Miressi v. Funicello

In a summary proceeding to recover possession of real property, the final order of the City Court of New Rochelle awards possession to the landlord. On appeal, the said order was affirmed by the County Court, Westchester County. Order of the County Court, Westchester County, modified on the law by striking out everything following the words “ be and the same is ” and in place thereof inserting a provision denying the tenants’ motion for summary judgment. As thus modified, the order is unanimously affirmed, without costs. Material allegations of the petition having been denied by the tenants’ answer, it was incumbent upon the landlord to establish them by evidence upon a trial 932 before being entitled to a final order. (Philip Realty é Constr. Co. v. Chubin, 135 App. Div. 766; Civ. Prae. Act, § 1428.) It has been correctly held that the first and third separate defenses set forth in the tenants’ answer are insufficient in law. The matters raised by the second separate defense can be proved under the denial of the allegation of good faith. Adel, Wenzel and MacCrate, JJ., concur; Carswell, Acting P. J., and Johnston, J., concur on the further ground that rule 113 of the Rules of Civil Practice does not apply to summary proceedings. (905 West End Ave. Corp. v. Peers, 118 Misc. 754.)