Charles A. Peabody and Others, Respondents, v. The Long Acre Square Building Company, Appellant

Charles A. Peabody and Others, Respondents, v. The Long Acre Square Building Company, Appellant. First Department, April 6, 1906. Landlord and tenant — summary proceedings -r- when petition sufficiently alleges service of notice—■ failure to object to jurisdiction of court — ’ sufficient evidence of service on corporation —? when ho right of redemp-. tion on failure to pay taxes. A petition in summary proceedings to dispossess a tenant for non-payment of rent and taxes, which states that the -three days’ notice requiring payment or possession of the premises was served on the tenant (a corporation)- by delivering and leaving with the treasurer of the defendant a true copy of the notice, and having annexed a certificate of the process server stating that the original ■ notice was shown at the time of service, is sufficient to. confer jurisdiction on , the court-. Even if defective in not alleging that the original notice was shown when service was made, the defect is waived when the tenant answers and proceeds to trial without objection, if the court have jurisdiction of such proceeding. ■ Wlien the treasurer pf the defendant corporation has testified on trial that the three days’ notice and demand wast served upon him,, it is sufficient as art admission that the. service was properly and duly- made, even though the process server was not called to- testify,.¿specially so when no motion to dismiss on that ground was.made at trial. As a tenant dispossessed for non-payment of taxes has no right of .redemption, a final order of dispossession should issue when the proof shows that the taxes were.not paid, until the second day of the trial. Such order must determine the rights'of the landlord as existing atitlie time of issue joined.. O’Bribn, P. J., dissented. Appeal by the defendant',. The Long Acre Square Building Company, from an order of the Appellate Term affirming a final order iii summary proceedings. The respondents instituted a summary proceeding -to recover from the appellant the possession of real property, under the provisions of the Code of Civil Procedure (§ 2231 et seq.) relating to that subject. A petition was presented to a Municipal Court of the city of -New York in which was. set forth,, among-other things, that. “ the trustees of Henry Astorl’ were the' landlords of the premises described therein and which-by-an. agreement in writing and on or, about' the 13th of October, 1902, they leased to one Milton L. Bouden,. as tenant, for a term of twenty years from the 1st day of Hovember, 1902, and that by the terms of the agreement Bouden undertook and promised to pay to the landlords as rent the sum of $15,200 per annum until the 1st of May, 1913, and thereafter and during the • remainder of the term the sum of $16,340 per annum, payable in equal quarter-yearly payments on the first days of February, May, August and H ovember in each and every year of the term; and also to pay all and every assessment or assessments, tax and taxes whatsoever as well extraordinary as ordinary which may be assessed, levied or imposed upon the premises or any part thereof; that thereafter and on or about the 5th of M&y, 1903, Bouden assigned the lease to the Long Acre Square Building Company, a domestic corporation, which became-and was at the time of the presentation of the petition the tenant of the premises and had entered into possession and occupied the same under the terms and conditions, of the agreement and as such tenant it duly attorned to the landlords; that on the 1st of May, 1904, there was due to the landlords under and by virtue of the indenture of lease the sum of $3,800, being the rent from the 1st of February, 1904, to the 1st of May, 1904, and there also remained due and unpaid for more than sixty days after the Same became due and payable the sum of $692.69 taxes for the year 1903, which had been duly imposed upon a portion of the premises. In the petition it is then set forth that at least three days’ notice in writing requiring in the alternative the payment of said rent or the possession of the said premises had been served on behalf of the landlords upon the Long Acre Square Building ‘Company, and that at least three days’ notice in writing requiring in the alternative the payment of the tax or possession of the premises had also' been served by the landlords upon the Long Acre Square Building Company, and that such service was made upon that company on the 12th day of May, 1904, at three-fifteen o’clock p. at., by delivering to and leaving with Henry M. Work, its treasurer, personally a true copy of such notice; that said notice in writing was annexed to the petition together with due proof of its service with the certificate of the city marshal serving same, which annexed notice and due proof of service was made a part of the petition. It is also set forth that default was made in the payment of the rent and taxes pursuant to the agreement under which the said premises were, held, and that the Long Acre Square Building Company held over and continued in the possession of the premises without the permission of the said landlords, after default in the payment of the rent, and taxes as aforesaid. Thereupon a final order to remove the tenant (and a mortgagee, who was made a party) from the possession of the premises was prayed for. The notice in writing annexed to the petition and made part thereof is in due- form. It contains a full description of the premises and states that there is justly due to the landlords the sum of $3,800 for one quarter’s rent for the quarter ending May 1, 1904, of the premises described and that there is due and remaining unpaid for a period of- sixty days since the 'same became due and payable the sum of $692.69 for taxes for the year 1903, imposed upon a portion of the aforesaid