Scheifele v. Irving

The opinion of the court was delivered by Garrison, J. This is an action brought for the recovery-of demised premises for the non-payment of rent. Rev., p. 576, § 29. [181] The question is, whether the justice acquired jurisdiction. The affidavit of the landlord sets forth that the notice of rent in arrears was served on the defendant “ by affixing a copy of such notice to the door of said demised premises occupied by said Philip A. Scheifele, it being impossible to make service personally or by leaving with a member of his family.” This affidavit is clearly insufficient, in that it fails to state the facts necessary to justify the method of service employed. Section 11 of the Landlord and Tenant act (Rev., p. 577) provides that “ the notice required in this section shall be served either personally on the tenant by giving him a copy thereof, ■or by leaving a copy thereof at his last usual place of abode with some member of his family above the age of fourteen years; or, where from any reason such service cannot be had, then the same may be served by affixing a copy of such notice to the door of any dwelling or such demised premises occupied ■by such tenant.” Under the language here employed it is for the justice to determine, upon the facts stated in the affidavit, whether the ordinary method of service may lawfully be dispensed with. Eor this purpose the opinion of the landlord, based upon undisclosed facts, is valueless. Eor the reasons given in Woolley v. Lane, 22 Vroom 504, and cases there cited, the judgment entered by the justice must be set aside.