Opinion
December 20, 1956
Appeal by the tenant from a final order in a summary proceeding granted by the County Court of Greene County. This summary proceeding was brought to recover possession of demised premises, under the purported authority of subdivision 3 of section 1410 of the Civil Practice Act, upon the ground that the tenant had failed to pay the taxes upon the premises as he was required to do by the terms of the lease. The property was located in the village of Tannersville. A tenant may not be removed from village property upon the ground of nonpayment of taxes. Subdivision 3 of section 1410 by its terms applies only to city property. In the absence of a provision in the lease expressly making unpaid taxes a part of the rent of the premises, taxes may not be treated as part of the rent for the purpose of maintaining a summary proceeding under subdivision 2 of section 1410 ( Bien v. Bixby, 18 Misc. 415; Bixby v. Casino Co., 14 Misc. 346; People ex rel. Wilson v. Swayze, 15 Abb. Prac. 432; Witty v. Acton, 58 Hun 552; 3 New York Law of Landlord Tenant, § 1150, 2 Rasch on Landlord Tenant Summary Proceedings, § 1111). The tenant did not raise this objection in the County Court but, since the point is a jurisdictional one, it may be raised upon appeal for the first time. Order appealed from reversed and the proceeding dismissed, without costs. Foster, P.J., Bergan, Coon, Halpern and Gibson, JJ., concur.