Smith v. Huestis

1 Hill & Den. 236

• Court: New York Supreme Court
• Decided: July 1, 1843
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The affidavit, upon which all the proceedings under the statute are founded for the purpose of removing a tenant in default by holding over, &c., was clearly defective in this instance, in not showing with reasonable certainty that the tenant was in possession of the premises. It merely sets forth the demise to Huestis and that he, or his undertenants, hold over and continue in possession, thus leaving it altogether equivocal, which.

White and Arcularius appeared and resisted the proceedings ; and, therefore, waived the defect as it respects themselves; but, as the- adjudication in the matter is entire against all, I do not see how we can avoid reversing it, as to all three. (Richards v. Walton, 12 Johns., 434, and cases cited.)

The case of Richards v. Walton was an action of trespass against two for cutting timber, and the entire judgment reversed for error committed—as respected one of the defendants—the return to the certiorari showing that but one of them appeared in the suit.

Proceedings reversed.