Haims v. Rehm ( 1910 )

GUY, J.

The petition of the landlord herein avers that the defendant leased the premises in question on October 15, 1909, promising to pay the sum of $40 per month in advance on the 15th day of each month, and that there was one month’s rent due from April 15, 1910, to May 15, 1910.. The petition was verified and the precept issued and served on April 15, 1910.

At the close of the testimony given on behalf of the landlord, the tenant moved to dismiss the proceeding upon the ground that the agency of the person verifying the petition had not been shown and that the proceedings could not be legally instituted prior to April 16, 1910. McDonald v. Ruggiero, 136 App. Div. 699, 121 N. Y. Supp. 417. The court below thereupon dismissed the petition upon the merits. This was error. The most that can be said is that there was a failure of proof, or that the proceedings were prematurely brought, and therefore should not have been dismissed upon the merits.

Order modified, by striking therefrom the words "on the merits,” and, as modified, affirmed, with costs to the appellant. All concur.