Dickinson v. Brown

Truax, J. This is a summary proceeding instituted to obtain possession of certain premises occupied by the defendant. Issue was joined by verified petition and verified answer and, at the close of the case, "the tenant’s attorney moved for a dismissal of the proceedings, which was granted. Upon the petition was indorsed “ Motion to dismiss petition granted, Judgment for Tenant.” The return also recites that “ the proceeding here closed and the Justice thereupon, to wit, on the '14th day of March 1906 rendered judgment in favor of the tenant on motion to dismiss and against the landlord.” The notice of appeal is from a “Judgment in favor of the above named tenant, etc.” Jurisdiction is conferred upon Municipal Courts to entertain summary proceedings by subdivision 12 of section 1 of the Municipal Court Act, which provides that such proceedings shall be instituted under “ Title 2 of Chapter 17 of the Code of Civil Procedure,” which begins with section 2231 and ends with section 2265, inclusive. Section 2249 of that chapter provides for the final determination, of a summary proceeding by a final order, and section 2260 provides for an appeal from such an order. The record in this case contains no such order, nor does it appear therein that any such order was ever made. The appeal was, therefore, prematurely taken and must be dismissed. See Lewis v. Hoffman, 5 Civ. Pro. 141; Wulff v. Cilento, 28 Misc. Rep. 551. Appeal dismissed, with costs, and ease remitted to the lower court for such further action as counsel may advise. Scott and Bischoff, JJ., concur. Appeal dismissed, with costs, and case remitted to lower court.