Mayor of New-York v. Campbell

There are two causes of demurrer to the complaint in this action: 1. That it does not allege that the plaintiffs demanded payment of the rent; 2. That it does not aver notice of an intention to re-enter.

’I. This is a proceeding under the statute, (2 R. S. 505, § 30,) which expressly states, that in the action of ejectment for the *158recovery of demised premises for the non-payment of rent, the service of the declaration shall be “ deemed and stand instead of a demand,” dec.

II. With regard to the second objection, no notice of re-entry is necessary by common law, or by statute, except where there is a sufficiency of goods and chattels on the premises for the satisfaction of the rent. The act of 1846,(a) requires that fifteen days’ notice in writing, of the intention to re-enter, must be given. It is unnecessary to consider whether this provision of the act of 1846 applies to a case where the lease" was executed before it was passed, (see Williams v. Potter, 2 Barb. S. C. R. 316,) because, on the face of the complaint, it is evident that there was not a sufficiency of goods to satisfy the demand. It is expressly alleged that the premises consisted of “ a water lot, vacant ground, and soil under water.” After such an allegation, to add that there was not a sufficiency of goods on the premises to satisfy the demand, seems to be unnecessary; and it is possible, if made, it might have induced some members of the profession, if the defendants happened to employ such, to move to have it stricken out as redundant, with $10 costs of the motion.

I think the complaint in all respects sufficient, and that the order made at special term should be affirmed, with costs.

Mitchell, Roosevelt and Clerke, Justices.]