Schor v. Domery

• Decision Date: 20 June 1962
• Citation: 232 N.Y.S.2d 205,34 Misc.2d 865
• Parties: In the Matter of Summary Proceedings: Valeta C. SCHOR, Landlord, v. Henry DOMERY and June Domery, Tenants. Justice's Court, Town of Guilderland
• Court: New York Justice Court

Page 205

232 N.Y.S.2d 205

34 Misc.2d 865

In the Matter of Summary Proceedings Valeta C. SCHOR, Landlord, v. Henry DOMERY and June Domery, Tenants.

Justice's Court, Town of Guilderland.

June 20, 1962.

Walter F. Wessendorf, Albany, for petitioner.

James H. Doran, Albany, for tenants.

HAROLD J. HUGHES, Jr., Justice.

In this summary proceeding for non-payment of rent and to recover judgment for unpaid rent in the amount of $200.00 plus interest and costs, defendant tenants move for dismissal of the proceeding for want of jurisdiction.

Upon the adjourned return date, it was stipulated by the parties to this proceeding, by their attorneys, that subsequent to the issuance of the precept initiating this proceeding on the 9th day of April, 1962, and its due and timely service upon the tenants, but prior to the return date specified therein, i. e., April 18, 1962, said tenants vacated and removed from the demised premises.

The tenants move for dismissal of this proceeding on the ground that, since they removed prior to the return date specified in the precept the Justice's Court no longer has jurisdiction to entertain this proceeding. Petitioner waived claim for final order awarding possession of the demised premises, but argues that this Court retains jurisdiction for the purpose of entering judgment for the unpaid rent.

The removal of a tenant from premises prior to the return date of a precept in summary proceedings to recover possession of said premises does not oust the Court of jurisdiction to issue a final order awarding possession to the landlord and determining the rent due. (Four Forty-One Holding Corp. v. Bloom, 148 Misc. 565, 569, 266 N.Y.S. 233; Sheldon Terrace Inc. v. Schneider, 18 Misc.2d 456, 193 N.Y.S.2d 484)

Jurisdiction over the subject matter having vested, it is not divested by subsequent events. Cases cited by tenants, in which the tenants had removed prior to the issuance of the precept (21 West Forty-Sixth Street Corp. v. Latherizer Corp., 142 Misc. 487, 254 N.Y .S. 873) are readily distinguishable, for in that event, the Court never secured jurisdiction.

However, while this Court would have jurisdiction to enter a final order awarding possession to the landlord and determining the rent due, the landlord in this proceeding has waived claim for award of possession. The opinion of Justice Untermeyer, in Four Forty-One Holding Corp. v. Bloom (Supra, pp. 566-567, 266 N.Y.S. p. 234) modifying the final order and judgment of the...