Copperfretti v. Shephard

241 A.D. 872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1934
• Status: Published

Opinion

Order of Appellate Term affirming an order of the Municipal Court, which denied the tenant’s motion to open the default in summary proceedings and to dismiss the petition, reversed on the law and the facts, with costs, order of the Municipal Court reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The respondent, as landlord of the premises in question, claims title under a sale of the premises by the sheriff of Kings county, conducted by him pursuant to an uncollected judgment against James A. Shephard, Jr., the former owner of the property. The judgment against Shephard was illegally obtained upon substituted service and is void, since the requirements of section 23 of the New York City Municipal Court Code were not followed. A judgment may always be attacked directly or collaterally when it is shown that the court never obtained jurisdiction. (Matter of Doey v. Howland Co., 224 N. Y. 30.) Since the landlord-respondent has no title, he cannot maintain summary proceedings against the tenant. It is immaterial to allege that the tenant’s excuse for her default is insufficient in law and that she fails to show a good defense upon the merits. Lazansky, P. J., Young, Hagarty, Carswell and Scudder, JJ., concur.