The appellant is a party to summary proceedings instituted to recover the possession of certain real property situate in the borough of Manhattan, upon the ground that the tenant’s term therein has expired. The petition alleges that the appellant is an under-tenant, and as such continued in possession of the demised premises after the expiration of such term, without ' the permission of the landlord thereof. Hence he' had the right to file an answer and to defend the proceedings. Code Civ. Pro., § 2244; People ex rel. Jacks v. Callahan, 8 Week. Dig. 298. The appellant filed an answer denying the allegations of the petition respecting the hiring of the premises by the tenant, and that the latter’s term therein has expired. Thus there devolved upon the landlord the burden of proving the averments so controverted, which he wholly failed to do. The return fails to disclose any proof whatever in support of such allegations, or of an admission thereof on the part of the appellant during the course of the trial.
There being a total failure of proof with respect to material allegations of the petition, the final order must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Present: Beekman, P. J., Giegerioh and O’Gorman, JJ.
Order reversed and new trial ordered, with costs to appellant to abide event.