Brien v. Romano

The landlord instituted summary proceedings against the tenant, alleging that he was holding over on a monthly tenancy. The petition besides reciting the customary facts sets forth that the statutory notice in writing to the effect that the landlord elected to terminate the tenancy, had been duly served on the tenant five days .before the expiration of the alleged term. The answer denied every allegation of the petition, except that the respondent was the landlord of the' premises. At the trial no proof whatever was offered of the service of this notice. This 'defect of proof has in this court but recently been held to constitute substantial and reversible error (Hedden v. Nederburg, 25 Misc. Rep. 722; 55 N. Y. Supp. 613), and following.that and kindred decisions (Tolman v. Heading, 11 App. Div. 264; Beach v. Bainbridge, 7 Hun, 81; Posson v. Dean, 8 Civ. Pro. 177), we must reverse the order. '

Fbeedman, P. J., and MacLean, J., concur.

Order reversed and new trial ordered, with costs to appellant ■to abide event.