premises; “ all of which' you are required to pay 'on or before the expiration of three days from the day of service of this notice, or surrender the possession of the said premises' to the landlords, in default- of which the’ landlordsx shall proceed under the statute to recover the possession thereof” On this notice there is indorsed a certificate of service of C. A. Farley, city marshal, borough of Manhattan, stating that on the 12th of May, 1904, at three o’clock and fifteen minutes in the afternoon, he served the notice on the Long Acre Square Building Company by delivering to and leaving with Henry M. Work, the treasurer of the said corporation, personally, a true copy thereof, at the same time showing him the original; that such service was made at Ho. 71 Broadway, in the borough of Manhattan, and that the marshal knew the person so served to be Henry M. Work, and knew him to be the treasurer of the Long Acre Square Building Company, the tenant mentioned and described in the notice. Upon the petition, a justice of the Municipal Court issued a precept to the Long Acre Square Building Company (and to the mortgagee) by which they were required forthwith to remove from the premises designated and described,-being the same premises mentioned in the petition, or show cause before such court on the 25th day of May, 1904, why possession of the premises should not be awarded and delivered to the landlords or the petitioner. The precept was served on the . twentieth of May on Henry M. Work, treasurer of the building company. On the return day an answer was interposed by Joseph J. Corwin, the president of the Long Acre Square Building Company, which he describes as “ his answer ” to the petition, in which the allegations of the petition to the effect that the Long Acre Square Building Company vras the tenant and in possession of the premises described therein, and that Charles A. Peabody and the trustees of the Astor estate are landlords are admitted; and then he proceeds to state that he “has no knowledge or information sufficient to form a belief as to the rest of the allegations contained therein, and, therefore, denies the same.” The proceeding came on for trial at the Municipal Court before a justice without a jury on the 1st day of June, 1904. Proof was given of the non-payment of rent and of the non-payment of taxes on a portion of• the premises for the year . 1903. The trial was continued on the second day of June, when the landlords called asa witness Henry M. Work, the treasurer of the Long Acre Square Building Company. He testified as follows : “ I know that the tenant was served with the three days’ notice and demand to pay the taxes and rent or move ; that was on the 12th of May; that was served upon -myself. I am the treasurer of the company; the■ company has not paid the rent; it has not paid the taxes.” On cross-examination he stated that he could not say that the taxes for 1903 on a portion of the premises had not been 'paid, but that they had not been paid by him, and he did not know whether any one else for the corporation had paid them; ,but that he was the officer who would pay bills of taxes and pay the rent for the company. The Long Acre Square Building Cqmpany then called as a witness on its behalf the attorney for the company who represented it in that proceeding. He testified that on the thirty-first of May (which was after the proceeding was instituted and after issue joined) at the request of Joseph J. Corwin, president of the Long Acre Square Building Company, he paid taxes amounting to $732.32 on the premises in question, which amount included the taxes mentioned in the petition, and he also paid the water arrears, amounting to $8.97. The bill for taxes was offered in evidence. A check was produced which the witness testified had been paid subsequent to the 31st of May, 1904. The landlords’ counsel objected to the tax bill and receipt being received in evidence, but the court admitted them. The tenant rested its case upon that proof, whereupon its counsel moved to dismiss the proceeding, which motion was denied, and the court directed that a warrant should issue removing the tenant from the premises for the non-payment of rent and also for the non-payment of taxes. The justice indorsed on the precept the following: “ Final order is hereby-made the 2nd day Of June, 1904, in favor of said landlords awarding to said landlords the delivery of the premises within described by reason of the tenant’s, non-payinent .of said rent and said taxes, together with costs.’’ From this final order the tenant appealed to the Appellate Term,of the Supreme Court, - where the order was affirmed by a divided court (47 Mise. Bep. 629; 94 if. T. Supp. 507). By permission, a further appeal was taken to this court. The order appealed from is assailed on three grounds: First, that no jurisdiction was conferred upon the Munich pal Court because of insufficiency of the petition in that such petition does not contain an allegation of proper service of the notice requiring the payment of rent and taxes ór, the surrender of the . premises.. Second, that there was a defect in the proof Of service, it not having • been shown that the original notice was' exhibited, at the time of the alleged service thereof. Third, that the final order ■ was unauthorized, because it 'appeared on the trial that the taxes for the year 19Ó3 had been paid .and that, therefore, the tenant could not be dispossessed for their non-payment, Warren Leslie, for the appellant. William G. Choate, for the respondents. [MAJORITY — Patterson, J.:] Patterson, J.: First. The allegations of the petition were sufficient to confer jurisdiction of the proceeding upon the 'Municipal Court. Mr. Peabody, the petitioner, states positively that three days’ notice in writing requiring in the alternative the payment of the rent or the , possession of the premises and the payment