People ex rel. Roberts v. Matthews

43 Barb. 168, 1864 N.Y. App. Div. LEXIS 175

• Court: New York Supreme Court
• Decided: November 7, 1864
• Status: Published

Opinion

Sutherland, J.

The affidavit on which the summons was issued did not show, or state facts to show, that the relation of landlord and tenant existed between Matthews and Roberts. It is difficult to make sense of the affidavit, but the only reading it is susceptible of, is to the effect that, about the 1st of May, 1863, Walter L. Cutting, then owner of the premises, leased them to Roberts, (without stating any term;) that afterwards, Matthews purchased them for the term of one year, commencing on the 1st day of May, 1863, and ending on the 1st day of May, 1864, which term had expired, and that Roberts holds over, &c. without the permission of his landlord, after the expiration “of his said term therein.”

I know that bad grammar merely, does not vitiate a written instrument; but a court has no right to transpose sentences, or parts of a sentence, or open a sentence and take out of its middle a portion of it, and put it on to either end, or in a different position, so as to give the instrument or the sentence a different meaning from that which it had when made, or whén presented to the court.

[New York General Term, November 7, 1864.

The affidavit showing neither the relation of landlord and tenant, nor that any particularly specified term of Roberts had expired, the summons was unauthorized, and all subsequent proceedings were void.

The-affidavit which is the foundation of the “summary proceeding to recover the possession of lands,” should not be uncertain, or contradictory. (Wiggin v. Woodruff, 16 Barb. 474.) The preliminary affidavit should make out a plain case. (Hill v. Stocking, 6 Hill, 317.) In this last case Judge Bronson says, at the conclusion of his opinion: “ These proceedings must be carefully watched, or they will be turned into the means of working injustice and oppression.”

Again: I think the affidavit of the service of the summons was defective. The affidavit states that the service was made on Roberts by leaving a true copy of the same with a person who said he belonged there, at Ms last or usual place of residence, with a person of mature age, who, at the time of the said service, was on said premises and resided thereon, said tenant being then absent from his last or usual place of business.” I have more doubt on this point, but upon the whole, I do not think it would be safe to hold that the affidavit shows that the copy was left with a person of mature age at the last or usual place of residence of Roberts. (See Cameron v. McDonald, 1 Hill, 512.)

I think the summary proceedings should be reversed.

It not appearing, from the return, that Roberts held for any particular term, or that his term has expired, I think restitution should also be awarded to the relator with costs.

Leonard, J. concurred.

Geo. G-. Barnard, J. I think the landlord’s affidavit insufficient. On this ground' I concur.

Proceedings reversed.

Leonard, Geo. G. Barnard, and Sutherland Justices.]