Shotland v. Mulligan

SEABURY, J.

This proceeding was brought to dispossess the tenant from real estate after default in the payment of rent. A final order has been entered in favor of the tenant, and the landlord appeals.

There is in the record no evidence of any demand of the rent, or that three days’ notice, requiring in the alternative the payment of the rent or the possession of «the premises, was served. Under the statute, evidence of this character is necessary to confer jurisdiction upon the justice to entertain this proceeding. Code Civ. Proc. §§ 2231, 2240; Beach v. McGovern, 41 App. Div. 381, 58 N. Y. Supp. 493; Tolman v. Heading, 11 App. Div. 264, 42 N. Y. Supp. 217; Zinsser v. Herman, 23 Misc. Rep. 645, 52 N. Y. Supp. 107. In the absence of such evidence, the justice before whom the proceeding was tried properly entered an order dismissing the petition.

The order appealed from is incorrect, in so far as it assumes to dismiss the petition “upon the merits.”

Order modified, by striking out the words “upon the merits,” and inserting the words “without prejudice to a new proceeding,” and, as modified, affirmed, with costs. All concur.