
    Augusta E. George, Resp’t, v. William Trevellyn, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 1, 1895.)
    
    Summary proceedings—Direction op verdict.
    Where a jury trial is demanded and had in a summary proceeding, brought in a district court in the city of New York, the justice has no power to direct a verdict.
    Appeal from a final order in favor of plaintiff, entered on a verdict directed by the court.
    
      August P. Wagener, for app’lt.
   Giegerich, J.

This is an appeal by the tenant from a final order made in summary proceedings to recover the possession of certain real property situate in the city of New York, after a default in the payment of rent. On the return day of the precept the tenant appeared and filed a verified answer, whereby he, in substance, denied each allegation of the petition, except that he was in possession of the demised premises upon the same terms as alleged in the petition, and, for a further and separate defense, pleaded eviction. A jury trial having been demanded when issue was joined, the proceeding was adjourned. On the day fixed for the trial the parties appeared in the court below, the jury was empaneled and sworn, and the trial thereupon proceeded. At the close of the testimony, and at the request of counsel for the landlord, the justice directed a verdict, to which counsel for the tenant duly excepted. A final order was thereupon made awarding to the landlord the delivery of the possession of the property, from which the tenant has appealed.

On the argument of the appeal the tenant only appeared by counsel, the landlord not appearing. The precise point presented by this appeal was determined by this court in Horn v. Prior, 22 St. Rep. 237, in which it was held, pursuant to the ruling establishment by the case of Blumburg v. Briggs, 10 St. Rep. 242, that where a jury trial is demanded and had in a summary proceeding brought in a district court in the city of New York to recover the possession of real property, the justice has no power to direct a verdict. It therefore follows that the final order appealed from must be reversed, and a new trial ordered, with costs to abide the event.  