Philip Realty and Construction Company, Respondent, v. Benjamin Chubin, Appellant

Philip Realty and Construction Company, Respondent, v. Benjamin Chubin, Appellant. Second Department, December 10, 1909. Landlord and tenant —summary proceedings — proving essential facts. Where a petition in summary proceedings alleges ownership of the premises and the making of a lease,-but the alleged tenant denies said allegations, the landlord must establish the facts alleged. Appeal by the defendant, Benjamin Chubin, a tenant, from a judgment of the Municipal Court in favor of the plaintiff, rendered on the 26th day of May, 1909, in summary proceedings. Bernard Fliashniek, for the appellant. M. Angelo FUas, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: The petition herein was made by one Lei'zerkowitz, claiming to be an authorized agent- of the Philip Realty and Construction Company, which was alleged to be the owner of the property ,and the. appéllant’s landlord, under a written agreement, by which . the appellant leased of said company on April 1, 1909^ the premises he^ was in possession of, and agreed to pay said company rent therefor of .fifteen dollars a. month in advance, and it is claimed that he was in default for the month of May. These allegations of the petition being denied, it was incumbent upon the company to establish them by evidence upon the trial before it was entitled to judgment. - No proof of ownership or of the making of' any lease with the appellant was made, and the refusal of the Municipal Court'justice to dismiss the petition upon appellantis motion when the respondent rested its case was error. The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event. Woodward, Jenks, Burr and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. ' ■