The action was ejectment by re-entry for the non-payment of rent. On the trial .before a referee, the plaintiff was nonsuited and the complaint dismissed, because of the omission to allege and prove the giving of the fifteen days’ notice provided for by section 1505 of the Code of Civil Procedure, which superseded section 3 of chapter 274, Session Laws of 1846.
This ruling seems well sustained by several decisions in the Court of Appeals, both directly and inferentialiy. (Van Rensselaer v. Snyder, 13 N. Y., 299; Same v. Ball, 19 id., 100, on page 108; Same v. Slingerland, 26 id., 580 ; Hosford v. Ballard, 39 id., 147, on page 152.) The provisions in the leases here counted on, giving the right of re-entry, are, as will be seen on examination and comparison, precisely the same as in the three cases first above cited.. Those cases are, as is also Hosford v. Ballard (supra), to the effect that on a lease conditioned as are these, the right of re-entry for non-payment of rent is made to depend on the service of the fifteen days’ notice before suit. We do not deem this question open here to discussion.
It should bo noted that when the right to re-enter arises on default of payment of rent, and is not made to depend on a sufficiency of goods, whereon to distrain, the fifteen days’ notice is unnecessary. (Hosford v. Ballard, supra; Cruger v. McLaury, *37341 N. Y., 219.) Such, however, according to the decisions first above cited, is not this case. Here, as is there held, the right to re-enter was given in case no sufficient distress could be found upon the premises to satisy the rent in arrear. The right to re-enter did not arise simply on an omission to pay the rent reserved and agreed to be paid. It is true the provision following that giving the right to re-enter for failure of distress, also in terms gives such right, “if either of the covenants and conditions hereinbefore contained * * * shall not be performed, fulfilled and kept, or shall be broken,” one of which covenants was for the payment of rent at the time specified; and it is urged by the appellant’s counsel that, under this provision, the right of re-entry is preserved to the landlord, independent of the other right given him in case of failure of distress. This contention seems to be sustained by the remarks of Jewett, Ch. J., in Van Rensselaer v. Jewett (2 N. Y., 141, on page 146). Whether these remarks were or were not concurred in by the other members of the court is not made directly to appear, although such would be the inference probably, and they would doubtless be controlling in this court, in the absence of any later case in the Court of Appeals holding them unsound. But the later cases, particularly the first three above cited, wherein the provisions of the leases there considered were the same as here, hold, as it seems, to a different construction of the proviso, and assert the rule to be that, under the provisions contained in the lease here counted on, the fifteen days’ notice is made essential to the right of action in ejectment for non-payment of rent. We are of the opinion that the question here presented is determined favorably to the defendant by the cases cited.
The judgment should be affirmed, with costs.
Learned, P. J., concurred.