Wiggin v. Woodruff

16 Barb. 474, 1853 N.Y. App. Div. LEXIS 149

Opinion

By the Court, Edwards, J.

The statute of “ summary proceedings to recover the possession of lands,” provides that any tenant at will, or at sufferance, or for part of a year, or for one or more years, of any houses, lands, or tenements; and the assigns, under-tenants, or legal representatives of such tenant, or lessee, may be removed, &c. (2 R. S. 512, § 28.)

The affidavit which was presented to the recorder is uncertain, and contradictory. It does not distinctly show which of the persons proceeded against is the tenant, and which of them are under-tenants. The only fact which is unequivocally stated is, that the parties are in possession of the premises in some manner.

It should be distinctly alleged how they are in possession, in' order that the officer before whom the proceedings are had may judge whether they came within the statutory description.

As the affidavit in this respect is defective, I think that the recorder was right in dismissing the proceedings.

Judgment affirmed. .