Hecht Co. v. Kuerner

Hecht, J.

(dissenting). It appears on the face of the affidavit of the landlord’s attorney in opposition to the motion to vacate the final order entered on consent that the attorney “ caused to be served on the tenant ” a notice to vacate the premises within 30 days from the date of the receipt of the notice ” which notice, affiant states, was received by the tenant on or before March 11,1946; and it is undisputed that the notice was served by mail.

The tenant held over as a statutory tenant, paying the rent monthly in advance for February and March, 1946, and the summary proceeding was begun April 2,1946.

Section 232-a of the Beal Property Law provides that no monthly tenant or tenant from month to month in the city of New York shall be removed unless at least thirty days before the expiration of his term the landlord serves upon him a notice in writing in the same manner as a precept in summary proceedings is allowed to be served by law that unless he removes when Ms term expires the landlord will commence a proceeding under the statute for his removal.

Manifestly there was no compliance with the statute in tMs instance, for the tenant’s monthly term, renewed by holding over, had not expired when the proceeding was begun, and, as stated, the notice was served by mail.

In Beach v. Nixon (9 N. Y. 35), a summary proceeding for holding over the term based on breach of condition, the court said (p. 37): The only remaining point is whether the covenant contained at the end of the lease either confers jurisdiction to *523proceed under the statute in respect to summary proceedings, or precludes the lessee from objecting for the want of jurisdiction. The law and not the consent of parties confers jurisdiction, and that rule could have no practical force, if consent given in whatever form could preclude inquiry as to the lawfulness of the jurisdiction.” Insofar as the question presented on this appeal is concerned the jurisdiction of the Municipal Court is simply jurisdiction in “ a summary proceeding authorized by the civil practice act to recover possession of real property ” (N. Y. City Mun. Ct. Code, § 6, subd. 2; L. 1915, eh. 279), and that court is bound by the controlling decisions with respect to jurisdiction of the subject matter, as distinguished from jurisdiction of the person, in such proceedings (Riesenfeld, Inc., v. R W Realty Co., Inc., 223 App. Div. 140; Kleinstein v. Gonsky, 134 App. Div. 266; Gilroy v. Becker, 186 Misc. 93).

Further, in this instance the tenant’s consent was a waiver of the provisions of the emergency statute in that (1) under that act the tenant was entitled to remain in possession as long as he paid the rent, and (2) resort to eviction, under the exception permitting such proceeding, was conditioned upon the termination of the statutory monthly tenancy following the expiration of the lease; and by section 12 of the Act any waiver of its provisions “ shall be unenforceable and void ” as matter of public policy (L. 1945, eh. 315).

There was no element of estoppel here, as in Hoske v. Gentzlinger (87 Hun 3) and A. N. P. Realty Co., Inc., v. Tunick (115 Misc. 190), where the tenant had given prior notice to the landlord that he would quit the premises at the end of the month. (See Rogan v. Weiss, 115 Misc. 193.)

The order should be reversed, with $10 costs, and motion granted, and final order vacated.

Hammer, J., concurs with Shiextag, J.; Heóht, J., dissents in opinion.

Orders affirmed.