13 Johns. 158 | N.Y. Sup. Ct. | 1816
We consider the affidavit of the service of the notice, by the consent of the counsel, as if incorporated in the return. The act (sess. 11. ch. 6. s. 3. 1 N. R. L. 96.) directs, that a notice in writing, of the time and place of the return of the precept of inquiry, should be “ affixed up in some public and suitable place, upon the lands or tenements,” &c., “ or be delivered to the party against whom such complaint is made, if such party be on the premises.” The true construction of the act is, that the service must be on some public and suitable place on the premises, or personally on the party. It should appear that every thing had been done, in the power of the party, to bring the notice home to the person who was entitled to receive it, according to the intention and direction of the act. The affidavit, in this respect, is defective. If it had stated that the notice had been affixed on the front door of the house, or in a public and suitable place, it would have been sufficient; but we can intend nothing but what is expressly stated in the affidavit. The proceedings, therefore, must be set aside, and the posses-* sion restored.
The following rule was accordingly entered. “ Ordered, that the conviction of forcible entry and detainer, in this cause, be set aside, or quashed, for irregularity ; and that the said James Forbes and James Nelson, be restored to the possession of the lot and messuage of which they have, been dispossessed by means of the said conviction.?’
