Kiernan v. Cashin

92 N.Y.S. 255

Opinion

PER CURIAM.

We consider that the appellant, claiming to be in possession of the premises, had the right to intervene and file an answer (section 2244, Code Civ. Proc.), and that his answer sufficiently raises the issue to which all the evidence was directed. The fact that he describes himself in his answer as undertenant, whereas in fact he claims under a new lease to himself, is immaterial.

We are not disposed to interfere with the exercise of his discretion by the justice in setting aside the verdict. We think, however, that he erred in granting judgment in favor of the landlord. It has repeatedly been held that, where a jury trial has-been had in summary proceedings, the justice has no power to direct a verdict. George v. Trevellyn, 12 Misc. Rep. 153, 33 N. Y.Supp. 16. Upon the same principle, a justice who sets aside the verdict of a jury as against the evidence should content himself with ordering a new trial.

The order appealed from must be modified by striking out the direction for a judgment in favor of the landlord, and inserting in place thereof a direction for a new trial, and, as so modified, will be affirmed, without costs.