Tolman v. Heading

11 A.D. 264

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Parker, P. J.:

In order to maintain this summary proceeding, and to become entitled to an order removing the defendant Heading from the premises in question, it was incumbent upon the petitioner to prove either that he had demanded from Heading the rent which was due, or that he had served upon him, in behalf of the person's to whom the rent was due, at least three days’ notice in writing requiring the payment of the rent or the'possession of the premises. (See Code Civ. Proc. § 2231, subd. 2.) And the proof should also have shown that such notice was served in the manner required by that section. The demand required by such section is a personal demand ; that is, one made to the tenant personally, and for the payment of the rent absolutely, as distinguished from the three days’ notice to pay or surrender possession of the premises. (People ex rel. Simon v. Gross, 50 Barb. 231.) There is no proof that any such demand was made on this defendant, and the petitioner is not proceeding upon that theory. His claim is that the three days’ notice required by the statute was given, and the question is whether proof of the proper service of such a notice has been made. The only proof offered upon that subject is the evidence of the petitioner to the following effect: He is asked: “ Did you serve a notice upon him to pay or surrender the premises?” A. “ I did.” “ You preserved no copy of the notice you served on him?” A. " No, sir.” “ What was the notice ? ” A. “ That he should pay within three days or surrender the premises; I think that it is.” These answers were taken under the objection that such evidence was incompetent, and that the notice itself was the best evidence of its contents. Conceding that, under the circumstances of this case, parol evidence of the contents of the notice ivas properly given (Edwards v. Bonneau, 1 Sandf. 610), and conceding that the notice, as described by the witness, was sufficient in form and contained all that the statute requires, which is very doubtful, nevertheless his proof as to the service of such notice is fatally defective.

Such notice is required by the statute to be served as a precept is served. Section 2240 of the Code provides how this is to be done. If served personally, a copy of the notice should have been delivered to defendant, and at the same time the original should have been shown him. If defendant was absent from his dwelling house, then by leaving a copy with some person of suitable age and discretion, residing there, or, if none resides there, Avith such a person employed there; or, if neither of these services could, Avitli reasonable diligence, have been made, by affixing a copy of the notice upon a conspicuous part of the property. Which of these three methods Avas adopted in this case ? Or Avas either of them adopted ? There is no proof Avhatever upon that subject. The petitioner says he served it. What his idea of service Avas does not appear. He may have read the notice to defendant and called that a service. The defendant has denied by his answer that any notice was served or demand ' made upon him. The burden was, therefore, put upon the petitioner of proving, by competent evidence, either a personal demand of the rent, or a service in the manner required by section 2240. These proceedings are statutory, and must be strictly followed. (Miner v. Burling, 32 Barb. 540; Bloom v. Huyck, 71 Hun, 256.)

It was not incumbent upon the defendant to show that he had received no such demand or notice. It was one of the facts which the petitioner must establish to bring himself within the provisions of the statute and to become entitled to the warrant which he asked. This he failed to do. Upon the close of the evidence the objection was squarely taken by defendant that such proof had not been made, and we are of the opinion that for such reason the proceedings should have been dismissed. (Posson v. Dean, 8 Civ. Proc. Rep. 177; People ex rel. Morgan v. Keteltas, 12 Hun, 67.)

Order appealed from reversed, with costs, the warrant of removal vacated, and an order made awarding restitution to the defendant herein.

All concurred.

Order appealed from reversed, with costs, the warrant of removal vacated, and an order made awarding restitution to the defendant herein.