FUCHS v. COHEN

FUCHS v. COHEN. N. Y. Common Pleas, General Term; June, 1892. 1. Statutes ; interpretation?, The Statute of Forcible Entry and Detainer being in derogation of the common law, and authorizing a process by which one may be summarily divested of his right, is to be strictly construed, and the proceeding rigidly restrained within its prescribed limits, 2. Summary proceedings to recover land; petition.\ In summary proceedings to recover the possession of real property on the ground of forcible entry and detainer, the petition contained no other description of petitioner’s interest than a bare allegation that petitioner “ is the tenant of the premises pursuant to an agreement with the landlord.” Held, that under Code Civ. Pro., § 2235—providing that in such proceedings a petition must be presented “ describing the premises and the interest of petitioner,”—the petition did not give jurisdiction because it did not disclose the nature of petitioner’s right to possession and how and from whom it was acquired. Appeal from a final order of the N. Y. District Court for the Fifth Judicial District in favor' of petitioner in summary proceedings to remove persons who had made forcible entry and held the possession of premises that had been occupied by petitioner. The proceedings were brought by Julia Fuchs against Morris W. Cohen and others to recover possession of a :shop from which the petitioner claimed that she had been forcibly ejected. It appeared that Michael Fuchs, the husband of petitioner, carried on a lager beer saloon in the shop in question and had given a chattel mortgage on the fixtures of the saloon and on the leasehold interest and right of possession to the premises owned or claimed by him. Fuchs defaulted in the payment of the mortgage, and the alleged ■forcible entry was made on defendants foreclosing the mortgage by taking possession of the shop. The only allegation in the petition of Fuchs’s wife as ■to her interest in the premises was as follows: “ The petition of Julia Fuchs of said city respectfully shows: * That the tenant of the premises hereinafter mentioned in pursuance of an agreement made with the landlord thereof.’ ” The District Court made a final order in the petitioner’s favor, and defendants appeal to this court. Andrew Blake, for appellants. S. Feuchtwanger, for respondent. Code Civ. Pro. § 2233. This is in harmony with the principles applied under section 1542 as to a complaint in partition. See Townsend v. Bogert, 126 N. Y. 370 ; Wainman v. Hampton, 110 Id. 429. [MAJORITY — PRYOR, J.] PRYOR, J. Upon an attentive examination of the evidence in this proceeding, the conclusion is irresistible that, not the petitioner, but her husband, was the person whose possession was invaded ; and that the invasion complained of was not characterized by the violence and terror essential in the legal definition of a forcible entry. The petitioner’s claim of tenancy was obviously a mere pretense; and the respondent’s conduct in foreclosing the mortgage, if rough and resolute, still lacked the element of threat and force necessary to constitute the grievance remediable by the proceeding. We are of opinion that, upon both points, the verdict of the jury is clearly against the evidence. If otherwise, however, still the return discloses a vice in the proceeding which is fatal to its validity. The statute of Forcible Entry and Detainer being in derogation of the common law, and authorizing a process by which one may be summarily divested of his-right, is to be strictly construed, and the proceeding, rigidly restrained within its prescribed limits (Bloom v. Burdick, 1 Hill, 131; Schnieder v. Leizman, 57 Hun, 561, 562). The statute requires that in forcible entry and detainer the applicant must present to the justice “a written petition, describing the premises and the interest therein of the petitioner” (Code, § 2235). . . “which means a description of the particular title, estate or 'interest under which the petitioner claims ” (Schnieder v. Liezman, 57 Hun, 561, 562). Here, the petition recites merely that the applicant “ is the tenant of the premises pursuant to an agreement with the landlord.” Tenant simpliciter is “ one who holds or possesses lands or tenements by a kind of title ” (McAdam, 45). Whether the applicant was tenant for years, or from year to year, or from month to month, or at will, or at sufferance, is not indicated by the petition; wherein, therefore, “ is not a description of the interest of the petitioner, but, at most, an allegation that she had some interest which entitled her to the possession ”• (Schnieder v. Leizman, 57 Hun, 562). An allegation of interest is not equivalent to a description of the interest. The complainant should disclose in his petition the nature of his right to the possession and how and from whom it was acquired, and an allegation as to his rights without facts to sustain it, is a legal conclusion (People v. Field, 52 Barb. 198). A technical objection suffices to defeat the proceeding (People v. Smith, 24 Barb. 16 ; People v. Whitney, 1 T. & C. 533). The defect in the description of petitioner’s interest in the premises deprived the court of jurisdiction (Schnieder v. Leizman, supra). Bookstaver, P. J., and Bischoff, J., concurred. Judgment reversed, and proceeding dismissed, with costs.