
    Julius Dreyfus, Respondent, v. Michael T. Carroll, Appellant.
    (Supreme Court, Appellate Term,
    June, 1899.)
    1. Summary proceedings — Petition must show relation of parties as landlord and tenant — Jurisdiction.
    Where a petition in summary proceedings fails to show that the conventional relation of landlord and tenant exists between the parties, the petitioner failing to connect himself with the title of the person whom he alleges made the lease, the court has no jurisdiction.
    
      2. Same — Omission of jurisdictional fact always available on appeal.
    The omission from such a petition of a jurisdictional fact may be taken advantage of by the tenant on his appeal from a judgment granted against him by default, although he had once appeared in the proceeding on a certain adjourned day.
    Appeal by the tenant from a final order in summary proceedings made in the Municipal Court of the City of Hew York, fourth district, borough of Manhattan.
    Julius Henry Cohen, for appellant.
    Maurice Rapp, for respondent.
   Leventritt, J.

This is an appeal by the tenant from a final order in summary proceedings and involves for our determination the sufficiency of the petition on which the proceeding is based.

So much of the petition as is material to this review reads: “ The petition of Albert E. Figor of said city respectfully shows that your petitioner is the agent of Julius Dreyfus who is the landlord of the following premises, to wit: The entire house and premises, known as Humber 316 East Fourteenth street in the Fourth district of the borough of Manhattan, in the city of Hew York, and that on or about the 15th day of October, 1897, Pauline W. Le Roy, Stuyvesant Le Roy and Amos T. French, as trustees and former landlords entered into an agreement in writing with Michael T. Carroll as tenant thereof by the terms of which said agreement the said tenant hired from the said landlord the said premises before described, and undertook and promised to pay the said landlord the sum of $1,200 per annum also for the further term of fifteen days, six months and one year, from 15th Oct., 1898, at the yearly rent or sum of $1,300 per annum, all payable monthly in advance on the first day of each month thereafter during occupancy for the use and occupation thereof, and did thereupon enter into the occupation of said premises.

“That on the 1st day of Feby., 1899, there was due to the said landlord and by virtue of said agreement the sum of $216.68 for one month’s rent of the said premises before described, to wit: from the 1st day of Feby., 1899, to the 1st day of March, 1899.”

The petition "is dated and verified the 3d day of March, 1899.

On the return day of the precept the tenant, failing to answer, the justice of his own motion directed that the proceeding stand over to enable the tenant to interpose an answer. On the adjourned day the tenant obtained time for that purpose but defaulting on the next adjourned day a final order of dispossession was made.

The tenant contends that the petition is fatally defective in its omission to allege the jurisdictional fact of the existence of the conventional relation of landlord and tenant, and that his suffering a default to be taken after his appearance in court, does not preclude his remedy by appeal.

The. crucial question in determining the sufficiency of the petition is: Does it show by an allegation of fact that Julius Dreyfus was landlord and Michael T. Carroll his tenant on the 1st day of February, 1899, when the rent accrued for the nonpayment of which this proceeding was instituted. The answer must be in the negative. The petition states merely that Dreyfus was the landlord on the 3d day of March, 1899; it does not appear that he had any interest in the premises on the 1st day of February, 1899. Had the original letting been by him it would, of course, been unnecessary to allege how his interest in the premises was acquired as the tenant would have been estopped from denying his title, but the lease having been made by the Le Eoys and French it became necessary to allege the facts by which the title to the premises passed from them to him. Hnder such circumstances the bald statement that he was the landlord at the time of prayiixg for the issuance of a precept is, in the absence of allegations of fact showing devolution of title prior to the maturity of the rent, a mere conclusion.

Being a stranger to the lease he remains a stranger to the proceedings, despite calling himself landlord, because he fails to show how he succeeded to the lessors’ interest.

We are not permitted to indulge in any inference to bridge the hiatus in the petition, for we should then be supplying jurisdictional facts. It is elementary that the conventional relations of landlord and tenant must be shown to have existed between the parties b"y agreement. Benjamin v. Benjamin, 5 N. Y. 383; People v. Simpson, 28 N. Y. 55; Evertson v. Sutton, 5 Wend. 281. Otherwise there is no authority in the justice to issue the precept. The petition before us does not allege any agreement directly with Dreyfus or indirectly with him by showing his succession to the rights of the prior landlords.

There is no merit in respondent’s contention that this order, having been granted on default, is not appealable. The precise question has been adversely decided in a number of cases. Jacobs v. Zeltner, 9 Misc. Rep. 455; Hurry v. Coffin, 11 Daly, 180; Spiero v. Metropolitan Street R. Co., 14 Misc. Rep. 21. Besides, as the objection goes to the jurisdiction, it can be raised on appeal after default. The mere appearance of the tenant in court bn one of the adjourned days cannot supply an omitted jurisdictional fact without which the petition conferred no power on the court to act. Wands v. Robarge, 24 Misc. Rep. 273. The order must be reversed.

Freedman, P. J., and MacLean, J., concur.

Order reversed, with costs to appellant.  