
    Sarah Ferber Respondent, v. Adolph Appel and Charles A. Todtman, Appellants.
    Second-Department,
    June 8, 1906.
    .Summary proceedings — when petition fails to recite petitioner’s interest in the premises—.such defect robs Municipal Court of New York of jhris.diction—defect not amendable — facts constituting eviction — receipt for rent is not contract.
    When-the petition in summary proceedings merely states that the petitioner is “ lessee and landlord ” of the premises, it fails' to. state the interest of the- petitioner as required by section 2235 of the Code of Civil Procedure.
    Such defect deprives' the Municipal Court of New York of jurisdiction and it cannot he cured by amendment, being jurisdictional. .
    
      A defendant by answering after the denial of his motion to dismiss does not waive such jurisdictional defect.
    Even were the amendment permissible the petitioner must avail herself of permission to amend during the trial; she cannot wait until the close thereof and • move to conform the "pleading to the proof.
    Proof by tenants that part of the premises had been let to other parties establishes an eviction which bars the right of the owner to maintain summary proceedings for non-payment of rent.
    A receipt for rent given to a tenant does not constitute the contract of leasing.
    Appeal by the defendants, Adolph Apfel and another, from a final -order of the Municipal Court of the city of Mew York, borough of Queens, in favor of the plaintiff, rendered on the 21st day of July, 1905.
    
      Alvin C. Cass, for the appellants.
    
      John Bogart, for the respondent.
   Rich, J.:

This is an appeal from a .final order and judgment awarding possession of real property at Boclcaway Beach to. thez respondent after trial of a summary proceeding in the Municipal Court.

The appellants contend, first, that the Municipal Court never acquired jurisdiction of the subject-matter, and that its acts in this proceeding are, for that reason, coram non'judice, and, second, that the undisputed evidence established an eviction, of the appellants from a portion of the leased premises which suspended the payment of rent and the remedy of the lessor for the recovery of the possession, based upon the non-payment of rent, by summary proceedings, while the eviction continued. Section 2235 of the Code of Civil Procedure requires, as a jurisdictional prerequisite to the vesting of jurisdiction of the subject-matter in the Municipal Court, among other things, that the petition must describe “ the premises of which the possession is claimed, and the interest therein of the petitioner?

.The only recital in the petition by which this proceeding was instituted, of the interest of the petitioner in the premises from which she sought to remove the appellants, is that she “ is the lessee and landlord” thereof. On the return day of- the precept counsel' for the appellants, before filing .an answer, moved to dismiss the petition upon fihe ground that such description was not sufficient to confer jurisdiction. The court announced that it would permit an amendment, and,an exception was duly taken.. The petition was not amended. The appellants answered admitting that they were in possession of part of the premises described in the petition “ and that the samé áre hired from said landlord by the-tenants herein ; ” that the July installment of rent was unpaid ; denied all other allega-, tions contained in the petition and. alleged affirmatively the: leasing from an agent of the “ landlord ” of certain' premises of winch that portion from, which thq respondent sought to remove them in'this proceeding was part, her subsequent entry and their continuing eviction by her from a portion of the demised .premises with a •counterclaim for rents amounting to $275, received by the respondent for that portion of the premises from which she had evicted them, and on a later, day to which the proceedings were adjourned, after renewing their motion to dismiss upon the ground of the insufficiency of the petition-, proceeded to trial.

At the,close of the petitioner’s .evidence, counsel for tli§ appellants. moved to dismiss, the proceeding upon the ground, among others, “ that the petition is insufficient inasmuch as it wholly fails to describe the interest of the petitioner in the premises as required by section 2235 of the Code,” in answer to which the. court said:

“ I will permit an amendment of 'the -petition to that extent showing her real interest in'-the premises, -but 1/ don’t- think it is necessary un'dér your answer,” and denied the motion, to which ruling an exception was taken. . Flo- amendment o.f the petition was then made. 'At the-close of the-case counsel renewed his motion and asked for judgment for the tenants dismissing the proceeding. The respondent thereupon moved to amend the petition'to conform to the proof, which motion was granted. _ '

The petition did not conform- to the requirements of the Oode. It contains no description of the petitioner’s interest in the'property. The statement -that the petitioner-wás the lessee and- landlord is the assertion merely of an Interest, but not-.a description of such interest. Courts have frequently held that a petition is fatally defective and insufficent to confer jurisdiction which sets up the petitioner’s interest as being that of “ landlord” "(Kazis v. Loft, 80 N. Y. Supp. 1015 ; Loft v. Kaziz, 84 id. 228), in- wh-icbqit was held that an averment that the petitioner was the lessee and as such the landlord, did not meet the Code requirement, and was insufficient to confer jurisdiction. (Engel, Heller Co. v. Elias Brewing Co., 37 Misc. Rep. 480 ; Potter v. New York Baptist Mission Society, 23 id. 671 ; Ross v. New York City Baptist Mission Society, Id. 683; Cram v. Dietrich, 38 id. 790.)

The trial justice evidently recognized the force of the objection, but overruled it upon the theory.that the appellants had, by their answer, waived the question of jurisdiction, and that an. amendment of the petition would cure the defect nunc pro tunc. In both of these conclusions he was wrong. The defect being jurisdictional lie was without' power to allow an amendment (Potter v. New York Baptist Mission Society, supra), and the a'nswer of the appellants did not constitute an admission or waiver which included them or conferred jurisdiction upon the court. (Loft v. Kaziz ; Potter v. New York Baptist Mission Society, supra.)

Were it to be conceded that an amendment was permissible and would have met the objection interposed, the concession would not aid the respondent, for the petition was not in fact formally amended at any time during the pendency of the proceeding. Although the court several times announced that he would permit an amendment, the respondent did not avail herself of the permission so given. She contented herself with a motion at the close of the evidence to amend her petition so as to conform to the proofs, the granting of which did not change the situation .or strengthen her position, for the only evidence of any interest possessed by her in the demised premises contained in the record is that she was the “ landlord ” in this proceeding, which she had already set forth in her petition. The Municipal Court exceeded its powers in taking cognizance of the proceeding, owing to this fatal jurisdictional defect, and its acts, including the final order and judgment, were without authority of law and cannot be sustained. -

The receipt given the appellants by respondent’s agent for the first installment of rent paid was not the contract of leasing between the' parties.. The contract was oral and was testified to by the appellants. Their testimony as to the property leased was not disputed or contradicted. It established a leasing of premises a portion of which the respondent had evicted them from, the legal effect of which was to- suspend, during the period of its continuanee, the right of the respondent to maintain summary proceedings for non-payment of such rent. (Sirey v. Braems, 65 App. Div. 472 ; Matter of Hall v. Irvin, 78 id. 107.)

It follows that the judgment and final order of the Municipal Court must be reversed and á new trial ordered, costs to abide the event. '

Hirschberg, P. J., and Jenks, J., concurred ; Woodward and Miller, JJ., concurred upon the last ground stated in the opinion.

Judgment and final .order of the_ Municipal Court reversed and • new trial ordered, costs.to abide the event. • .  