Phelps v. Mallory

72 Misc. 74, 129 N.Y.S. 397

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1911
• Status: Published

Opinion

Per Curiam.

The plaintiff sued for the rent of certain premises which he averred in the complaint he had leased to defendant. ■ The defendant answered by claiming that a person other than the plaintiff was the owner of the demised premises and that the defendant had, prior to the time the alleged rent became due, been evicted from said premises by said owner who had a title to the premises paramount to that of the plaintiff.

The defendant, claiming that ‘by his answer he had put in issue the title to land within the provisions of section 179 of the Municipal Court Act, filed a bond under the provisions of section 180 of said act and procured a judgment discontinuing the action.

The pleading did not put in issue the title to real property in the sense contemplated by section 179, supra. The alleged owner is not a party to this action, and a judgment herein in favor of either party can in no way affect the rights of such alleged owner. Heiferman v. Scholder, 134 App. Div. 579; Trevett v. Barnes, 110 N. Y. 500.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Present: Seabury, Guy and Bijur, JJ.

Judgment reversed and new trial ordered.