58 N.Y.S. 493 | N.Y. App. Div. | 1899
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
The order appealed from should be reversed, being void for want of jurisdiction.
All concurred.
Order reversed and proceedings dismissed, with costs.