Miressi v. Funicello

Appellate Division of the Supreme Court of New York

Miressi v. Funicello

277 A.D.2d 931

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 7, 1950

StatusPublished

This text of 277 A.D.2d 931 (Miressi v. Funicello) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miressi v. Funicello, 277 A.D.2d 931 (N.Y. Ct. App. 1950).

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Opinion

In a summary proceeding to recover possession of real property, the final order of the City Court of New Rochelle awards possession to the landlord. On appeal, the said order was affirmed by the County Court, Westchester County. Order of the County Court, Westchester County, modified on the law by striking out everything following the words “ be and the same is ” and in place thereof inserting a provision denying the tenants’ motion for summary judgment. As thus modified, the order is unanimously affirmed, without costs. Material allegations of the petition having been denied by the tenants’ answer, it was incumbent upon the landlord to establish them by evidence upon a trial [932]*932before being entitled to a final order. (Philip Realty é Constr. Co. v. Chubin, 135 App. Div. 766; Civ. Prae. Act, § 1428.) It has been correctly held that the first and third separate defenses set forth in the tenants’ answer are insufficient in law. The matters raised by the second separate defense can be proved under the denial of the allegation of good faith. Adel, Wenzel and MacCrate, JJ., concur; Carswell, Acting P. J., and Johnston, J., concur on the further ground that rule 113 of the Rules of Civil Practice does not apply to summary proceedings. (905 West End Ave. Corp. v. Peers, 118 Misc. 754.)

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In a summary proceeding to recover possession of real property, the final order of the City Court of New Rochelle awards possession to the landlord. On appeal, the said order was affirmed by the County Court, Westchester County. Order of the County Court, Westchester County, modified on the law by striking out everything following the words “ be and the same is ” and in place thereof inserting a provision denying the tenants’ motion for summary judgment. As thus modified, the order is unanimously affirmed, without costs. Material allegations of the petition having been denied by the tenants’ answer, it was incumbent upon the landlord to establish them by evidence upon a trial [932]*932before being entitled to a final order. (Philip Realty é Constr. Co. v. Chubin, 135 App. Div. 766; Civ. Prae. Act, § 1428.) It has been correctly held that the first and third separate defenses set forth in the tenants’ answer are insufficient in law. The matters raised by the second separate defense can be proved under the denial of the allegation of good faith. Adel, Wenzel and MacCrate, JJ., concur; Carswell, Acting P. J., and Johnston, J., concur on the further ground that rule 113 of the Rules of Civil Practice does not apply to summary proceedings. (905 West End Ave. Corp. v. Peers, 118 Misc. 754.)

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Bluebook (online)

277 A.D.2d 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miressi-v-funicello-nyappdiv-1950.

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