People ex rel. Wyman v. Johnson

Mullin, P. J.

Section 29 of the statute relating to summary proceedings to recover the possession of land, 3 R. S. 836 (5th ed.), provides that any landlord or lessor, his legal representatives, agents or assigns, may make oath in writing of the facts which, according to the preceding section, authorize the removal of a tenant. The affidavit made by Charles T. Johnson does not disclose that he stands in any relation to the landlord as agent or otherwise. The fact of agency, if the agent makes the affidavit, must be stated affirmatively in it, it is not enough to state it by way of recital. Cunningham v. Goelet, 4 Den. 71.

In that case the fact of agency was recited. The court reversed the proceedings, on the ground that the appellant did not swear that he was agent of the landlord. Ex parte Bank of Monroe, 7 Hill, 178; Kx parte Aldrich, 1 Den. 662.

The case of Cunningham v. Goelet, supra, decides that an appearance by a party for the sole purpose of objecting to the jurisdiction of the officer or the regularity of the proceedings does not waive the defects in the proceedings preliminary to such appearance.

Without considering the other objections raised by the relator’s counsel the proceedings must be reversed for the defect in the affidavit.

Proceedings reversed.