Ross v. New York City Baptist Mission Society

Appellate Terms of the Supreme Court of New York

Ross v. New York City Baptist Mission Society

23 Misc. 683, 52 N.Y.S. 303

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1898

StatusPublished

Cited by4 cases

This text of 23 Misc. 683 (Ross v. New York City Baptist Mission Society) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ross v. New York City Baptist Mission Society, 23 Misc. 683, 52 N.Y.S. 303 (N.Y. Ct. App. 1898).

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Opinion

Giegerich, J.

In view of the conclusion reached in Potter v. New York City Baptist - Mission Society,- ante p. 6Í1, it is manifest .that the allegations of. the petition herein touching the interest of the applicant ¡in the premises were wholly insufficient to confer jurisdiction of the subject-matter.'

The averment contained in the petition that the applicant is “ a lessee of the premises * ■ * * under an agreement made between her and the trustees 'of the said Tabernacle Baptist Ohurch by the (terms of which agreement your petitioner duly leased from the said Tabernacle Baptist Church the aforesaid premises, and by virtue Of such agreement became tentitied to and,went into the possession tof said" premises ” is not a compliance with the provisions of section 2235 of the Code of Civil Procedure which require the applicant to present to the justice “ a written petition * * * - describing the premises * * * and the interest therein of the petitioner.”

As was said by Pryor, J., in Fuchs v. Cohen, 19 N. Y. Supp. 236, “whether the applicant was tenant for years or from year to year, or from month to month, or at will, or at sufferance, is not indicated by the petition; wherein, therefore, ‘is not a description of ¡the interest of the petitioner, but, at most, an allegation that she had some interest which entitled h'er to the possession.’ Schneider v. Leitznian, 11 N. Y. Supp. 434. An allegation is not equivalent to a description of the interest.”

The respondent insists that notwithstanding such defect, thie .court b'elow acquired jurisdiction by reason of' the general appearance nf the defendants, and their pleading to the. merits, before raising [685]*685the objection to the jurisdiction of the court. Had the court below acquired jurisdiction of the subject-matter, there might be some force to this contention, but, as it had not, the objection was not waived, and the defendants were not precluded from raising it. Potter v. N. Y. City Baptist Mission Society, supra.

For these reasons the final order should be reversed, with costs to the appellants. "

Beekman, P. J., and Gildersleeve, J., concur.

Final order reversed, with costs to -appellants.

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Giegerich, J.

In view of the conclusion reached in Potter v. New York City Baptist - Mission Society,- ante p. 6Í1, it is manifest .that the allegations of. the petition herein touching the interest of the applicant ¡in the premises were wholly insufficient to confer jurisdiction of the subject-matter.'

The averment contained in the petition that the applicant is “ a lessee of the premises * ■ * * under an agreement made between her and the trustees 'of the said Tabernacle Baptist Ohurch by the (terms of which agreement your petitioner duly leased from the said Tabernacle Baptist Church the aforesaid premises, and by virtue Of such agreement became tentitied to and,went into the possession tof said" premises ” is not a compliance with the provisions of section 2235 of the Code of Civil Procedure which require the applicant to present to the justice “ a written petition * * * - describing the premises * * * and the interest therein of the petitioner.”

As was said by Pryor, J., in Fuchs v. Cohen, 19 N. Y. Supp. 236, “whether the applicant was tenant for years or from year to year, or from month to month, or at will, or at sufferance, is not indicated by the petition; wherein, therefore, ‘is not a description of ¡the interest of the petitioner, but, at most, an allegation that she had some interest which entitled h'er to the possession.’ Schneider v. Leitznian, 11 N. Y. Supp. 434. An allegation is not equivalent to a description of the interest.”

The respondent insists that notwithstanding such defect, thie .court b'elow acquired jurisdiction by reason of' the general appearance nf the defendants, and their pleading to the. merits, before raising [685]*685the objection to the jurisdiction of the court. Had the court below acquired jurisdiction of the subject-matter, there might be some force to this contention, but, as it had not, the objection was not waived, and the defendants were not precluded from raising it. Potter v. N. Y. City Baptist Mission Society, supra.

For these reasons the final order should be reversed, with costs to the appellants. "

Beekman, P. J., and Gildersleeve, J., concur.

Final order reversed, with costs to -appellants.

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