Opinion
October, 1898.
Palmieri Nock, for appellant.
Martin F. Bourke, for respondent.
The justices of the Municipal Court of the city of New York, have no power to open a default taken in summary proceedings. Cochran v. Reich, 20 Misc. 593; Langbein's Municipal Court Pr. (4th ed.) p. 285. Moreover, the Appellate Term has no jurisdiction to entertain an appeal from an order denying a motion to open a default (Adolph v. Klein, 23 Misc. 700), and hence the appeal taken from such order must be dismissed, with $10 costs.
The validity of the final order is assailed on the ground that the petitioner has failed to show that a demand for the rent had been made pursuant to the requirements of section 2231 of the Code of Civil Procedure, which, among other things, provides, that a tenant may be removed from the demised premises (subd. 2) where he holds over without permission of the landlord "after a default in the payment of rent, pursuant to the agreement under which the demised premises are held, and 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."
The demand mentioned in the statute, as distinguished from the notice in writing, must be a personal one. Wolcott v. Schenk, 16 How. Pr. 449; People ex rel. Simon v. Gross, 50 Barb. 231; Tolman v. Heading, 11 A.D. 264; Zinsser v. Herrman, 23 Misc. Rep. 645.
In Tolman v. Heading, supra, Parker, C.J., giving the opinion of the court, at page 264, says: "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 persons 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. Pro., § 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."
In the case before us the only proof of a demand for the rent is contained in the petition of the respondent, in which he alleges that "petitioner has demanded from the said tenant Joseph Milone that he perform his agreement and covenant and pay the rent accrued and due, but said Milone has refused and still refuses to pay said rent, and your petitioner has duly demanded that in default of such payment, possession be given to him, which demand has also been refused."
This is clearly insufficient to confer jurisdiction for the reason that it shows neither a personal demand, nor the service of a notice in writing, as required by the statute (Wolcott v. Schenk, supra; People ex rel. Morgan v. Keteltas, 12 Hun, 67), and, therefore, the final order must be reversed, with costs.
If restitution be desired, a motion should be made for that purpose.
BEEKMAN, P.J., and GILDERSLEEVE, J., concur.
Final order reversed, with costs.