187 Misc. 437 | N.Y. App. Term. | 1946
Memorandum A thirty-day notice of termination of tenancy in the city of New York to be served “ in the same manner in which a precept in summary proceedings is now allowed to be served by law ”, is void if served on Sunday (Real Property Law, § 232-a; Penal Law, art. 192, §§ 2140-2154; Hastings v. Farmer, 4 N. Y. 293; Tolman v. Heading, 11 App. Div. 264). Matter of D’Agostino v. Bernabel (269 App. Div. 853) is clearly distinguishable, as there the notice being served by registered mail, the tenant on the return day of the precept did not question jurisdiction of the Justice’s Court but appeared generally, merely asking time within which to vacate and thus admitted jurisdiction and waived any defect in the notice.
Petitioners’ notice and petition also failed to allege “ immediate compelling necessity ” under paragraph (6) of subdivision (a) of section 6 of the Office of Price Administration Rent Regulation for Housing in the New York City DefenseBental Area (10 Federal Begister 11668). Petitioners’ proof was also deficient in respect of the thirty-day notice, month-to-month tenancy, and notice to Area Rent Office (Regulation, § 6, subd. [d], par. [2]; 8 Federal Register 13918). While the evidence was sufficient to present factual questions on changed circumstances, good faith and res judicata, the errors pointed out above are fatal and require reversal and dismissal without prejudice to a new proceeding upon due notice (Hedden v. Nederburg, 25 Misc. 722; Tolman v. Heading, 11 App. Div. 264, supra; Dash Corporation v. Brown, 191 N. Y. S. 308; Cannon v. Gordon, 181 Misc. 950).
The final order should be reversed, with $30 costs, and petition dismissed, with costs, without prejudice to new proceeding upon due notice.
Hammeb, Edeb and Hecht, JJ., concur.
Order reversed, etc.