Kazis v. Loft

Headnote

1. Landlord and Tenant — Summary Proceedings — Jurisdiction.

Where in summary proceedings the landlord merely alleged that he was the “landlord” oí the premises occupied by the tenant, and did not describe his interest therein, as required by Code, § 2235, the court acquired no jurisdiction to issue a warrant of removal.

2. -Same — Warrant of Removal — Injunction.

Under Code Civ. Proc. § 2265, providing that summary proceedings may be stayed by injunction granted in an action, etc., an injunction was properly granted to restrain the execution of a removal warrant granted in an action in which the justice acquired no jurisdiction by reason of a defect in the pleadings, where plaintiff showed that his term had not expired and that irreparable damage would accrue to him if the warrant was not stayed.

Appeal from Special Term, New York County.

Suit by Demetrius Kazis against George W. Loft to restrain defendant from executing a warrant of removal in summary proceedings to dispossess plaintiff as a tenant. From an order continuing injunction pendente lite, defendant appeals. Affirmed.

The plaintiff was a tenant of the defendant, and, after a trial, a final order in summary proceedings was granted directing his removal, and a warrant was issued. He appealed from the order, but, as there was no power in the trial court to stay the execution of the warrant, he also applied for an injunction. He alleged that his term had not ended, and that the summary proceedings taken against him by the defendant were void because the justice presiding in the municipal court had not acquired jurisdiction. It appeared that the defendant, in. his petition in the proceedings in the municipal court, had merely alleged that he was the “landlord” of the premises occupied by the plaintiff, and did not describe his interest in the premises, stating the facts as required by section 2235 of the Code.

The following is the opinion of the Special Term:

' “LEVENTRITT, J. The plaintiff should have an injunction under section 2265 of the Code. The papers show that the justice, under the circumstances disclosed, went beyond his jurisdiction in taking cognizance of the

proceeding, owing to fatal jurisdictional defects. Kiernan v. Reming, 7 Civ. Proc. R. 312; Schneider v. Leizman, 57 Hun, 561 , 11 N. Y. Supp. 434 ; Broadwell v. Holcombe, 4 Civ. Proc. R. 159. The plaintiff shows that irreparable damage would accrue to him, and there is some indication that the entire proceedings have been oppressive. Motion to continue injunction granted, with $10 costs to plaintiff to abide the event.”