Mishkind-Feinberg Realty Co. v. Rosenhaft

119 N.Y.S. 682

Opinion

GILDERSLEEVE, P. J.

A precept was issued in the Municipal Court requiring the defendant to show cause why possession of certain demised premises should not be delivered to the plaintiff upon the ground of nonpayment of rent. The precept was returnable on July 20, 1909, and, the tenant failing to appear, a final order was issued awarding the possession of the premises to the landlord. On August 20, 1909, the tenant made a motion “on all the papers and proceedings heretofore had herein” for an order vacating and setting aside the final order upon the ground that the court had not acquired jurisdiction. No personal service of the precept was made upon the defendant, and the motion was based upon the ground that the affidavit of service was defective. Under the decision in Friedberger v. Stulpnagel, 59 Misc. Rep. 498, 112 N. Y. Supp. 89, the tenant has not shown himself entitled to the relief sought by his motion. The order appealed from, not being one of those orders enumerated in sections 253—256 of the Municipal Court Act (Laws 1902, pp. 1562, 1563, c. 580), is not an appealable order, and the appeal must be dismissed. Spiegelman v. Union Ry. Co., 95 App. Div. 92, 84 N. Y. Supp. 478.

Appeal dismissed, with $10 costs. All concur.