128 N.Y.S. 654 | N.Y. App. Term. | 1911
The landlords have obtained a final order in summary proceedings for nonpayment of rent, without proof of any demand or notice, as required by subdivision 2 of section 2231 of the Code, except that he testified that he asked some unidentified man, not the tenant, but who was with the tenant’s attorney, for the rent. Obviously such proof is entirely nugatory. The trial justice gave judgment for the landlords, on the authority of Moore v. Coughlin, 127 App. Div. 810, 111 N. Y. Supp. 856. That case decided only that:
“In the strict practice which prevailed at the common law, it was essential for the petitioner, in order to maintain summary proceedings to remove the tenant for nonpayment of rent, to show that he had demanded the precise sum due, and upon the premises, if the proceeding was founded upon a demand. The strictness of the rule is not contained in the Code. In fact, where any rent is due, and the tenant refuses to pay, the landlord is entitled to the final order and warrant of dispossession.”
While the strictness of the practice as to the demand has been relaxed under the Code procedure, a demand and refusal is still a condition precedent to the maintenance of the proceedings.
The order should therefore be reversed, and a new trial granted, with costs to appellant to abide the event. All cóncur.