Wartman v. Richards

The opinion of the court was delivered by Magie, J. It is unnecessary to consider the grounds presented by the defendant for dismissing the writ of certiorari, for prosecutor’s sole objection to the proceedings cannot avail him. The argument in behalf of prosecutor concedes that the affidavit, whereon the justice allowed the rule to show cause, sufficiently shows a tenancy by the month, duly terminated by the requisite notice and demand of possession. The sole contention is, that the justice acquired no jurisdiction to allow the rule, because the affidavit did not show that after the expiration of the term demand was made and notice, in writing, was given for the delivery of possession, under the first clause of section 11 of the Landlord and Tenant act. The question thus raised has been settled in this court adversely to this contention. In M. C. & B. Co. v. Mitchell, 2 Vroom 99, a tenancy was held to exist, terminable on the discharge of the tenant from the service of the landlord. On [526] January 12th a notice was given discharging the tenant front service on January 25th, and, therefore, terminating the tenancy on the latter day. It contained also a notice to quit, and a demand for the delivery of possession on January 25th, and this court held that no other notice and demand was necessary to confer jurisdiction on a justice under the clause of ¡the act now in question. In this respect the construction which had been put upon language of similar purport, in the Forcible Entry and Detainer act, was followed. Townley v. Rutan, Spenc. 604; S. C., 1 Zab. 674. This decision has long remained unquestioned, and the point decided must be considered res judicata. The certiorari must be dismissed, with costs.