Edaviel Corp. v. Boykin

205 Misc. 622, 129 N.Y.S.2d 149, 1954 N.Y. Misc. LEXIS 2365

Opinions

Per Curiam.

The summary statute (Civ. Prac. Act, § 1425) provides: “If the precept contain a notice that demand is made in the petition for a judgment for rent in arrears, and the precept is served at least five days before the return day thereof, the court, upon rendering a final order, may determine the amount of rent due to the petitioner and give judgment for the amount found to be due. ’ ’

There is no provision in the summary statute for third-party practice.

The provisions for third-party practice contained in section 193-a of the Civil Practice Act are applicable to actions — not to summary proceedings, as was attempted by serving summons and complaint to bring in the third party in this instance.

Manifestly the court below had no jurisdiction to incorporate a third-party judgment in a final order in a summary proceeding. (See Erkins v. Tucker, 62 Misc. 495.)

Although a specific' appeal from the third-party judgment incorporated in the final order was unnecessary, because of the lack of jurisdiction of the subject matter, the third-party defendant appealed from the final order and each and every part thereof.

The judgment in favor of the third-party plaintiff-respondent against the third-party defendant-appellant should be vacated, with $30 costs, and complaint dismissed, with costs, without prejudice to such other remedy as third-party plaintiff-respondent may be advised.