#### Mary A. Wands, Respondent, *v.*George Robarge, Appellant.

(County Court, Onondaga County,

July, 1898.)

Summary proceedings — Joinder of issue—-Waiver of jurisdictional defects — Appeal.

Unless an issue has been joined in a summary proceeding by the filing of a verified answer, or by an answer which can be held to be a waiver of a verified answer, the fact, that the defendant appeared on the return day of the precept and did not object to the proceeding, is not a waiver of a failure upon the part of the landlord to verify the petition nor of other defects going to the jurisdiction; and the judgment, although void and defective in form, may be made the subject of an appeal by the tenant to the end that the errors may be corrected.

Appeal from what purports to be a judgment and final order in summary proceedings to recover possession of real property rendered by a justice of the peace of the town of Manlius, in the county of Onondaga, on the 6th day of May, 1898.

The following petition was presented to the justice of the peace:

*“*To William Austin, Justice of the Peace of the town of Manlius, Onondaga county, N. T.:

The petition of Mary A. Wands, by A. S. Wands, agent, of Fayetteville, town of Manlins, county of Onondaga, N. T., shows that she is the ’owner of the following premises, situate in said *274town of Manlius, to-wit: One blacksmith shop, situate on the north side of Genesee street, in the village of Eayettevillé, E. T. That a demand for the possession of the- premises was made personally, and also by serving a three days’ notice in writing at the, town of Manlius, in said county, on the second day of May, 1898, on the said George Eobarge. That the said George Eobarge-has not surrendered possession of the premises. Therefore, your petitioner prays for a final order to remove the said George Eobarge, from the premises.

A. S. Wands,

Agent for Mary A. Wands.

Subscribed and sworn to before me, this 5th day of May, 1898.”

The justice thereupon issued a precept describing the premises as alleged in the petition, and made the same returnable on the 6th day of May, 1898, at 9 o’clock in the forenoon. Upon the-return of the precept, as appears by the justice;s return, the foB lowing proceedings were had:

“Plaintiff appeared by A.-S. Wands, agent, and defendant appeared in person. A. S. Wands sworn, says that on the 26th day of April, 1898, he gave the 'defendant verbal notice, as agent for. his wife, that she had purchased the premises occupied by him. Defendant told him then that he did not want and did not expect to stay. Plaintiff demanded possession May 1st, which defendant agreed to give, but failed to do so. Défendant raised no objections to the proceeding, and was willing to give possession, but asked until the next day, Máy 7th, but would get out the same day if possible.”

Judgment rendered in favor of the plaintiff, and .a warrant to dispossess was issued, which was returned, having been served.

Andrew W. Wilkin, for appellant.

William Kennedy, for respondent.

Ross, J.

It is claimed by the defendant that the proceedings ■ had before the justice conferred no jurisdiction upon him for the following reasons; That the petition was not verified as required . by law; that the description of the premises sought to be oh*275tained is insufficient; that the petition does not state facts to bring the case within any of the provisions'of the statute authorizing summary proceedings to récover possession of real property. It does not allege that the tenant is in default in payment of rent which has been demanded. Does not allege that the tenant is holding over after the expiration of his term without permission of the landlord. In fact does not allege any jurisdictional fact required to bring the case within the statute relating to the summary recovery of real property, to which may be added that the purported judgment is not in the form required by law. It purports to be a judgment instead of a final order, and does not award to the petitioner the delivery or possession of the property described in the petition. With the exception of the objection last named, the irregularities mentioned were substantially conceded upon the argument to be fatal to maintaining the judgment or order appealed from, unless the same were cured by the personal appearance of the tenant upon the return day before the justice and by what took place at that time.

The statutes relating to the recovery of possession by summary proceedings of real property are to be strictly construed or the justice will not obtain jurisdiction. Farrington v. Morgan, 20 Wend. 207; Coatsworth v. Thompson, 5 N. Y. St. Repr. 809; Marchand v. Haber, 16 Misc. Rep. 319.

The Oode of Civil Procedure, section 2876, provides that an action may be commenced before a justice of the peace by the voluntary appearance and *joinder of issue*by the parties, or by the service of a summons. No provision for a voluntary appearance in summary proceeding to obtain possession of land is found. To bring the parties into court, it is necessary to present a written petition, stating the jurisdictional, facts required- and verified in like manner as a verified complaint in an action in the Supreme Court. At the time the precept issued upon the petition so- presented is returnable, the person to whom the petition is directed may file a written answer, verified in like manner as a verified answer in the Supreme Court. § 2244. The issues are joined by such petition and answer. § 2247. And until such joinder of issue, *the defendant is not in court.*In other words, ¡assuming. that the defendant in a proceeding of this character could waive an irregularity in the length of time, or form of precept, or in the petition itself, he can only do so by filing a verified answer. or an answer that could be held to be a waiver of such a *276verified answer, and until he is in court hy such a joinder of issue, or by service as required, no- proceeding is pending,

