In re Cary , 56 N.Y.S. 6 ( 1899 )

Hardin, P. J.:

Navagh answered in writing, and set up that he xvas rightfully in possession as tenant of Hard, and had been for more than six years. He denied that he held over after the expiration of his term, and he denied that the petitioner “ is his landlord of said premises or any thereof.” He alleged no notice to redeem said premises xvas ever served on him, and he denied that the petitioner is the owner in fee or entitled to possession of said premises. He alleged that no notice to redeem said premises xvas ever served on Hard. He averred that the descrmtion in the rolls, advertisement of sale, certificate of sale and in the deed is insufficient and defective. On J une fifth the counsel moved to dismiss the proceedings for the insufficiency of the petition. That motion was denied. On July second, on application of Navagh and Hard, the latter was alloxved to file an answer. This xvas allowed under section 2244 of the Code of Civil Procedure, which provides that any person in possession, or claiming possession, may file an answer “denying generally the allegations, ■or specifically any material allegation of the petition, or setting forth a statement of any nexv matter constituting a legal or equitable defense or counterclaim. Such defense or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding xvas the subject of an .action.” Under the answer thus alloxved, the defendant gave evidence showing that no notice to redeem had been given to Navagh or to Hard, according to the provisions of the Tax Laxv passed in 1880, for the city of Buffalo. The 7th section of chapter 275 of the Laxvs of 1880 provides that an ■owner may redeem from a tax sale at anytime within txvo years after the date of such sale. It further provides: “Notice shall be given by the purchaser of any real estate sold for taxes under the. provisions of this act to the occupant, oxvner in fee, * * * at least three months before the expiration of the time for redemption fixed by this act, and the time for such redemption shall not be deemed to have expired until three months after such notice shall have been given.” The section provides hoxv the notice shall be given, and, among other things, that if any of the parties do not reside in the city, or have a place of business in the city, “ then such notice shall be deposited, postage paid, in the post office, addressed to them at the post office at or nearest to their known place of residence.” No such service xvas made upon Hard, the oxvner. Nor xvas any notice served upon Navagh, the tenant. The 6th section of the act of 1880 authorizes proceedings to be taken to obtain summary ossession of premises by the purchaser, or is heirs or assigns, “at any time after the time limited in the seventh section of this act for the redemption of such premises shall have expired and the notice therein provided for been given, and said premises shall not have been redeemed as therein provided, and not before, obtain actual possession of the premises by an action at laxv, or by causing the occupant of such real estate to be removed therefrom and the possession thereof to be delivered to him in the same manner and by the same proceedings by and before the same officers as in the case of a tenant holding over after the expiration of his term without permission of his landlord.” These proceedings were prematurely instituted. (2) The petition is barren of facts; it does not state facts sufficient to confer jurisdiction upon the officer to xvhom it xvas presented. If the petitioner sought to proceed as purchaser he should have stated facts which xvould authorize the proceedings to be taken under chapter 275 of the Laws of 1880. If he sought to proceed upon a lease or letting to the tenant after the petitioner had become the owner under his deed, so that the conventional relation of landlord and tenant existed, he should have set out the facts xvhich would indicate that such a relation existed. (3) The description in the petition and in the deed taken by the petitioner is vague and indefinite, and proof xvas given tending to shoxv that it xvas entirely inadequate to describe the property owned by Hard and occupied by Navagh. The proceedings should be reversed. All concurred.