p. 137Gilbert Cronk, App’lt, v. Charles M. Barlow, Resp’t.(Supreme Court, General Term, Third Department,Headnote
Landlord and tenant—Summary proceedings for ejectment—What NOT SUFFICIENT PROOF OF RELATION OF LANDLORD AND TENANT.In summary proceedings for ejectment it was shown that the defendant went into possession as tenant under the mother of plaintiff, since deceased. The plaintiff simply swore that lie was the owner of the property. On cross-examination, he stated that he had a conveyance in writing, hut did not produce it. Held, that he should have proved the descent or devise of the land and the conveyance thereof from heirs or devisees.
This is an appeal from a judgment of the county court of Albany county reversing a judgment or final order made by a justice of the peace of the town of Coeymans to remove a tenant, Charles M. Barlow, from premises in the town of Coeymans. Plaintiff, who was the son of Sarah Cronk, served the usual notice on Barlow to deliver up possession. ' And in his petition alleged that he was the owner of the premises in question, and had been since December 1, 1883, “at which time last mentioned Hr. C. H. Barlow was in possession of and occupied one room * * * as defendant is informed and believes, as a tenant from month to month, at a monthly rent of $2.50 per month.” Barlow, in his answer, denied any knowledge of the matters alleged in plaintiff’s petition, and alleged that he had occupied the room as a law office, but never from month to month, and that on or about the 24th day of October, 1879, he “hired the room of one Sarah Cronk, and that she let and rented to him the said law office for the term of five years and one month, etc.,” which period had not expired. The testimony in regard to the giving of the lease to Barlow by Sarah Cronk was very conflicting. Plaintiff testified (under objection): “I was the owner of two-eighths; I now own the whole of it;” and, further: “I have the conveyance of these premises in writing.” Sarah Cronk died prior to the commencement of the ejectment proceedings.'
Jacob JÉ. Oluie, for app’lt; O. M. Barlow, in person.
The learned county judge has not stated the reasons for which he reversed the judgment of the
p. 138justice of the peace. But several reasons for that conclusion might be given.
It is doubtful whether the petition sufficiently shows the relationship of landlord and tenant. At any rate, the proof fails in that respect. The defendant evidently went into possession as tenant under Sarah Cronk, since deceased, the mother of plaintiff. It is not properly shown that he succeeded to her title. He simply swears that he is owner; that he was the owner of two-eighths and is the owner of the whole. On cross-examination he stated that he had a conveyance in writing; and yet on defendant’s motion the justice refused to strike out the testimony as to ownership, on the ground that there was higher evidence. He should have proved the descent or devise of the land and the conveyance thereof from heirs or devisees.
Again, the proof offered of service of notice to quit was altogether imperfect. The person who served the paper did not know what it was, nor did he testify when it was served.
The parties appeared on the return day, July 12, and on plaintiff’s motion the justice adjourned to-July 23—more than ten days. Code, § 2248. On this adjourned day the defendant moved to dismiss the proceedings on the ground, among other things, that the justice had lost jurisdiction.
Judgment of county court affirmed, with costs.
Bockes and Landón, JJ., concur.