Lester v. Crary, 1 Den, 81. In this case the parties appeared before a justice of. the peace, with a view to the commencement of a suit before him, and an adjournment was had at the request of the defendant, without issue joined, or any pleadings put in. It was held that no suit was thereby commenced, and the plaintiff,, having appeared upon the adjourned day, declared and. put in his proofs. The judgment entered thereon was held to be erroneous. It is'not necessary, however, to base a reversal of this judgment upon the foregoing grounds alone, but I think thei justice failed to obtain jurisdiction of the subject-matter of the.proceeding for reasons even more emphatic than thosé already suggested.

The case of Burckle v. Eckhart, 3 N. Y. 132 and 137, was a suit .upon a contract in which the defendants appeared, but the bill was taken as confessed for want of an answer. Upon the trial, testimony upon both sides was given and the plaintiff offered in evidence an.exemplified copy, of the proceeding and a decree in the Court of Chancery before the vice-chancellor of the fifth circuit. It was claimed by the defendants that this was inadmissible because the chancellor of'the fifth circuit had no jurisdiction because of the nonresidence of the- defendants, and claimed at the close of the evidence that a. nonsuit should be granted because the decree in question was not evidence to go to the jury.

Gardiner, J., On page 137, says: “ The residence of a.'defendant within the limits of the circuit, according to the third subdivision of second- section of the statute above quoted, is a jurisdictional fact which must exist before the court can act at all, either by issuing process or accepting the appearance of a defendant. It is necessary to give jurisdiction of the cause, not of the person. In such case there can be no waiver.”

Coatsworth v. Thompson, 5 N. Y. St. Repr. 809, was a decision of the - Superior Court of Buffalo, at General Term. This was a proceeding to recover the possession of real property in which the petition was not verified, and upon the return day one of the defendants (both being personally served) appeared, and the matter was held by consent. -Upon a future day one of the defendants again appeared and objected to the jurisdiction upon the ground that the petition was not verified. Held, that the appearance of the defendant Y. upon the return day without stating or qualifying his' appearance was a general appearance, but did not amount to *277a waiver of Ms right to make objections to the insufficiency of the petition.

Campbell v. Mallory, 22 How. Pr. 183, is a decision made by the county judge of Tates county. This was a proceeding to recover possession of real property, and the affidavit filed with the justice alleged, with other tMngs, that the tenant was in possession of a certain house and lot, situated in the village of Penn Tan. The summons reqmred the tenant to remove from the house and lot on Clinton street, in the village of Penn Tan, occupied by Mm, or to show cause, etc. On the day mentioned in the summons for showing cause, the defendant appeared in person and by counsel before the magistrate and put in an answer under oath denying in substance that he held over as claimed. Upon this issue the parties went to trial, and it was decided that the tenant was guilty of. holding over and continuing in possession of the premises, and a warrant was served for the purpose of removing him theréfrom. It was held upon the appeal from tMs judgment or order that because of the insufficiency in the description contained in the petition, that no jurisdiction was conferred upon the magistrate to act, *notwithstanding the fact that the tenant did not make any such contention before the magistrate, and a trial was had upon the merits.*

The learned county judge says on page 189: *“*But it may be said, that the statute confers this jurisdiction. In a general sense the statute does confer upon the magistrate jurisdiction of proceedings of tMs character; yet after all, this jurisdiction must be taken and exercised in strict conformity to the statute, and in no other way can his acts be recognized as valid. The magistrate not having acqmred jurisdiction of the subject-matter for the reasons stated, he could not take jurisdiction of any of its consequences or incidents. * * * Nor could consent confer this jurisdiction, * * * Though it will of the person when jurisdiction of the subject-matter has been previously acquired.”

In the case of Coffin v. Tracy, 3 Caines, 128, it is stated “ Consent will take away error, but neither that nor confession will give jurisdiction.”

But it may be contended that tMs judgment is absolutely void and that there is no judgment from which an appeal can be taken. Schneider v. Leizman, 57 Hun, 561. But in that action no judgment or final order had been made or entered by the justice. I think, however, an appeal will lie to correct the errors claimed. Striker v. Mott, 6 Wend. 465; Frost v. Frost, 15 Misc. Rep. 167.

*278The judgment or order appealed from is reversed, with costs.

If the attorneys cannot agree upon the form of the’judgment it may be settled upon two days’ notice as I do not now determine whether restitution shall be ordered. Code Civ. Proc., § 2263.

Judgment and order-reversed, with Costs.