#### Charles A. Peabody et al., Respondents, *v.*The Long Acre Square Building Co., Appellant.

(Supreme Court, Appellate Term,

June, 1905.)

Summary proceedings — Final order of removal.

Where a summary proceeding is based both upon the nonpayment of rent and the nonpayment of taxes, nonpayment of rent sufficiently proven will sustain a final order of removal of the tenant.

McCall, J., dissented.

Appeal by the tenant from a final order in favor of the landlords entered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.

Herbert E. Limburger, for appellant.

Baker & Peabody, for respondents.

Scott, J.

It is claimed by the tenant-appellant that the petition was defective in that it failed to allege that the three days’ notice was served as required by law. It is true *630that, in the body of the petition there is an omission to allege that the marshal, at the time of service, 'showed the original notice to the officer of the tenant upon whom the service was made, but the petition in terms refers to and “makes part of the petition ” the original notice and proof of service, and that proof shows that the original notice was exhibited to the person served. This would seem to answer the oh- , j action, but even if' it did not, it is, in my opinion, too late to now take the point. The record shows that the tenant did not at any time make the objection in the court below, and in my opinion it must be deemed to have thereby submitted itself to the jurisdiction. Matter of Stuyvesant Real Estate Co., 40 Misc. Rep. 205. It is true that in the case above cited the court says that the question upon which the case was decided in this court “ as it involves a question of jurisdiction of the court below must be considered, although raised for the first time on appeal.” It appeared in that case, however, that the petition had been dismissed upon another objection made by the tenant. The appellate court found this particular objection untenable, but in passing upon the propriety of the order of dismissal found itself called upon to examine every question not expressly waived below. As the tenant had been successful below in his first objection he had neither reason nor opportunity to present any other, and, therefore, could not be held to have waived one that he otherwise might have raised. A summary proceeding does not differ in any essential particular from any other civil action or proceeding so far as concerns the jurisdiction of the court to entertain it. The general rule in all civil actions is that a party may stipulate away all his rights, questions of jurisdiction as well as others, and he may do this by express agreement, by acts inconsistent with the objection or by his silence and omission to present the proper points when he ought to object. Cowenhoven v. Ball, 118 N. Y. 231; Vose v. Cockcroft, 44 id. 415. Riot having,spoken when he ought he will not be permitted to speak when he will. Johnson v. Oppenheim, 55 N. Y. 291. As was' said in Cowenhoven v. Ball, *supra:*“ The distinction is clear between objections which are *in*the case and arise upon the *631evidence, and are involved in the controversy between the parties and those which are *to*the proceedings, and not connected with the matters in issue but are preliminary, and, go only to the rights and power of the court to hear the case. The former are meritorious and are available to the unsuccessful party on appeal, although they may not have been considered in the lower court. The latter are technical, and do not affect the merits and are deemed to have been waived if the party proceeds with the trial or argument of his case without raising them.” Applying this rule to the case at bar it seems quite clear that the jurisdictional defect upon which the appellant now relies was one which could be and was waived by the appearance and answer of the defendant, and its proceeding to trial and judgment without suggesting the defect in the service or in the allegations of the petition respecting it, The tenant appeared'on the return day and obtained time to plead; the answer contained no plea to the jurisdiction, and at the trial, although several objections to the jurisdiction were raised by motion to dismiss and were rightly overruled, the particular objection now urged was at no time suggested. If the tenant had desired to avail itself of the objection it should have been taken at the trial. If then overruled, the tenant, having saved the point by proper exception, might safely have proceeded with the trial. The objection would then have been available upon an appeal from the final order. The answer contained a general denial, and thus put the landlords to their proof, and here also they failed to show that the three days’ notice was served in the manner prescribed by statute, in that there was no evidence that the original notice was exhibited to the officer of defendant on whom service was attempted to be made. Here again, however, the tenant omitted to call attention to this defect in the proof, or to inclnde it among the reasons for dismissing the petition. We are bound to assume that, if attention had been called to the omission, it would have been supplied, since the marshal’s certificate attached to the petition and made a part thereof by reference, shows proper statutory service. It is too late for the tenant now to take advantage of the omission. In my opinion the payment of *632tlie taxes after appearance and the filing of the answer was wholly insufficient to defeat the landlords’ right to a final order, and evidence of such payment was inadmissible. Ho such issue was presented by the pleadings and the only issues to be tried are those raised by the petition and answer. Code Civ. Pro., § 2247. The landlords’ right to a final order is to be determined by the result of such a trial. There is no provision of law authorizing the court to refuse a final order under such circumstances, and it is only the final order which is appealed from and with which we now have to deal. Under section 2254, Code of Civil Procedure, the issue of a warrant may be stayed, *after a final order is*made, by paying the taxes due and the costs of the proceeding, but this provision relates only to the issue of the warrant and not to the granting of the final order. Doubtless the payment of the taxes before the granting of the final order, if supplemented by payment of the costs of the proceeding, may be availed of to stay the warrant, but not to prevent the adjudication in favor of the landlords upon the issue raised by the pleadings and the grant of a final order thereon. In the present case, however, the proceeding was based upon both the nonpayment of rent and the nonpayment of taxes. The nonpayment of rent was sufficiently proven, and that alone is enough to sustain the final order, which should be affirmed, with costs.

