Jones v. Reilly

44 A.D. 635, 61 N.Y.S. 67

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1899
• Status: Published

Opinion

Van Brunt, P. J.:

Heretofore, and on Friday, the 30fcli day of June, 1899, summary proceedings were begun by the above-named plaintiffs, claiming to be -landlords, in the Municipal Court of the city of New York, borough of Blanhattau, for the tenth judicial district, against Andrew Henderson, since deceased, as a tenant, and Hannah R. Rockwell and others, as under tenants, for a final order to remove said tenants and under tenants from the possession of the premises set forth in the plaintiffs’ complaint. The day for the return of the precept was the third of July (the following Btonday) at ten a. m. At the time fixed for the return of the said precept, the. -defendant Rockwell filed ah answer alleging that she was the owner in fee simple of the premises, mentioned and described iu the precept, and that she and her grantors had been in undisturbed possession thereof for a period of) more than twenty years last past as owners in fee and claiming to be such owners, and that the title to real property would necessarily be involved in the proceeding, if tried. And the said defendant having filed the necessary undertaking, the proceeding was discontinued pursuant to section 2954 of the Code. The plaintiffs thereupon brought this action upon the same cause, to which the defendant Rockwell interposed an answer. One of the defendants, Henderson, died during the pendency of the action, and an.amended and supplemental complaint was thereupon issued and served by the plaintiffs, alleging the fact of his death and bringing in his heirs at law and next'of kin as parties defendant. The defendant Rockwell answered the amended complaint, including in her answer matters which the plaintiffs claim would constitute a new defense, and which they move.to strike out, under section 2957 of the Code, such section providing that the defendant’s answer in the new action brought according to tlie .previous sections of the Code must set up tlie same defense only which was made before the justice. The court denied the motion, and from the order thereupon entered, this appeal is taken. Upon an examination of the answer of the defendant, it seems to us that the same defense is set up by the answer in the action in this court that was interposed to the precept, in the Municipal Court. The answer in the latter court was really a pleading of the general issue, as far as title was concerned. The only part of the answer in this court which seems to be in any way additional to that contained in the answer to the.precept in the Municipal Court is the denial of the allegation that the plaintiffs are the executors of and trustees under ‘the last will and testament of Morgan Jones, déceased. The allefation in the petition to this effect was not enied in the answer in the Municipal Court, and consequently that issue cannothe raised in the new action brought in the Supreme-Court. The order appealed from should, therefore, be modified, by striking out that denial of the answer and, as modified, affirmed, without costs to either party. Barrett, Rumsey, Patterson and O’Brien, JJ„ concurred.