Millinery Center Building Corp. v. Hausman Bros.

Appellate Terms of the Supreme Court of New York

Millinery Center Building Corp. v. Hausman Bros.

161 Misc. 277, 291 N.Y.S. 687, 1936 N.Y. Misc. LEXIS 1524

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 29, 1936

StatusPublished

This text of 161 Misc. 277 (Millinery Center Building Corp. v. Hausman Bros.) 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

Millinery Center Building Corp. v. Hausman Bros., 161 Misc. 277, 291 N.Y.S. 687, 1936 N.Y. Misc. LEXIS 1524 (N.Y. Ct. App. 1936).

Pincite

Opinion

Per Curiam.

The final order in favor of the landlord on the tenant’s default in the July summary proceeding, if due service of the precept had been made therein, would establish that the defendant was in possession of the premises after default in payment [278]*278of the July rent, and preclude the defendant herein from introducing evidence of a prior surrender of the premises. (Brown v. Mayor, 66 N. Y. 385, 391; Reich v. Cochran, 151 id. 122; Grafton v. Brigham, 70 Hun, 134.) The decision in Warrin v. Haverty (149 App. Div. 564) is not based on the doctrine of prior adjudication. But the affidavit of the process server in the present case that he made conspicuous place service at the premises is on a printed blank indorsed on the precept stating, among other things, that the tenant “ could not be found after due and diligent search; ” it presents not the slightest evidence that any effort was made to serve the tenant in the manner prescribed by subdivision 1 of section 1421 of the Civil Practice Act, and in the absence of such evidence it follows that the Municipal Court had no jurisdiction of the person of the tenant in the July summary proceeding, and the final order relied upon by plaintiff -is inoperative. (Matthews v. Carman, 122 App. Div. 582; Mischner v. Altman, 145 id. 251.)

Order affirmed.

All concur. Present — Lydon, Levy and Callahan, JJ.

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Per Curiam.

The final order in favor of the landlord on the tenant’s default in the July summary proceeding, if due service of the precept had been made therein, would establish that the defendant was in possession of the premises after default in payment [278]*278of the July rent, and preclude the defendant herein from introducing evidence of a prior surrender of the premises. (Brown v. Mayor, 66 N. Y. 385, 391; Reich v. Cochran, 151 id. 122; Grafton v. Brigham, 70 Hun, 134.) The decision in Warrin v. Haverty (149 App. Div. 564) is not based on the doctrine of prior adjudication. But the affidavit of the process server in the present case that he made conspicuous place service at the premises is on a printed blank indorsed on the precept stating, among other things, that the tenant “ could not be found after due and diligent search; ” it presents not the slightest evidence that any effort was made to serve the tenant in the manner prescribed by subdivision 1 of section 1421 of the Civil Practice Act, and in the absence of such evidence it follows that the Municipal Court had no jurisdiction of the person of the tenant in the July summary proceeding, and the final order relied upon by plaintiff -is inoperative. (Matthews v. Carman, 122 App. Div. 582; Mischner v. Altman, 145 id. 251.)

Order affirmed.

All concur. Present — Lydon, Levy and Callahan, JJ.

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Bluebook (online)

161 Misc. 277, 291 N.Y.S. 687, 1936 N.Y. Misc. LEXIS 1524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millinery-center-building-corp-v-hausman-bros-nyappterm-1936.

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