McDonald v. McLaury — 43 N.Y. St. Rep. 512

Majority

p. 512

William McDonald, App’lt, v. David H. McLaury and Catharine McLaury, Resp’ts.

(Supreme Court, General Term, Fourth, Department,

Filed February 13, 1892.)

Headnote

1. SUMMARy PROCEEDINGS—NOTICE TO QUIT—CODE ClV. PRO., §§ 2232, 2236.

The giving of a notice to quit is a condition precedent to the right to institute proceedings to remove a person after mortgage foreclosure, and the petition must allege the giving of such notice in order to confer^ jurisdiction on the justice to issue process. A statement that petitioner “demanded possession" is not sufficient.

2. Same—Waiver of defects.

Such defects are not waived by the appeararce of the defendant and proceeding to trial, where the first appearance was special for the purpose of objecting, and the same objections were renewed at the close of the trial.

Appeal from a judgment or order of the Delaware county court, reversing a final order awarding to the appellant the possession of certain premises situate' in Delaware county, made by a justice of the peace of that county, in summary proceedings to recover the possession of real property.

JE. O' Connor, for app’lt; Walter Scott, for resp’ts.

The final order in this proceeding was reversed by the county court without opinion, and, hence, we have no means of knowing the particular grounds upon which the decision was based.

The respondents, however, seek to uphold it upon the ground, among others, that the petition presented to • the justice upon

p. 513

which such proceedings were founded was fatally defective in not alleging that the notice required by section twenty-two hundred and thirty-six of the Code of Civil Procedure had been given.

The authority to maintain proceedings of this character is given by title 2 of chapter 17 of the Code of Civil Procedure. Independent of this statute, the proceedings could not be maintained. •Such proceedings are entirely statutory, and must be conducted in strict accordance with the provisions of the law, otherwise they •are absolutely void. Miner v. Burling, 32 Barb., 540 ; Coatsworth v. Thompson, 5 St. Rep., 809 .

The provisions of section twenty-two hundred and thirty-two, :so far as they relate to the question under consideration, are as follows:

“ In either of the following cases, a person who holds over and ■continues in possession of real property after notice to quit the same has been given, as prescribed in section two thousand two hundred and thirty-six of this act, and his assigns, tenants, or legal representatives, may be removed therefrom, as prescribed in this title:

up * * * *

“ 2. Where the property has been duly sold, upon the foreclosure, by proceedings taken as prescribed in title ninth of this chapter, of a mortgage executed by him, or a person under whom he claims, and the title under the foreclosure has been duly perfected."

It will be observed that authority to institute a-proceeding to remove after mortgage foreclosure exists only in case of a person who holds over and continues in possession after notice to quit has. been given as prescribed by section twenty-two hundred and thirty-six. The giving of such notice is a condition precedent "to the right to institute the proceeding. Section twenty-two hundred and thirty-six, so far as applicable to this case, provides: “ Where the application is made in a case specified in section two •thousand two hundred and thirty-two of this act, the petition must state that a notice, in behalf of the applicant, requiring all persons -occupying the, property to quit the same, by a day therein specified, has been either served personally upon the person or persons to be removed, or affixed conspicuously upon the property, at least ten days before the day specified therein.”

The following is the only allegation in the petition in this case which it is pretended was at all in compliance with this requirement of the statute: “ That after the title to the said mortgaged premises had been fully perfected in this petitioner as aforesaid, this petitioner demanded possession of said premises from said David H. McLaury and Catherine McLaury, who were then in possession and who are now in possession thereof, claiming to hold the same by some right or title derived from said David H. McLaury, the said mortgagor, subsequently to the execution and delivery of said mortgage, and that the said David H. McLaury and Catherine McLaury neglect and refuse to surrender said possession, and that they hold over and continue in possession of said premises

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after the perfection of said title under said foreclosure proceedings, and after such demand aforesaid, without permission of this-petitioner who is entitled. to the possession thereof.” There was-here no allegation or statement that a notice, in behalf of the-appellant, requiring the. persons occupying the property to quit, the same by a day therein specified, had been either served personally upon the respondents, or affixed conspicuously upon the-property at least ten days before the day specified therein. It is. manifest that the provisions of § 2236 were not complied with.

“ It is an elementary rule that, in every purely statutory proceeding, the statute must be strictly pursued in order to give jurisdiction to the court or officer called upon to apply its provisions.”’ Schneider v. Leizman, 57 Hun, 562 ; 33 St. Rep., 351 .

As the appellant entirely omitted to insert in his petition the-statement required by § 2236, the justice acquired no jurisdiction and was not authorized to issue the original process in the proceedings sought to be commenced. Chretien v. Doney, 1 N. Y., 419 ; People v. Matthews, 38 id., 451 ; People v. Andrews, 52 id., 445 ; Cuyler v. Crane, 25 Hun, 67 ; People v. Boardman, 4 Keyes, 59; Coatsworth v. Thompson, 5 St. Rep., 809 ; Hallenbeck v. Garner, 20 Wend., 22 ; People v. Keteltas, 12 Hun, 67 .

- The claim that the defendants waived the objection to this defect in the petition by appearing in the proceeding cannot be sustained. They appeared first specially for the purpose of objecting to the proceeding and among others raised the objections, “ that, there is not evidence in the petition that a notice requiring all persons occupying the premises in question to quit the same by a day specified therein was served on the defendants or either of them ten days before a day specified in said notice or that any notice of that purport was so served. 3d. There is no evidence in the petition or otherwise before the court that the petitioner has in any way demanded possession of premises in question since his pretended title to said premises was acquired or- that any such demand was made ten days before these proceedings were instituted.”

At the close of the evidence substantially the same objections were again raised. In both instances they were overruled by the-justice, and the respondents duly excepted. Under these circumstances we do not think the defect in the appellant’s petition was waived. The court' erred in overruling the objections of the respondents, and for such error the county court properly reversed the final order in the proceedings.

Judgment affirmed, with costs.

Hardin, T. J., and Merwin, J., concur.