Cameron v. McDonald — 1 Hill & Den. 512

Majority

p. 512

Cameron vs. McDonald.

Headnote

Where, in summary proceedings instituted by a landlord to remove his tenant, the ■summons was served by copy, and the proof of service was simply that the tenant was absent, and that the copy was left with R. residing on the premises,* held, insufficient, as not showing the tenant’s absence from “ his last or usual place of residence,” or that the copy was left with a “ person of mature age.”

On certiorari, to remove proceedings under the landlord and tenant act for the recovery of possession of demised premises. The proceedings were had before W. A. Bell, one of the assistant justices of the city of New-York, in favor of John McDonald, landlord, against Daniel D. Cameron, the tenant. The only facts important to a proper understanding of the points decided are sufficiently stated in the ooinion of the court.

J. W. Edmonds, for the tenant,

H. Hunt, for the landlord.

There was no appearance by Cameron before the justice at any stage of the proceedings. The summons was not served on him personally; but (as stated by the' constable in his sworn return) on “ Isaiah Ridgeley, residing on the demised premises, Daniel D. Cameron being absent.” The return is defective. The statute (2 R. iS. 423, 2d ed. § 32). requires either personal service on the tenant, or if he be absent from his last or usual place of residence, by leaving a copy at said place with some person of mature age residing on the premises. It does not appear by the return that the tenant was absent from his usual place of residence. It is said merely, he was absent, without saying from what. Nor is it stated that Ridgeley was a person of mature age.

Proceedings reversed.