14 Wend. 172 | N.Y. Sup. Ct. | 1835
By the Court,
The objections of the plain tiff to the affidavit upon which the summary proceedings were had, arise under the following provision of the statute: “ Where such person shall hold over (without permission) after any default in the payment of rent, pursuant to the agreement under which such premises are held, and satisfaction of such rent cannot be obtained by distress of any goods, and a de
As to the demand of rent, the affidavit of the agent states, that he went on the premises and demanded, on behalf of James and Townsend, the rent due on the lease, but does not state of whom the demand was made; but it is perhaps necessarily implied that it was made of the tenants in possession. Nor does the affidavit state on whom the notice requiring the payment of the rent, or that the possession of the premises be delivered up, was served. The act requires that it should be served on the person owing the rent. The affidavit should have been more specific in both these respects. The act does not specify of whom the rent shall be demanded; but the 28th section authorizes the tenant, or lessee, or the assigns, under-tenants or representatives of the tenant or lessee, to be removed. The tenant in possession would probably fall under the description of an under-tenant, if he were not assignee ; and I think a demand of the rent from the tenant in possession is sufficient ; and he probably would be considered the person owing the rent within the provision of the act, upon whom this notice should be served. But if the rent was properly demanded, there was no necessity for serving a no
The 43d section provides, that whenever a warrant shall be issued for the removal of any tenant, from any demised premises, the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be cancelled and annulled. The plaintiff’s lease was of course terminated by the proceedings under this act, as much so as though it had been voluntarily cancelled and surrendered by the parties. The plaintiff therefore showed no title to premises in question.
New trial denied.