App. Div. 654] First Department, July, 1921. foregoing papers this motion is granted upon payment all costs to date." Although in his affidavit the defendant asked to be permitted "to serve an answer to the complaint, setting up as a separate defense, the separation agreement hereto annexed and above referred to as a bar to the decree now sought to be vacated," no copy of a proposed answer was served nor did the order grant any leave to serve the same. The separation agreement, which is attached to the moving papers, provides that the parties may live separate and apart from each other, and contains the following: "The party of the second part, the wife, agrees that the party of the first part, the husband, is hereby released from paying any allowance or alimony for her support and maintenance at any time whatsoever; and the party of the first part, the husband, shall be held by the party of the second part free from all and every debt or debts which she shall, after the day and date hereof, contract." If it was the desire of the defendant to set up this provision of the separation agreement as a bar to the maintenance of this action his motion should not have been granted. The Domestic Relations Law (§ 51) provides that a husband and wife cannot contract to relieve the husband from his liability to support his wife and such an agreement is void. (See Gewirtz v. Gewirtz, 189 App. Div. 483, 486.) The defendant presents no excuse whatsoever for having suffered a judgment by default. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. CLARKE, P. J., DOWLING, SMITH and GREENBAUM, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. First Department, July, 1921. [Vol. 197 T. J. FLETCHER JACKSON and GERTRUDE H. M. JACKSON, Appellants, v. EDNA GREY, Respondent, Impleaded with ALTA BRENNAN and Others, Defendants. First Department, July 1, 1921. Landlord and tenant – summary preceedings - tenant of apartment not residing therein but subletting rooms does not occupy premises for dwelling purposes only, within meaning of Laws of 1920, chapter 942, adding to Code of Civil Procedure section 2231, subdivision la - such tenant may be dispossessed. A house is not occupied for dwelling purposes only, within the meaning of chapter 942 of the Laws of 1920, adding to Code of Civil Procedure section 2231, subdivision la, so as to prevent the removal of the tenant as a holdover, where the tenant does not reside on the premises but leases them for the purpose of subletting rooms therein to third persons. Accordingly, a tenant who leased two floors in a private house for the term of one month, and remained in possession from month to month but who did not actually reside upon the premises or enter into possession personally till after the expiration of thirty days' notice given her to quit the premises, is not protected by said statute and may be dispossessed. APPEAL by the plaintiffs, T. J. Fletcher Jackson and another, from a determination of the Appellate Term of the Supreme Court, First Department, rendered on the 10th day of January, 1921, reversing a final order in summary proceedings of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in favor of the plaintiffs. Henry S. Mansfield, for the appellants. David G. Godwin, for the respondent. PAGE, J.: The facts are practically admitted. The proceeding was brought to dispossess the tenant on the ground that she was holding over after the expiration of her term. On November 1, 1919, the landlord rented to the tenant the second and third floors in a private house, known as 132 West Eightyseventh street, New York city, for the term of one month, and the tenant remained in possession from month to month until October 1, 1920, at which time the term of the tenant expired by reason of a thirty-day notice given by the landlord App. Div. 656] First Department, July, 1921. to the tenant. This portion of the house was rented to the tenant for the purpose of subletting the same to roomers or lodgers. The tenant thereupon subleased portions of the premises, furnished, to four different persons as monthly tenants. The tenant did not reside upon the premises until the first day of October, when she moved in and occupied one of the rooms. This was after the expiration of her term. On behalf of the tenant it is claimed that the premises are occupied for dwelling purposes only, and that by reason of chapter 942 of the Laws of 1920 (adding to Code Civ. Proc. § 2231, subd. 1a), summary proceedings to remove her as a holdover tenant cannot be maintained. In my opinion, the provision of the statute prohibiting the dispossession when the house is "occupied for dwelling purposes " means "where it is occupied by the tenant for such purposes; and where the premises are leased to a tenant not for the purposes of a residence but for the purposes of a business of subleasing to others, the statute