People ex rel. Morgan v. Keteltas — 19 N.Y. Sup. Ct. 67

Majority

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THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM F. MORGAN and JOHN E. WALSH, v. HENRY KETELTAS, as one of the Executors, etc., of EUGENE KETELTAS, Deceased, and as Agent of THOMAS McCARTY.

Headnote

Summary proceedings — service of written demand for rent — what statement as to, in affidavit, sufficient.

Upon an application for the issuing of a summons in summary proceedings to procure the removal of a tenant, the only proof of a demand for the rent was contained in an affidavit in which the deponent stated that “ he has demanded the said rent from the said tenants by a three days’ notice, in writing, a copy of which is hereto annexed,” held, that the affidavit failed to show such a service of the written demand for rent as was required by subdivisions 1 and 2 of section 32 of the statute relating to summary proceedings; and that a judgment in favor of the landlord, entered upon the default of the tenant, should be reversed

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This is a writ of certiorari issued to review proceedings taken to remove tbe relators from premises occupied by them as tenants, for tbe non-payment of rent. Tbe proceedings before tbe justice resulted in a determination in favor of tbe landlord, and tbe relators .were removed from possession of tbe property. They did not appear in any form, but tbe adjudication against them was made upon their default.

George A. Black, for tbe relators.

Benjami/n Merritt, for tbe respondent.

According' to tbe affidavit upon wbicb tbe proceedings were com menced, and tbe summons issued, tbe rent alleged to bave been in arrear was duly demanded by a three days’ notice, in writing. Tbe averment upon that subject was made in tbe following terms, by tbe person making tbe affidavit. “ That be has demanded tbe said rent from tbe said tenants by a three days’ notice, in writing, a copy of wbicb -is hereto annexed, since tbe same became due and payable under said agreement, and that be has made default in tbe payment thereof,” etc. Tbe notice annexed required tbe rent to be paid “ before tbe expiration of three days from tbe day of tbe service of this notice, or surrender up tbe possession of said premises to said landlord, in default of wbicb tbe landlord will proceed under tbe statute to recover tbe possession thereof.”

Tbe statute has provided for such a proceeding against tbe tenant on bis default in payment. But in doing so it has declared that tbe three days’ notice, in writing, requiring tbe payment of such rent, or tbe possession of tbe premises, shall bave been served by tbe person entitled to such rent on tbe person owing tbe same, in tbe manner prescribed for tbe service of tbe summons in tbe thirty-second section of this title. Tbe thirty-second section prescribed several distinct modes for tbe service of tbe summons. It could bo qtersonally served by delivering a copy to tbe tenant, and at tbe same time showing him tbe original; or, if absent from bis residence, and it be in tbe same city or town as tbe demised premises, by leaving a copy with a person of mature age, residing on tbe premises; or, if that cannot be done, then by leaving a copy with a person of mature age residing on tbe demised premises, or employed

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in the business in which they are used, or by affixing it upon a conspicuous part of such premises when no such person can be found. (3 R. S. [5th ed.], 836, § 28, subd. 2 ; 837, § 32, subds. 1 and 2, as amended by laws of 1868, vol. 2, 1930, chap. 828, § 2.)

According to the first of these sections service of the notice used by the landlord in this case could only be lawfully made in one of these modes. And such service, when a three days’ notice is used, is necessary to entitle the landlord to maintain summary proceedings for the removal of the tenant. It has been made one of the facts on which alone the landlord can lawfully proceed in the case. The provision upon this subject is that the landlord, his legal representatives, agents or assigns, may institute the proceedings by an oath, in writing, of the facts which, according to the preceding section, authorize the removal of a tenant. (3 R. S. [5th ed.], 836, § 29.) And one of the facts rendered essential for that purpose by the preceding section is the service of the three days’ notice, in writing, in the manner prescribed for the service of the summons by the thirty-second section. The affidavit made in this case, or the oath, in writing, as the statute has denominated it, showed no such service of this notice as the statute required to be made of it, in order to warrant the institution of the proceeding upon its basis to remove the tenants. It was neither shown to have been served personally, nor by leaving a copy with a person residing on the premises occupied by the tenant, or by affixing a copy on a conspicuous part of the demised premises. All that was said upon the subject was 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. That was very clearly insufficient, because it showed no such service of the notice as the statute in very plain terms had required.

This constituted a fatal defect in the proceedings, and without examining any other objection urged on behalf of the tenants, it requires that they should be reversed, with costs, but without any direction for restitution, as that is waived in his points by the counsel for the relators.

Davis, P. J., and Ready, J., concurred.

Proceedings reversed, with costs, but without direction for restitution.