
    John M. Jones and Others, as Executors of and Trustees under the Last Will and Testament of Morgan Jones, Deceased, Respondents, v. Margaret T. Reilly and Others, Defendants; Hannah R. Rockwell and George H. Brooke, Appellants.
    
      Summary proceedings—the Supreme Oourt has not jurisdiction over , them — an action b'ought therein, after the dismissal under a plea of title of summary proceedings instituted in the Municipal Oourt, field to he in ejectment.
    
    The Supreme Court has not jurisdiction of a summary proceeding to remove a tenant for non-payment of rent.
    The defendants in a summary proceeding, instituted in the Municipal Court of the city of Hew York, to remove tenants for non-payment of rent, having raised the objection that the proceeding would necessarily involve a determination of the title, the proceeding was discontinued and an action was brought in the Supreme Court. The complaint in such action alleged that the plaintiffs’ predecessor in title had been the owner in fee of the premises, and as such had leased the same' to one Henderson; that Henderson had neglected to pay the rent stipulated, and was then indebted by reason thereof in a certain sum; that three days’ notice to quit had been served. The relief demanded was that the defendants in possession of the premises be removed therefrom and that •possession thereof be awarded to the plaintiffs.
    The defendants interposed answers, denying the plaintiffs’ title and right to possession.
    
      Meld, that the proceeding was an action in ejectment and not a summary proceeding to, remove a tenant for non-payment of rent, and that, as the .defendants had requested the court to pass upon the question of the plaintiffs’ title and right to possession, they could not challenge the power of the court to do so.
    
      Appeal by the defendants, Hannah E. Bockwell and another,, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the= 18th day of June, 1901, upon the verdict of a jury,'and also from an order entered in said clerk’s office on the 10th day of J une, 1901, denying the said defendants’ motion for a new trial made upon the minutes.
    
      Cla/renee L. Barber, for the appellants.
    
      Richard T. Greene, for the respondents.
   McLaughlin, J.:

The plaintiffs in this action instituted, under subdivision 2 of section 2231 of the Code of Civil Procedure, a proceeding in the Municipal Court of the city of New York to dispossess the defendants for the non-payment of rent. One Henderson, a defendant in that proceeding, interposed an answer in which he alleged that the defendant Hannah B. Eockwell was the owner in fee and entitled to the possession of the premises in question and that the trial of the proceeding would necessarily involve a determination of the title. In connection with the answer, he offered the bond specified in section 2952 of the Code, and claimed that the court had no jurisdiction to pass upon the questions raised by the petition and answer, and, upon his motion, the proceeding was discontinued. Subsequently the plaintiffs, within the time specified in section 2952 of the Code, deposited with the clerk of the Municipal Court the summons and complaint in this action. The' complaint contained allegations to the effect that the plaintiffs’ predecessor in title had been the owner in fee of the premises, and as such had leased the same to Henderson, who had neglected to pay the rent stipulated, and was then indebted by reason thereof in a sum specified; that three days’ notice to quit had been served; that Henderson had died intermediate the commencement of the proceeding in the Municipal Court and the deposit with the clerk of the summons and complaint, and for that reason his representatives had been made defendants. The relief demanded was that the defendants be removed from and the possession of the premises in question be awarded to the plaintiffs. The defendants Bockwell and Brooke interposed answers — .the former denying the material ■ allegations of the complaint and alleging title in herself and those under whom she claimed by adverse possession —- and the latter alleging title in Rockwell, and that she had executed to him a mortgage upon the premises, which was then a valid and subsisting lien. He also denied that the plaintiffs had any title.

Upon the issue thus formed the parties went to trial. The proof offered on the part of the plaintiffs was to the effect that the defendants’ possession was under a written lease given by the plain, tiffs’ predecessor to Henderson, the defendants’ predecessor, while on the part of the defendants the proof offered was directed solely to the question of establishing adverse possession in Rockwell or those under whom she claimed. This was the situation at the close of the trial, and the only question presented, therefore, was, as the trial court properly held, whether the relation of landlord and tenant existed between the parties during the time the defendants and those under whom they claimed had been in possession. The determination of that question necessarily settled the issues raised by the pleadings, because if that relation did exist, then the claim made- by the defendants was disposed of. This question was submitted to the jury with appropriate instructions as to the law bearing upon the .same. The jury found in favor of the plaintiffs, and from the judgment thereafter entered the defendants Rockwell and Brooke have appealed.

We are of the opinion that the judgment should be affirmed. ‘The action can properly be treated as an action in ejectmént. But it is suggested by the appellants, that the Supreme Court had no jurisdiction; that the action must be treated as a summary proceeding to remove a tenant for non-payment of rent. The Supreme -Court has no jurisdiction in summary proceedings. Such proceedings exist solely by virtue of the statute, and jurisdiction thereof . has not been conferred upon the Supreme Court. (Code Civ. Proc. ■;§ 2234.) But this action was not a summary proceeding. It was an action in ejectment and was properly treated as such. The complaint contains appropriate allegations for the determination of the questions involved in such an action. Title and the right to pos- ■ session in the plaintiffs, was alleged. This was denied and the .Supreme Court had jurisdiction to pass upon those questions-(Code Civ. Proc. §§ 1638-1650.) It did pass upon them, at appellants’ request, and it does not lie with them now to say that the ■court ought not to have done so. ( Wilgus v. Wilkinson, 50 App. Div. 1.)

Upon the merits the judgment is right and should be affirmed. Judgment and order affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., ■concurred.

Judgment and order affirmed, with costs.  