23 Misc. 645 | N.Y. App. Term. | 1898
This proceeding was instituted for the purpose of dispossessing the appellants from the demised premises on the ground that they held .over and continued in possession thereof, without the permission of the landlord, after a ‘default in the payment of rent which became due on the 1st day" of January, 1898, Upon the return day of the precept the appellants appeared by .counsel and interposed an answer to the petition, which, among other things, denied that said rent had been demanded personally of the tenants, or of either of them, or that any demand whatsoever had been made for the same upon them, tor either of them, or that three days’ notice in writing requiring in the alternative the payment of the rent or the possession of the premises had been served upon the tenants, or either of them, as prescribed by law. '
It-is unnecessary for us to consider any of the other objections which have b*een made to the regularity -of the proceedings, in Mew. of the conclusion to which we have come that the point which we have specifically stated is well taken. Section 2231 of the
It ran as follows:.
“New York, January 1,1898.
“John and Augusta Herrman, 15 Walker street, city.
“To C. H. Diamond & Company, Agents, Dr.
“ To rent of store and basement No. 15 Walker' street as per bills rendered to December 31, 1897 . ....... $725 00
“ To rent of store and basement No. ¡15 Walker street for month of January, 1898, as per lease ........ 125 00
$850 00.
“Received payment,”
It is upon this proof and this proof only that the- respondent relies for the purpose of establishing his statutory -demand for the Sent which conditions his right to institute these proceedings. It geems to be well established that the demand which the statute- re-' ifuires must be a personal one. Wolcott v. Schenk, 16 How. Pr. 449; People ex rel. Simon v. Gross, 50 Barb. 231, Supreme Court,
It was held in Wolcott v. Schenk, supra, that the demand meant by the statute is the common-law demand, with all the precision and niceties which the'latter involved; and Mr. Justice Brown, in his opinion, reviews at considerable length the authorities upon the subject. While the courts have not been disposed to follow this .¡case to its full extent, there has been a concurrence at least in the view that the demand must be a personal one made upon the tenant. In the case of People ex rel. Simon v. Gross, supra, Sutherland, J,, giving the opinion of the General Term, says: “ The demand mentioned in the statute as distinguished from the notice in .writing means no doubt a personal demand.” This case was referred to with approval in Tolman v. Heading, supra, where the court, referring to subdivision 2 of section 2231 of the Oode of Civil Procedure, says: “The demand required by 'such section is a personal demand; that is, one made to the tenant personally and for the payment of the rent absolutely as distinguished from the three days’ notice to pay or surrender possession of the premises.” At page 266 the court further says: “The burden was, therefore, put upon the petitioner of proving by competent evidence, either a personal demand of the, rent or a service in the manner required by section 2240. These proceedings are statutory and must be strictly followed.”
The .construction thus given to the section in question is supported by reason as well as authority. The purpose of such proceedings is to .enforce a forfeiture of an interest in real property incurred by the tenant by reason of his failure to comply with a condition upon the performance (of which the continuanqe of his estate is predicated. In view of the grave consequences following such a forfeiture, it has always been the policy of the law to insist that he who purposes to take advantage of it should seek out the person against whom it is sought to establish the forfeiture, and demand of him a performance of the condition in unequivocal language, and under circumstances which would place that person immediately in a position to satisfy the demand tod save his estate. It is obvious that a proper compliance with this requirement could not be had unless the demand was a personal one. It is true that the statute provides an alternative in the. shape of the service upon the tenant in the same manner as a precept is required to be served, of three days’ notice in writing requiring in the alternative the pay
"We are also asked to direct a restitution of the premises under section 2263 of the Code of Civil Procedure. We are not disposed to do so forthwith, owing to the very meager statement contained in the papers with respect to the duration and other elements of the lease, "and also in the absence of proof :of what has taken place with respect to the occupancy of the property since the final order was made. ■ If restitution he desired, a motion should "be made for that purpose.
Final order reversed, with costs.
Gildersleeve and Giegerich, JJ., concur.
Order reversed, with costs.