Ward v. Burgher — 70 N.Y. St. Rep. 635

Majority

p. 635

John Q. A. Ward, Resp’t, v. Homer Burgher, App’lt.

(Supreme Court, General Term, Third Department,

Filed December 3, 1895.)

Headnote

1. Summary proceedings—Petition.

The petition was held, in this case, in the absence of an objection to its sufficiency, sufficient to give the justice jurisdiction.

3. Same—Evidence.

The evidence was held sufficient to show that the defendant was an undertenant of the lessee.

Appeal from a final order in favor of plaintiff.

jB. G. Ghetwood, for app’lt; M. H. Gouch, for resp’t.

I think the petition was sufficient to confer juris-diction upon the justice to issue a precept. It set forth that the plaintiff was the owner of the premises described therein, that on or about September 3, 1893, they were rented to the Peckamose Fishing Club for one year from that date, and that defendant was in possession, as an undertenant of such club, and held over after the expiration of the term, without the permission of plaintiff. The defendant, in his answer, alleged that he was in possession of said premises under a valid and subsisting lease, which had not expired. On the trial no objection was made by him to the suffiency of the petition, and he made no motion for the dismissal of the proceedings when the plaintiff rested. The issues formed by the petition and answer were submitted to the jury without objection. The plaintiff testified that he rented the premises to the Peckamose Fishing Club, to be occupied by defendant, who was in the employ of the club, for one year from September 3, 1893, .and that the lease was not extended. The defendant was sworn as a witness, and did not deny this statement of plaintiff. The letters introduced by defendant did not conclusively show an extension of the lease. It did not appear from the one dated June 14, 1894, for what time the $50 .check therein inclosed was a payment, whether for a period before or after the letter. It would appear, however, from the subsequent letter, dated July 13, 1894, inclosing a check for $16.66, and the receipt of July 18, 1894, for

p. 636

salary for the month of June, 1894, that the $50 check of June-14th was for salary previous to June 14, 1894. We conclude, therefore, that the petition was sufficient to confer jurisdiction on the justice. "Under the provisions section 2231, Civ. Code, summary proceedings may be instituted against an undertenant, and the evidence was sufficient to show that defendant was in occupancy of the premises as an undertenant of the lessee. The testimony on the trial presented a question .of fact, which was properly submitted to the jury, the defendant making no objection to such submission. The plaintiff testified positively to a lease for one year, which expired on September 3, 1894, and that such lease had not been renewed, and, if the letters and receipt read by defendant had some tendency to contradict this evidence, such letters and receipt were not so conclusive as to authorize the justice to withdraw the case from the jury, especially as the defendant, when sworn as a witness, did not controvert the statement of the plaintiff.

The judgment should be affirmed, with costs.

All concur.