answer, and the final order should therefore be reversed. Philip Realty & Construction Co. v. Chubin, 135 App. Div. 766 , 119 N. Y. Supp. 924 ; Fox v. Held, 24 Misc. Rep. 184 , 52 N. Y. Supp. 724 ; Brill v. Norkett (Sup.) 84 N. Y. Supp. 142 .

Final order'reversed and a new trial ordered, with costs to appellant to abide the event. All concur.

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