Shotland v. Mulligan

Appellate Terms of the Supreme Court of New York

Shotland v. Mulligan

121 N.Y.S. 298

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 18, 1910

StatusPublished

This text of 121 N.Y.S. 298 (Shotland v. Mulligan) 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.

Bluebook

Shotland v. Mulligan, 121 N.Y.S. 298 (N.Y. Ct. App. 1910).

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Opinion

SEABURY, J.

This proceeding was brought to dispossess the tenant from real estate after default in the payment of rent. A final order has been entered in favor of the tenant, and the landlord appeals.

There is in the record no evidence of any demand of the rent, or that three days’ notice, requiring in the alternative the payment of the rent or the possession of «the premises, was served. Under the statute, evidence of this character is necessary to confer jurisdiction upon the justice to entertain this proceeding. Code Civ. Proc. §§ 2231, 2240; Beach v. McGovern, 41 App. Div. 381, 58 N. Y. Supp. 493; Tolman v. Heading, 11 App. Div. 264, 42 N. Y. Supp. 217; Zinsser v. Herman, 23 Misc. Rep. 645, 52 N. Y. Supp. 107. In the absence of such evidence, the justice before whom the proceeding was tried properly entered an order dismissing the petition.

The order appealed from is incorrect, in so far as it assumes to dismiss the petition “upon the merits.”

Order modified, by striking out the words “upon the merits,” and inserting the words “without prejudice to a new proceeding,” and, as modified, affirmed, with costs. All concur.

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SEABURY, J.

This proceeding was brought to dispossess the tenant from real estate after default in the payment of rent. A final order has been entered in favor of the tenant, and the landlord appeals.

There is in the record no evidence of any demand of the rent, or that three days’ notice, requiring in the alternative the payment of the rent or the possession of «the premises, was served. Under the statute, evidence of this character is necessary to confer jurisdiction upon the justice to entertain this proceeding. Code Civ. Proc. §§ 2231, 2240; Beach v. McGovern, 41 App. Div. 381, 58 N. Y. Supp. 493; Tolman v. Heading, 11 App. Div. 264, 42 N. Y. Supp. 217; Zinsser v. Herman, 23 Misc. Rep. 645, 52 N. Y. Supp. 107. In the absence of such evidence, the justice before whom the proceeding was tried properly entered an order dismissing the petition.

The order appealed from is incorrect, in so far as it assumes to dismiss the petition “upon the merits.”

Order modified, by striking out the words “upon the merits,” and inserting the words “without prejudice to a new proceeding,” and, as modified, affirmed, with costs. All concur.

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Bluebook (online)

121 N.Y.S. 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shotland-v-mulligan-nyappterm-1910.

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