Final order affirmed, with costs.

Giegebich, L, concurs in result.

McCall, J.

(dissenting). This is an appeal from a final order made in a summary proceeding. The lease under which the tenant was in possession called for a term of twenty years, beginning Hovember 1, 1902,' and it provided for the payment of an annual rental of about $15,000. The petition prayed for a final order to remove the tenant from the premises for nonpayment of taxes and default in payment of an installment of rent past due. The petition does not allege, nor is any claim made, that a demand for rent was made as provided for in subdivision 1, section 2231 of the Code of *633Civil Procedure, but it does set out that a three days’ notice in writing, calling for the alternative proposition of the payment of rent or possession of the premises, was served on the person owing it, and upon the face of the petition it is patent that this service was not made as required by law. The service of this notice must be made in the same manner as the service of a precept, as provided in section 2240 of the Code, and a strict compliance with the statute is absolutely necessary. Beach v. McGovern, 41 App. Div. 381. The defect in this petition is a fatal one, because the fact of the demand in one of the ways prescribed by section 2240 is a *jurisdictional fact*which the petitioner must establish in order to get his warranty and it is not incumbent upon the tenant to show that he did not receive any such demand or notice. Tolman v. Heading, 11 App. Div. 264. ' Some suggestion is offered that by appearance the defendant waived the defect and subjected itself to the jurisdiction, but in the face of this record I cannot reason this out or agree with any such conclusion. In the face of a direct motion to dismiss because of *“*jurisdictional defects contained in the petition,” which motion was denied, I do not see what there remained to be done, unless that the tenant should abandon the case, an attitude he was not called upon to take. Baird v. Helfer, 42 N. Y. Supp. 484. This aside from the fact that it has been distinctly held, that a question involving the jurisdiction of the court below must be considered, although raised for the first time on appeal. Matter of Stuyvesant Real Estate Co., 40 Misc. Rep. 205. It follows, therefore, that the court was without jurisdiction and the order was absolutely void. While this would render unnecessary any further review of the case, still there remains a feature that should be referred to if only to emphasize the fact that those proceedings should be set aside.. The petition, as has already been stated, prays for the removal of the tenant for nonpayment of taxes as well as nonpayment of rent, and although proof of the payment of taxes was adduced and leaves the fact that they were paid absolutely uncontradicted, and still further that notwithstanding that the court’s attention was called to the drastic effect that an order reciting the removal *634being made for nonpayment of taxes would entail, still all things to the contrary notwithstanding, the court entered just such an order and issued a warrant of dispossess which is executed upon the provisions of that order. How can we uphold such a proceeding? It is not a mere irregularity. Under section 2256 of the Code where a tenant is dispossessed for nonpayment of rent a tenant would have the right of redemption, but if a tenant be dispossessed for nonpayment of taxes there would be no right of redemption (Witty v. Acton, 58 Hun, 552), and in the case at bar stands a possessor of a leasehold estate having a term of twenty years to run and deprived of that with no right of redemption, and not a particle of proof upon which- to base such a judgment. I cannot assent that a curative process for this wrong is to be found in any direction by the court, of amendment of the order, the *warrant*has been executed and it is altogether too questionable a remedy to subject the tenant to.

The order should be reversed, the warrant vacated, and restitution awarded, with costs.

Final order affirmed, with costs.