Beach v. McGovern

41 A.D. 381, 58 N.Y.S. 493

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Woodward, J.:

The question presented upon this appeal is whether the petition presented to the Municipal Court of the second district of the borough of Brooklyn stated the facts necessary to give jurisdiction in a summary proceeding for the dispossession of a tenant. The petition recites that the “ rent had been demanded from said tenant by the service of a notice in writing on February 1st, 1899, requiring the payment of said rent so due as aforesaid on or before February 6, 1899, or the possession of said premises and which said notice was served upon the said tenant by delivering a copy of said notice at said Mo. 5PL Park place, the residence of said tenant, to ■ a person in charge of said premises, said tenant being absent therefrom at the time, and at the same time exhibiting the original notice to said person,” etc. The appellant urges that, under the provisions of subdivision 2 of section 2231 of the Code of Civil Procedure, it was necessary that this notice should have been served in the precise manner pointed out by section 2240 of the Code of Civil Procedure; that the statement contained in the petition does not show to the court that it was so served, and that the court, therefore, had no jurisdiction. Section 2240 provides (Subd. 2) that “If the person, to whom the precept is directed, resides in the city or town in which the property is situated, but is absent from his dwelling-house, service may be made by delivering a copy thereof at his dwelling-house, to a person of suitable age- and discretion, who resides there; or, if no such person can, with reasonable diligence, be found there upon whom to make service, then by delivering a copy of the precept, at the property sought to be recovered, either to some person of suitable age and discretion residing there, or if no such person can be found there, to any person of suitable age and discretion employed there.” Section 2235 of the Code of Civil Procedure provides that the petition in matters of this character shall state the “ facts which, according to the provisions of this title, authorize the application by the petitioner.” The facts necessary to be stated in this case were that “ a demand of the rent has been made, or at least three days’ notice in writing, requiring, in the alternative, the payment of the rent or the possession of the premises, has been served in behalf of the person entitled to the rent upon the person owing it, as prescribed in this title for the service of a precept.” (Code Civ. Proc. § 2231, subd. 2.) These facts are all set out in the petition with the exception that it is not stated that the service, in the absence of the tenant, was made upon “ a person of suitable age and discretion who resides there.” The petition says that the service was made by delivering a copy of the notice to “ a person in charge of said premises, said tenant being absent therefrom at the'time.” A person might be in charge of the premises and yet not be of suitable age and discretion, nor yet a resident of such premises; neither is there anything in the petition to show that the person who was served with this notice was of “suitable age and discretion employed there.” This being a summary proceeding, it is necessary that the provisions of the statute should be strictly followed. It was necessary that the court should be informed by the petition that the notice had been served in the manner pointed out by the provisions of the Code of Civil Procedure, and this fact not appearing, the court failed to gain jurisdiction and the proceeding is fatally defective. (People ex rel. Morgan v. Keteltas, 12 Hun, 67.)

The order appealed from should be reversed, being void for want of jurisdiction.

All concurred.

Order reversed and proceedings dismissed, with costs.