Crane v. Van Derveer

Merwin, J.: By section 2235 of the Code.of Civil Procedure the appellant, at the commencement of the proceeding, was required to present to the judge or justice a written petition, which, among other things, should describe the interest of the petitioner in the premises of which the possession Was claimed. In the petition, as presented, it was alleged by the petitioner “ that she owns and was in the peaceable possession, and of right, at all times herein set forth, was and is entitled to the uninterrupted use, occupation and possession ” of the premises. There was no other description of her interest. It may be that the statement that “she owns” the premises is not sufficiently definite to answer the requirement of the statute if the objection is taken in time.' The precept was issued by the justice on May 2,1899, returnable May 8, 1899. On the return day the defendant appeared by attorney and filed a' verified answer, and called for a jury trial. The panel was named, and thereupon, on the application of the defendant and the consent of the plaintiff, the case was adjourned to May 10, 1899. Upon the adjourned day both parties appeared in person and by attorney, and the defendant then objected to all previous proceedings and to any further proceedings, on the ground that the petition failed to describe the interest of the petitioner in the premises as required by section 2235 of the Code, and that the proceedings were void, and the court had not acquired jurisdiction of the subject-matter. The query is whether the objection was not waived by the general appearance and answer and subsequent .proceedings before the question was raised. The extent of the ownership of the plaintiff was not an issue at the trial, except so far as involved in the fact of actual peaceable possession. (Code, § 2245 ; Lowman v. Sprague, 73 Hun, 408.) The plaintiff was bound to allege and prove that she was peaceably in actual possession of the property at the time of the forcible entry by the defendant. “ A party in the peaceable and actual possession of lands at the time of the forcible entry * * * is entitled to proceed under the statute of forcible entries and detainers, although [141] he is neither seised of a freehold nor possessed of a term for years in the premises.” (People v. Carter, 29 Barb. 208.) We are of the opinion that the defect, if there was one, was waived. The issues of-fact were disposed of by the jury adversely to the defendant, and no sufficient reason is apparent for disturbing their verdict. All concurred, except Putnam, J.,. not voting. Judgment and order of the County Court reversed, with costs, and the order or judgment of the justice affirmed, with costs, and restitution awarded.