Carmer v. Rhodes

Kruse, J. (dissenting): I dissent. The plaintiff in this action was the defendant in the summary proceeding which he attacks. He appeared therein, filed an answer to the petition, contested the same and was beaten. The real controversy between the parties was whether the plaintiff’s term, which concededly expired on the 1st day of May, 1906, was extended for another year as claimed by the plaintiff, or whether he was holding over after the expiration of said 916 term. The plaintiff contended that a new lease was executed hy the agent of the owners, and proffered to him, which he did not execute; he claims, however, that the agent stated to him that if he remained in possession he would be deemed to have ratified the lease, and that ho did remain in possession and elected to ratify the same. That issue was tried and determined in the summary ■ proceeding adversely to the plaintiff, and thereupon the order was made and the warrant to dispossess the plaintiff was issued, the enforcement of which he now seeks to enjoin. If, in any vi'ew of the case, as disclosed by the complaint and the papers in this record, the plaintiff is entitled to such relief, manifestly the injunction order should be retained until the trial and determination of the issues in this action, but I fail to see how he can possibly succeed. Every question involving the merits could have been and was actually tried in the summary proceedings. Whatever redress the plaintiff has by way of reviewing the adjudication in the summary proceedings is limited to the appeal .which he has taken to the County Court, and which, so far as the record shows, still remains undetermined. . I do not think this action can be maintained. (Knox v. McDonald, 25 Hun, 268; Jessurun v. Mackie, 24 id. 624; Baptist Mission Society v. Potter, 20 Misc. Rep. 191.) The contention is also made by the plaintiff that the description, contained in the petition is insufficient. The petition is not contained in the record. The complaint itself describes the premises with sufficient definiteness and certainty, and alleges that a warrant was issued directing the constable to remove the tenant therefrom. 'While it is stated in the complaint that the plaintiff objected upon the ground that the justice did not have jurisdiction, for the reason that the petition did not properly describe the premises, it fails .to show that the description was actually deficient, and beyond.that the summary proceeding was tried on the merits. I think the order sustaining the preliminary injunction should be reversed and the. injunction order vacated and set aside. Spring, J., concurred.-