Rogers v. Lynds

By the Court, Sutherland, J. 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 [175] mand of such rent shall have been made, or three days notice in writing, requiring the payment of such rent or the possession of the premises, shall have been served by the person entitled to such rent on the person owing the same, in the manner prescribed for the service of the summons in the 32d section of this title,” &c. 2 R. S. 513, § 28, sub. 2. The fact that satisfaction of the rent cannot be obtained by distress, may be shown by affidavit; it is not necessary to resort to an actual distress for the purpose. The language is substantially the same with that which is used in the section which authorizes an action of ejectment for the non-payment of rent, 2 R. S. 505, § 30: “ W henever any half year’s rent or more shall be in arrear from any tenant to his landlord, and no sufficient distress can be found on the premises, to satisfy the rent due,” &c. The uniform practice has been, under this section, to make affidavit of the fact, that no sufficient distress could be found to countervail the arrears of rent; and I am not aware that the propriety of this practice has been questioned. Vide 9 Wendell, 147. 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 [176] tice. The act is in the alternative. The rent must be demanded or three day’s notice in writing, requiring payment, given. It is not necessary to do both. It is very possible that upon certiorari the affidavit might not have been held sufficient; but the only question here is, whether it was suffice nt to give jurisdiction of the subject matter to the judge. I am inclined to think it was. 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.