Peabody v. Long Acre Square Building Co.

Appellate Division of the Supreme Court of New York

Peabody v. Long Acre Square Building Co.

112 A.D. 114, 98 N.Y.S. 242, 18 N.Y. Ann. Cas. 249, 1906 N.Y. App. Div. LEXIS 614

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

DecidedApril 6, 1906

StatusPublished

This text of 112 A.D. 114 (Peabody v. Long Acre Square Building Co.) 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

Peabody v. Long Acre Square Building Co., 112 A.D. 114, 98 N.Y.S. 242, 18 N.Y. Ann. Cas. 249, 1906 N.Y. App. Div. LEXIS 614 (N.Y. Ct. App. 1906).

Pincite

Opinion

Patterson, J.:

First. The allegations of the petition were sufficient to confer jurisdiction of the proceeding upon the 'Municipal Court. Mr. Peabody, the petitioner, states positively that three days’ notice in writing requiring in the alternative the payment of the rent or the , possession of the premises and the payment of the taxes or the . possession of the premises was served on behalf of the landlords. . upon the tenant, and that the service was made by delivering to and leaving with Henry M. Work, the treasurer of the company, personally, a true copy of the notice. He annexes to the petition a copy of the certificate of the person who served the notice in which it is stated that the original notice was shown to Work at the time-service was made. But even if the petition was defective, in not [119]*119alleging that the original notice was shown when service was made that was cured by the answer- of the tenant. The trial proceeded without objection being taken to the jurisdiction. Objections to proceedings which are not connected with the matters in issue, but are preliminary and go only to the right and power of the court to hear the case, are technical and are deemed to have' been waived if the party proceeds to the trial or argument without raising them. (Cowenhoven v. Ball, 118 N. Y. 232.) This is not a. case where the court is without jurisdiction of the subject-matter of the proceeding. In such a case the objection to jurisdiction may be taken on appeal in the first instance or at any time. (Matter of Walker, 136 N. Y. 20.) Here the Municipal Court had jurisdiction of the subject-matter. The only doubt arising would be as to its acquiring jurisdiction of the person of the tenant by failure to exhibit the original notice, and that objection was waived. Showing the original notice is only an incident connected with the service of process issued to bring a party into court.

Second. The contention that there was an insufficiency of proof because of the omission to show that the original notice was exhibited at the time of serving is not well founded. The Municipal Court, marshal was not called as a witness, but the treasurer of the tenant was put upon the stand and swore that the three days’ notice and demand “ to pay the rent and taxes or move ” was served upon him.. That is sufficient as an admission that the service was properly and duly made, and the fact of service being shown by this witness, it was unnecessary for the landlords to prove every detail of the method of the service. We fail to find in the record that a motion was made td dismiss the petition on the ground that service was not made according to the requirements of the statute. The motion actually made was that the petition be dismissed on the ground that no demand 'had been shown for the rent or for the taxes, and to meet that objection the witness Work was called, who gave the testimony above referred to. We think, under the circumstances, that the proof wa,s sufficient.

Third. The final order is attacked because it is stated therein that it was issued for the non-payment of taxes as well as for the nonpayment of rent; that the taxes having been paid, there was no foundation for granting the final order because of their alleged non[120]*120payment. The significance and importance of this contention reside in the fact that a tenant dispossessed for non-payment of taxes has no right of redemption under existing provisions of law (Witty v. Acton, 58 Hun, 552), whereas, if he were dispossessed only for the non-payment of rent, he may redeem under section 2256 of the Code of Civil Procedure, when - he is a lessee with an unexpired term of more than five years — as he is in the present case. The question arising on this contention relates to the substance of the final order as well as to its form. There can be no dispute but that at the time the petition was filed and at the time the answer was served and the proceeding went to issue, the taxes had not been paid. Her can it be disputed that upon the trial on the first day of June evidence was given on the part of the landlords. that the taxes had not been paid. On the second day of June, Work, the treasurer of the tenant, whose business it was to pay taxes' for the corporation, testified that the taxes had not been paid, and then that he had no knowledge whether they were paid or not; but on the same day the attorney for the tenant testified as a witness on its behalf that two days previously at the request of the president of the corporation he had paid by check the taxes upon the premises “ against which this proceeding was brought.” It is apparent, therefore, that if the taxes were paid, such payment was made after issue was joined and without the fact being set up in the answer or in any way communicated to the landlords. The justice "of the Municipal Court was authorized to try only the issues that were before him. Section 2247 of the Code of Civil Procedure directs that the issues joined by the petition and answer must be tried by the judge or justice. It is not urged that by the payment of the taxes a final order of dispossession was arrested. That final order must necessarily relate to the right of the landlords as claimed at the time issue .is joined, and thó reasons for granting it are necessarily those which existed at the time the landlords’ right to repossession acqrued. We are not now dealing with the question of the enforcement of the order by staying the issuance of a warrant. The party against whom a final order is madé may stay such issuance by complying with the provisions of section 2254 of the Code of Civil Procedure; that is to .say, he must pay or secure all the rent, taxes, interest and costs. Had the tenant paid [121]*121or offered to pay, before the final order was issued, all that was necessary to prevent the issuance of a warrant, that might have been sufficient under what was held in. Matter of Flewwellin v. Lent (91 App. Div. 430), but it did hot and thus the rights of the landlords to their full extent were left unimpaired.

