ROSS v. NEW YORK CITY BAP. MISSION SOC

Full title: JULIA ROSS, Respondent, v . THE NEW YORK CITY BAPTIST MISSION SOCIETY et…

Court: Supreme Court, Appellate Term

Date published: Jun 1, 1898

23 Misc. 683 (N.Y. App. Term 1898)

52 N.Y.S. 303

Opinion

June, 1898.

John E. Parsons, for appellants.

Benjamin Scharps, for respondent.

GIEGERICH, J.

In view of the conclusion reached in Potter v. New York City Baptist Mission Society, ante p. 671, it is manifest that the allegations of the petition herein touching the interest of the applicant in the premises were wholly insufficient to confer jurisdiction of the subject-matter.

The averment contained in the petition that the applicant is "a lessee of the premises * * * under an agreement made between her and the trustees of the said Tabernacle Baptist Church by the terms of which agreement your petitioner duly leased from the said Tabernacle Baptist Church the aforesaid premises, and by virtue of such agreement became entitled to and went into the possession of said premises" is not a compliance with the provisions of section 2235 of the Code of Civil Procedure which require the applicant to present to the justice "a written petition * * * describing the premises * * * and the interest therein of the petitioner."

As was said by Pryor, J., in Fuchs v. Cohen, 19 N.Y.S. 236, "whether the applicant was tenant for years or from year to year, or from month to month, or at will, or at sufferance, is not indicated by the petition; wherein, therefore, 'is not a description of the interest of the petitioner, but, at most, an allegation that she had some interest which entitled her to the possession.' Schneider v. Leitzman, 11 N.Y.S. 434. An allegation is not equivalent to a description of the interest."

The respondent insists that notwithstanding such defect, the court below acquired jurisdiction by reason of the general appearance of the defendants, and their pleading to the merits, before raising the objection to the jurisdiction of the court. Had the court below acquired jurisdiction of the subject-matter, there might be some force to this contention, but, as it had not, the objection was not waived, and the defendants were not precluded from raising it. Potter v. N.Y. City Baptist Mission Society, supra.

For these reasons the final order should be reversed, with costs to the appellants.

BEEKMAN, P.J., and GILDERSLEEVE, J., concur.

Final order reversed, with costs to appellants.