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Witherbee, Sherman & Co. v. Wykes

143 N.Y.S. 95 Court Essex Cty. Ct. Decision date 1913-06-30 English

Delivered by PYRKE, J.

Contents

Majority

p. 95
(81 Misc. Rep. 474.)
WITHERBEE, SHERMAN & CO. v. WYKES.
(Essex County Court.
June 30, 1913.)

Headnote

Landlord and Tenant (§ 303*)—Recovery of Possession—Summary Proceedings—Petition.
Under Code Civ. Proe. § 2236, relative to summary proceedings to recover the possession of real property, which provides that where the person to be removed is a tenant at will the petition must state the facts showing that the tenancy has been terminated by giving notice as required by law, and Real Property Law (Consol. Laws 1909, c. 50) § 228, providing that a tenancy at will may be terminated by a written notice of not less than 30 days requiring the tenant to remove from the premises, which notice may be served by delivery to the tenant, by delivery to a person of suitable age and discretion residing upon the premises, or by affixing it upon a conspicuous part of the premises where it may be conveniently read, if neither tenant nor person of suitable age can be found, a petition alleging that the petitioner caused a notice in writing to be served on the tenant requiring him to remove from the premises was fatally defective, since it did not show in which of the three methods prescribed by the statute the notice was served or that it was served in any of those methods; the allegation that it was served being a mere conclusion of the pleader.
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 1303-1309; Dec. Dig. § 303.[1] ]
Appeal from Justice Court.
Summary proceeding brought before a justice of the peace to recover the possession of real property by Witherbee, Sherman & Company against Harry B. Wykes. From a final order awarding possession of the property to the petitioner, defendant appeals. Reversed, and restitution awarded.
Robert W. Fisher, of Mechanicville, for appellant.
Stokes & Owen, of Port Henry, for respondent.

The landlord brought this proceeding to remove a tenant at will alleged to be holding over after the expiration of his term. A final order awarding delivery of possession to the landlord was made. The defendant appeals, and challenges the jurisdiction of the court below. The point urged is that the petition was defective' in its statement of the termination of the tenancy.

Section 2236 of the Code of Civil Procedure provides that:

“Where the person to be removed is a tenant at will * * * the petition must state the facts, showing that the tenancy has been terminated, by giving notice, as required by law.”

The “notice required by law” is specified in section 228 of the Real Property Law (Consol. Laws 1909, c. 50), which provides in substance

p. 96
that a tenancy at will'may be terminated by a written notice of not less than 30 days given in behalf of the landlord to the tenant, requiring the tenant to remove from the premises. The section further provides three different ways by which service may be made: First, by delivery to the tenant; second, by delivery to a person of suitable age and discretion residing upon the premises; third, by affixing the notice upon a conspicuous part of the premises where it may be conveniently read, if neither tenant nor person of suitable age can be found.

The allegation of the petition in this proceeding as to the service of notice is:

“That your petitioner caused on the 20th day of January, 1913. a notice in writing to be served on said tenant, requiring him to remove from said premises within thirty days from the date of the service thereof.”

This allegation falls considerably short of a statement of facts showing the termination of the tenancy. It is impossible to determine from it in which of the three alternative methods the notice was served. Indeed, it is possible that the service was not made in accordance with any of those methods. For aught that appears it might have been served by mail. All that can be spelled out of this allegation is that a notice was communicated to the tenant in a manner that the landlord deemed service. In short, the allegation that the notice was “served on said tenant” is not a statement of fact but a conclusion of the pleader.

As an original proposition I should be inclined not to regard this defect as jurisdictional, but on this point I am apparently foreclosed by authority. While no decision has been called to my attention, in a holding over case, the authorities are numerous in the nonpayment of rent cases. The analogy between the two classes of cases is so complete that the authorities in one cannot be overlooked upon the other.

In People ex rel. Morgan v. Keteltas, 12 Hun, 67 , it was held that an allegation by the landlord that he had “demanded the said rent from the said tenants by a three days’ notice, in writing, a copy of which is hereto annexed,” etc., was not' only clearly insufficient but constituted a fatal defect in the proceedings. This case has been repeatedly cited with approval. See Tolman v. Heading, 11 App. Div. page 266, 42 N. Y. Supp. 217 ; Beach v. McGovern, 41 App. Div. page 383, 58 N. Y. Supp. 493 ; Matter of Stuyvesant Real Estate Co., 40 Misc. Rep. 207 , 81 N. Y. Supp. 642 .

The justice, therefore, not having acquired jurisdiction, the final order made by him was unauthorized and should be reversed, with costs, and restitution awarded to the tenant. See Bristed v. Harrell, 21 Misc. Rep. 93 , 46 N. Y. Supp. 966 .

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