of the taxes or the . possession of the premises was served on behalf of the landlords. . upon the tenant, and that the service was made by delivering to and leaving with Henry M. Work, the treasurer of the company, personally, a true copy of the notice. He annexes to the petition a copy of the certificate of the person who served the notice in which it is stated that the original notice was shown to Work at the time-service was made. But even if the petition was defective, in not alleging that the original notice was shown when service was made that was cured by the answer- of the tenant. The trial proceeded without objection being taken to the jurisdiction. Objections to proceedings which are not connected with the matters in issue, but are preliminary and go only to the right and power of the court to hear the case, are technical and are deemed to have' been waived if the party proceeds to the trial or argument without raising them. (Cowenhoven v. Ball, 118 N. Y. 232.) This is not a. case where the court is without jurisdiction of the subject-matter of the proceeding. In such a case the objection to jurisdiction may be taken on appeal in the first instance or at any time. (Matter of Walker, 136 N. Y. 20.) Here the Municipal Court had jurisdiction of the subject-matter. The only doubt arising would be as to its acquiring jurisdiction of the person of the tenant by failure to exhibit the original notice, and that objection was waived. Showing the original notice is only an incident connected with the service of process issued to bring a party into court. Second. The contention that there was an insufficiency of proof because of the omission to show that the original notice was exhibited at the time of serving is not well founded. The Municipal Court, marshal was not called as a witness, but the treasurer of the tenant was put upon the stand and swore that the three days’ notice and demand “ to pay the rent and taxes or move ” was served upon him.. That is sufficient as an admission that the service was properly and duly made, and the fact of service being shown by this witness, it was unnecessary for the landlords to prove every detail of the method of the service. We fail to find in the record that a motion was made td dismiss the petition on the ground that service was not made according to the requirements of the statute. The motion actually made was that the petition be dismissed on the ground that no demand 'had been shown for the rent or for the taxes, and to meet that objection the witness Work was called, who gave the testimony above referred to. We think, under the circumstances, that the proof wa,s sufficient. Third. The final order is attacked because it is stated therein that it was issued for the non-payment of taxes as well as for the nonpayment of rent; that the taxes having been paid, there was no foundation for granting the final order because of their alleged nonpayment. The significance and importance of this contention reside in the fact that a tenant dispossessed for non-payment of taxes has no right of redemption under existing provisions of law (Witty v. Acton, 58 Hun, 552), whereas, if he were dispossessed only for the non-payment of rent, he may redeem under section 2256 of the Code of Civil Procedure, when - he is a lessee with an unexpired term of more than five years — as he is in the present case. The question arising on this contention relates to the substance of the final order as well as to its form. There can be no dispute but that at the time the petition was filed and at the time the answer was served and the proceeding went to issue, the taxes had not been paid. Her can it be disputed that upon the trial on the first day of June evidence was given on the part of the landlords. that the taxes had not been paid. On the second day of June, Work, the treasurer of the tenant, whose business it was to pay taxes' for the corporation, testified that the taxes had not been paid, and then that he had no knowledge whether they were paid or not; but on the same day the attorney for the tenant testified as a witness on its behalf that two days previously at the request of the president of the corporation he had paid by check the taxes upon the premises “ against which this proceeding was brought.” It is apparent, therefore, that if the taxes were paid, such payment was made after issue was joined and without the fact being set up in the answer or in any way communicated to the landlords. The justice "of the Municipal Court was authorized to try only the issues that were before him. Section 2247 of the Code of Civil Procedure directs that the issues joined by the petition and answer must be tried by the judge or justice. It is not urged that by the payment of the taxes a final order of dispossession was arrested. That final order must necessarily relate to the right of the landlords as claimed at the time issue .is joined, and thó reasons for granting it are necessarily those which existed at the time the landlords’ right to repossession acqrued. We are not now dealing with the question of the enforcement of the order by staying the issuance of a warrant. The party against whom a final order is madé may stay such issuance by complying with the provisions of section 2254 of the Code of Civil Procedure; that is to .say, he must pay or secure all the rent, taxes, interest and costs. Had the tenant paid or offered to pay, before the final order was issued, all that was necessary to prevent the issuance of a warrant, that might have been sufficient under what was held in. Matter of Flewwellin v. Lent (91 App. Div. 430), but it did hot and thus the rights of the landlords to their full extent were left unimpaired. The determination óf the Appellate Term must be affirmed, with costs. Ingraham, Laughlin. and Clarke, JJ., concurred; O’Brien, P. J., dissented. Determination affirmed, with costs. Order'filed.