Opinion
December, 1906.
Esther Kunstler, for appellant.
Samuel Manheimer, for respondent.
Alleging that the defendant was indebted to him for a balance due for the rent of two stores and the basements underneath the same, the plaintiff instituted summary proceedings to recover possession of the premises. The case was tried on June 13, 1906, before a jury and a verdict rendered in favor of the tenant. On June 18, 1906, upon a motion made by the landlord, the verdict was set aside and a new trial ordered, the date for which was fixed at June 20, 1906. The defendant appeals from the order setting aside the verdict and also from what purports to be a final order made after an inquest taken on June 20, 1906. The setting aside of the verdict of the jury was fully warranted by the evidence given upon the trial. It appeared that the defendant had occupied the premises for three years prior to May 1, 1906; that he had paid twenty-nine dollars per month for the rent of each store and basement and sixteen dollars per month for living rooms over the stores. On May 1, 1906, the landlord raised the rent for the stores five dollars per month; and, the tenant refusing to pay the increased rent, proceedings were taken to dispossess him. The parties came to an understanding, however, by the terms of which the tenant paid for the month of May two dollars more rent on each store and continued to occupy the premises as formerly. It is the contention of the tenant that, at this time, he told the landlord that, after June first, he would have one store empty and would only want one store for the year. This agreement is denied by the landlord and, while there is some evidence that upon June first the tenant vacated one of the stores, it is undisputed that he continued to occupy the basement underneath the vacated store and was still in such occupancy at the time of the trial. There is no proof that the rental of the store alone above the basement was to be at any certain amount, and the basement and store were rented as one entire premises. The continued occupation by the tenant of a portion of the demised premises, therefore, made him liable for the full rental agreed to be paid, in the absence of any agreement that his ceasing to occupy the store above the basement should reduce the rent in some proportionate amount. The verdict of the jury was therefore against the evidence and was properly set aside. The record, however, fails to show that a valid final order was entered upon June 20, 1906, the time fixed by the order setting aside the verdict for the new trial. The record shows that the landlord appeared on June eleventh and that the tenant appeared and filed an answer and demanded a jury trial and the case was tried June thirteenth, the jury rendering a verdict for the tenant, which was set aside, and the case set down for retrial on June 20, 1906. So far the proceedings seem to be regular, but what happened on June twentieth does not appear. Attached to one of the pages of the return is a precept, blank upon its front page; but on the back appear the following words, so far as they are material: "The landlord appears on the 11th day of June, 1906, and demands rent or possession of the premises * * * The tenant appears. Inq. Final order is therefore made the 20th day of June, 1906, in favor of the landlord." This is signed by the justice. It nowhere appears that there was any appearance on the part of either party on June 20, 1906. There was a trial on June thirteenth, as before stated, and as to what occurred on June twentieth the record is barren of recital. So far as is shown by the return, neither party appeared in court on June twentieth; and, clearly, the justice had no right to enter a final order on June twentieth, simply because there was an appearance of the parties on June eleventh or a trial on June 13, 1906. The Municipal Court is of limited jurisdiction and jurisdiction must be made to appear, and no presumption can be invoked in their favor. Tyroler v. Gummersbach, 28 Misc. 151. Summary proceedings are also statutory and the statute must be strictly followed. Section 248 of the Municipal Court Act provides that the action must be dismissed without prejudice where the plaintiff fails to appear at the time specified in the summons or upon adjournment. The proceeding should have been dismissed for want of appearance and it must be so regarded by this court.
FITZGERALD and DAVIS, JJ., concur.
Appeal dismissed, without costs.