does not apply. In this case, although the subtenants were made parties, the proceeding as to them was withdrawn, and it was consented that the warrant should issue as against the tenant only. The Appellate Term in the case of May v. Dermont (114 Misc. Rep. 106), decided January 20, 1921, and, therefore, subsequent to the decision in this case, assumed for the purposes of that case that this was the correct interpretation of the statute, but as the tenant resided in the premises as well as rented out rooms, it was held that she could not be dispossessed. The determination of the Appellate Term should be reversed, with costs in this court and in the Appellate Term, and the final order of the Municipal Court affirmed. CLARKE, P. J., DOWLING, SMITH and GREENBAUM, JJ., concur. Determination reversed, with costs and disbursements in this court and in the Appellate Term, and final order of Municipal Court affirmed. APP. DIV.- VOL. CXCVII. 42 First Department, July, 1921. [Vol. 197 JOHN ORBEN, Appellant, v. STATE INVESTING COMPANY, -- Respondent. First Department, July 1, 1921. Negligence action by husband to recover consequential damages for loss of services, etc., of wife money paid to servant to do wife's work proper element of damages appeal exclusion of testimony not covered by bill of particulars — question cannot be passed on where bill of particulars not in printed case. In an action by a husband to recover consequential damages for loss of services, and for expenses incurred by reason of injuries sustained by his wife through the negligence of the defendant, the expenditure of money to pay for a servant to do the work that the plaintiff's wife had theretofore done, which she was incapacitated from doing because of the injuries she had sustained, was a proper item of damages. The Appellate Division cannot pass upon the question whether testimony was properly excluded on the ground that it was not covered by the bill of particulars where the bill of particulars is not in the printed case on appeal. APPEAL by the plaintiff, John Orben, from a judgment of the Supreme Court in his favor, entered in the office of the clerk of the county of New York on the 13th day of December, 1920, on the verdict of a jury for $400, and also from an order, entered in said clerk's office on the 8th day of December, 1920, denying plaintiff's motion for a new trial made upon the minutes. Clifton G. A. French of counsel [French & French, attorneys], for the appellant. Edward P. Mowton of counsel [Nadal, Jones & Mowton, attorneys], for the respondent. PAGE, J.: The action is to recover consequential damages for loss of services and for expenses incurred for medical attention and nursing, by reason of injuries sustained by the wife of the plaintiff through the negligence of the defendant. Upon the trial the jury returned a verdict for the plaintiff in the sum of $400. A motion to set aside the verdict, on the ground among others that it was inadequate, was denied. App. Div. 659] First Department, July, 1921. The plaintiff proved that he expended for medical services two hundred and sixty-eight dollars, for nurses fifty dollars, and for medicines fifty dollars. He also testified that prior to the injury his wife had done all of the household work, and that thereafter he had to employ a servant to do the work, paying her sixty dollars a month for eight months. He was also interrogated as to the payment of other money to a maid to assist his wife. The questions did not clearly show what work this maid did or whether she was another servant hired after the first one left to do the housework, or one employed for some other service. This testimony was excluded on the ground that it was not covered by the bill of particulars. The bill of particulars is not in the printed case on appeal, and, therefore, we cannot pass upon the appellant's contention that the exclusion of this evidence was erroneous. The expenditure of money to pay for a servant to do the work that the plaintiff's wife had theretofore done, which she was incapacitated from doing because of the injuries she had sustained, was a proper item of plaintiff's damages and should have been included in the verdict. The judgment and order will, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event. CLARKE, P. J., LAUGHLIN, SMITH and MERRELL, JJ., concur. Judgment and order reversed and new trial ordered, with costs to appellant to abide event. BARNET KASHDAN, Respondent, v. WILKER REALTY Co., INC., and WILLIAM H. KIRCHNER, Appellants. First Department, July 1, 1921. Process action for malicious abuse of process - issuance of final warrant in summary proceedings to dispossess. The gravamen of an action for the malicious abuse of process is the willful using of the process, civil or criminal, for a purpose not justified by law and to effect an object not within its proper scope. |