Hedden v. Nederburg — 58 N.Y.S. 1065

Majority

p. 1065

HEDDEN v. NEDERBURG.

(Supreme Court, Appellate Term.

June 28, 1899.)

Headnote

Appeal—Trivial Objections.

Under Code Civ. Proc. § 3063, providing that the court must render judgment according to the justice of the case, without regard to technical defects, not affecting the merits, where appellant, on the trial, interposed no defense, and on appeal urges only technical objections to the admission of the testimony, they will be disregarded.

Appeal from municipal court, borough of Manhattan, Eighth district.

Proceeding for the summary removal of a tenant by Thomas B. Hedden against Samuel Hederburg. From a final order for his removal, defendant appeals.

Affirmed.

Argued before FBEEDMAH, P. J., and MacLEAH and LEVEH-TRITT, JJ.

Joseph Wilkenfeld, for appellant.

Julius Henry Cohen, for respondent.

On a previous appeal to this court, the final order obtained by the landlord was reversed because of failure to prove service on the tenant, whose term was from month to month, of the statutory five days’ notice. Hedden v. Nederburg, 55 N. Y. Supp. 613 . On the retrial the omission was supplied, but- the tenant now appeals, urging a series of technical objections, which, even were they not trivial and frivolous, we should disregard, in the interest of substantial justice. Code Civ. Proc. § 3063. Ho defense was interposed, the tenant’s efforts being solely directed against the admission of proper testimony. All the jurisdictional facts were both alleged and proven. There was no good reason for this appeal. The order will be affirmed.

Order affirmed, with costs to the respondent. All concur.