The determination óf the Appellate Term must be affirmed, with costs.

Ingraham, Laughlin. and Clarke, JJ., concurred; O’Brien, P. J., dissented.

Determination affirmed, with costs. Order'filed.

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Patterson, J.:

First. The allegations of the petition were sufficient to confer jurisdiction of the proceeding upon the 'Municipal Court. Mr. Peabody, the petitioner, states positively that three days’ notice in writing requiring in the alternative the payment of the rent or the , possession of the premises and the payment of the taxes or the . possession of the premises was served on behalf of the landlords. . upon the tenant, and that the service was made by delivering to and leaving with Henry M. Work, the treasurer of the company, personally, a true copy of the notice. He annexes to the petition a copy of the certificate of the person who served the notice in which it is stated that the original notice was shown to Work at the time-service was made. But even if the petition was defective, in not [119]*119alleging that the original notice was shown when service was made that was cured by the answer- of the tenant. The trial proceeded without objection being taken to the jurisdiction. Objections to proceedings which are not connected with the matters in issue, but are preliminary and go only to the right and power of the court to hear the case, are technical and are deemed to have' been waived if the party proceeds to the trial or argument without raising them. (Cowenhoven v. Ball, 118 N. Y. 232.) This is not a. case where the court is without jurisdiction of the subject-matter of the proceeding. In such a case the objection to jurisdiction may be taken on appeal in the first instance or at any time. (Matter of Walker, 136 N. Y. 20.) Here the Municipal Court had jurisdiction of the subject-matter. The only doubt arising would be as to its acquiring jurisdiction of the person of the tenant by failure to exhibit the original notice, and that objection was waived. Showing the original notice is only an incident connected with the service of process issued to bring a party into court.

Second. The contention that there was an insufficiency of proof because of the omission to show that the original notice was exhibited at the time of serving is not well founded. The Municipal Court, marshal was not called as a witness, but the treasurer of the tenant was put upon the stand and swore that the three days’ notice and demand “ to pay the rent and taxes or move ” was served upon him.. That is sufficient as an admission that the service was properly and duly made, and the fact of service being shown by this witness, it was unnecessary for the landlords to prove every detail of the method of the service. We fail to find in the record that a motion was made td dismiss the petition on the ground that service was not made according to the requirements of the statute. The motion actually made was that the petition be dismissed on the ground that no demand 'had been shown for the rent or for the taxes, and to meet that objection the witness Work was called, who gave the testimony above referred to. We think, under the circumstances, that the proof wa,s sufficient.

Third. The final order is attacked because it is stated therein that it was issued for the non-payment of taxes as well as for the nonpayment of rent; that the taxes having been paid, there was no foundation for granting the final order because of their alleged non[120]*120payment. The significance and importance of this contention reside in the fact that a tenant dispossessed for non-payment of taxes has no right of redemption under existing provisions of law (Witty v. Acton, 58 Hun, 552), whereas, if he were dispossessed only for the non-payment of rent, he may redeem under section 2256 of the Code of Civil Procedure, when - he is a lessee with an unexpired term of more than five years — as he is in the present case. The question arising on this contention relates to the substance of the final order as well as to its form. There can be no dispute but that at the time the petition was filed and at the time the answer was served and the proceeding went to issue, the taxes had not been paid. Her can it be disputed that upon the trial on the first day of June evidence was given on the part of the landlords. that the taxes had not been paid. On the second day of June, Work, the treasurer of the tenant, whose business it was to pay taxes' for the corporation, testified that the taxes had not been paid, and then that he had no knowledge whether they were paid or not; but on the same day the attorney for the tenant testified as a witness on its behalf that two days previously at the request of the president of the corporation he had paid by check the taxes upon the premises “ against which this proceeding was brought.” It is apparent, therefore, that if the taxes were paid, such payment was made after issue was joined and without the fact being set up in the answer or in any way communicated to the landlords. The justice "of the Municipal Court was authorized to try only the issues that were before him. Section 2247 of the Code of Civil Procedure directs that the issues joined by the petition and answer must be tried by the judge or justice. It is not urged that by the payment of the taxes a final order of dispossession was arrested. That final order must necessarily relate to the right of the landlords as claimed at the time issue .is joined, and thó reasons for granting it are necessarily those which existed at the time the landlords’ right to repossession acqrued. We are not now dealing with the question of the enforcement of the order by staying the issuance of a warrant. The party against whom a final order is madé may stay such issuance by complying with the provisions of section 2254 of the Code of Civil Procedure; that is to .say, he must pay or secure all the rent, taxes, interest and costs. Had the tenant paid [121]*121or offered to pay, before the final order was issued, all that was necessary to prevent the issuance of a warrant, that might have been sufficient under what was held in. Matter of Flewwellin v. Lent (91 App. Div. 430), but it did hot and thus the rights of the landlords to their full extent were left unimpaired.

The determination óf the Appellate Term must be affirmed, with costs.

Ingraham, Laughlin. and Clarke, JJ., concurred; O’Brien, P. J., dissented.

Determination affirmed, with costs. Order'filed.

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112 A.D. 114, 98 N.Y.S. 242, 18 N.Y. Ann. Cas. 249, 1906 N.Y. App. Div. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peabody-v-long-acre-square-building-co-nyappdiv-1906.

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