Dabritz v. Blum

Appellate Terms of the Supreme Court of New York

Dabritz v. Blum

38 Misc. 785, 78 N.Y.S. 1113

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1902

StatusPublished

This text of 38 Misc. 785 (Dabritz v. Blum) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dabritz v. Blum, 38 Misc. 785, 78 N.Y.S. 1113 (N.Y. Ct. App. 1902).

Pincite

Opinion

MacLean, J.

In June, 1901, this court, without opinion, reversed a judgment in summary proceedings rendered in favor of the plaintiff and ordered a new trial, with costs, .to abide the event. Erom a judgment again rendered in favor of the plaintiff the tenants appeal, and among other things object because the petition failed to state jurisdictional facts. Upon the second trial the justice allowed an amendment of the petition notwithstanding objection. This was improper. “ The summary proceeding sought to be instituted being in derogation of the common law and special in its nature, in order to confer authority upon the magistrate the statute should have been strictly complied with, particularly in its jurisdictional requirements. * * * In the second place a justice cannot, by amending a proceeding in a particular which is necessary to give him jurisdiction, acquire an authority nunc pro tunc." McAdam, J., in Marchand v. Haber, 16 Misc. Rep. 319-321. The original petition alleges that Clara Dabritz “ is executrix of the last will and testament of Edward Dabritz, deceased, the owner and the landlord in respect to the premises hereinafter described.” This is an insufficient description of the petitioner’s interest which must be particularly described in the petition. Potter v. New York Baptist Mission Society, 23 Misc. Rep. 671. For this reason the final order and judgment should be reversed and the proceeding dismissed.

Freedman, P. J., and Gildersleeve, J., concur.

Final order and judgment reversed and proceeding dismissed.

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MacLean, J.

In June, 1901, this court, without opinion, reversed a judgment in summary proceedings rendered in favor of the plaintiff and ordered a new trial, with costs, .to abide the event. Erom a judgment again rendered in favor of the plaintiff the tenants appeal, and among other things object because the petition failed to state jurisdictional facts. Upon the second trial the justice allowed an amendment of the petition notwithstanding objection. This was improper. “ The summary proceeding sought to be instituted being in derogation of the common law and special in its nature, in order to confer authority upon the magistrate the statute should have been strictly complied with, particularly in its jurisdictional requirements. * * * In the second place a justice cannot, by amending a proceeding in a particular which is necessary to give him jurisdiction, acquire an authority nunc pro tunc." McAdam, J., in Marchand v. Haber, 16 Misc. Rep. 319-321. The original petition alleges that Clara Dabritz “ is executrix of the last will and testament of Edward Dabritz, deceased, the owner and the landlord in respect to the premises hereinafter described.” This is an insufficient description of the petitioner’s interest which must be particularly described in the petition. Potter v. New York Baptist Mission Society, 23 Misc. Rep. 671. For this reason the final order and judgment should be reversed and the proceeding dismissed.

Freedman, P. J., and Gildersleeve, J., concur.

Final order and judgment reversed and proceeding dismissed.

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Bluebook (online)

38 Misc. 785, 78 N.Y.S. 1113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dabritz-v-blum-nyappterm-1902.

Opinion

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