
    Rebecca Haims, Landlord-Appellant, v. William C. Rehm, Tenant-Respondent.
    (Supreme Court, Appellate Term,
    July, 1910.)
    Summary proceedings — Final order — Dismissal — On the merits.
    A dismissal of summary proceedings to recover possession of real property on the merits, for failure to prove the agency of the person verifying the petition, is error.
    Appeal by the landlord from an order of the Municipal Court of the city of Hew York, second district, borough of Manhattan, dismissing the petition in a summary proceeding upon the merits.
    Moses T. Barrows, for appellant.
    Martin M. Goodman, for respondent.
   Guy, J.

The petition of the landlord herein avers that the defendant leased the premises in question on October 15, 1909, promising to pay the sum of forty dollars per month in advance on the fifteenth day of each month, and that there was one month’s rent due from April 15, 1910, to Hay 15, 1910. The petition was verified and the precept issued and served on April 15, 1910. At the close of the testimony given on behalf of the landlord, the tenant moved to dismiss the proceeding upon the ground that the agency of the person verifying the petition had not been shown, and that the proceedings could not be legally instituted prior to April 16, 1910. McDonald v. Ruggiero, 121 N. Y. Supp. 417. The court below thereupon dismissed the petition upon the merits. This was error. The most that can be said is that there was a failure of proof, or, that the proceedings were prematurely brought and, therefore, should have been dismissed, but not upon the merits.

Order modified by striking therefrom the words “ on the merits” and, as modified, affirmed, with costs to the appellant.

Seabury and Bijur, JJ., concur.

Order modified and, as modified, affirmed, with costs.  