(dissenting). This is an appeal from a final order made in a summary proceeding. The lease under which the tenant was in possession called for a term of twenty years, beginning Hovember 1, 1902,' and it provided for the payment of an annual rental of about $15,000. The petition prayed for a final order to remove the tenant from the premises for nonpayment of taxes and default in payment of an installment of rent past due. The petition does not allege, nor is any claim made, that a demand for rent was made as provided for in subdivision 1, section 2231 of the Code of *633Civil Procedure, but it does set out that a three days’ notice in writing, calling for the alternative proposition of the payment of rent or possession of the premises, was served on the person owing it, and upon the face of the petition it is patent that this service was not made as required by law. The service of this notice must be made in the same manner as the service of a precept, as provided in section 2240 of the Code, and a strict compliance with the statute is absolutely necessary. Beach v. McGovern, 41 App. Div. 381. The defect in this petition is a fatal one, because the fact of the demand in one of the ways prescribed by section 2240 is a jurisdictional fact which the petitioner must establish in order to get his warranty and it is not incumbent upon the tenant to show that he did not receive any such demand or notice. Tolman v. Heading, 11 App. Div. 264. ' Some suggestion is offered that by appearance the defendant waived the defect and subjected itself to the jurisdiction, but in the face of this record I cannot reason this out or agree with any such conclusion. In the face of a direct motion to dismiss because of “ jurisdictional defects contained in the petition,” which motion was denied, I do not see what there remained to be done, unless that the tenant should abandon the case, an attitude he was not called upon to take. Baird v. Helfer, 42 N. Y. Supp. 484. This aside from the fact that it has been distinctly held, that a question involving the jurisdiction of the court below must be considered, although raised for the first time on appeal. Matter of Stuyvesant Real Estate Co., 40 Misc. Rep. 205. It follows, therefore, that the court was without jurisdiction and the order was absolutely void. While this would render unnecessary any further review of the case, still there remains a feature that should be referred to if only to emphasize the fact that those proceedings should be set aside.. The petition, as has already been stated, prays for the removal of the tenant for nonpayment of taxes as well as nonpayment of rent, and although proof of the payment of taxes was adduced and leaves the fact that they were paid absolutely uncontradicted, and still further that notwithstanding that the court’s attention was called to the drastic effect that an order reciting the removal *634being made for nonpayment of taxes would entail, still all things to the contrary notwithstanding, the court entered just such an order and issued a warrant of dispossess which is executed upon the provisions of that order. How can we uphold such a proceeding? It is not a mere irregularity. Under section 2256 of the Code where a tenant is dispossessed for nonpayment of rent a tenant would have the right of redemption, but if a tenant be dispossessed for nonpayment of taxes there would be no right of redemption (Witty v. Acton, 58 Hun, 552), and in the case at bar stands a possessor of a leasehold estate having a term of twenty years to run and deprived of that with no right of redemption, and not a particle of proof upon which- to base such a judgment. I cannot assent that a curative process for this wrong is to be found in any direction by the court, of amendment of the order, the warrant has been executed and it is altogether too questionable a remedy to subject the tenant to.
The order should be reversed, the warrant vacated, and restitution awarded, with costs.
Final order affirmed, with costs.