
    Charles A. Bristed, Respondent, v. Claudius E. Harrell, Appellant.
    (Supreme Court, Appellate Term,
    May, 1897.)
    1. Summary proceedings — Petition —.Jurisdiction.
    A petition in summary proceedings which does not show the expiration of three days since the service of the alternative notice on the tenant is premature and insufficient to confer, jurisdiction.
    33. Same — liotice — Time.
    Where the notice was served on the 29th day of December and the 1st of January fell on Sunday, a petition made on the 2d of January is premature and will not. support proceedings, although the precept is not issued until the ,4th of January.
    Appeal from final order in summary proceedings, made by the justice of the Sixth Judicial District Court in favor of the landlord.
    George C. Lay, for appellant.
    Charles A. Bristed, for respondent.
   Bischoff, J.

These proceedings were instituted by the landlord-respondent for the possession of certain premises, held by the tenant-appellant, upon a petition which alleged the nonpayment of rent due under a written lease and the service upon the tenant of a demand for payment within three days as an alternative to the landlord’s proceeding to recover possession under the statute.

At the trial the tenant made a motion for the dismissal of the proceedings because prematurely brought, in that the statutory three days’ notice had not expired at the date of the petition, and,, this motion having been denied, the tenant went into no evidence upon merits, but consistently objected to any proof on behalf of the landlord tending to show an actual previous demand for the rent.

Upon the plaintiffs evidence a final order was rendered in his favor.and the point presented by this appeal is solely as to the sufficiency of the allegations of the petition to give the District Court jurisdiction of the proceedings.

To our1 minds the appellant’s position appears to be well taken, since the petition clearly failed to satisfy the statutory requirements,, and, in view of the objections interposéd, there was no consent by the tenant to the trial of issues other than those presented bv the allegations.

Summary proceedings, for nonpayment of rent, may be founded either upon an actual demand for the rent or upon an alternative notice of three days, such as was here alleged (Code Civ. Pro., § 2231, subd. 2), and the petition must state the facts upon which the matter is thus based (Code Civ. Pro., § 2235), failing a proper statement of which it is insufficient to give jurisdiction. People ex rel. Morgan v. Keteltas, 12 Hun, 67; People v. Platt, 43 Barb. 116.

Here the notice was served upon the 29th day of December,. 1896, and the petition was verified the 2d day of January, 1897.

The Statutory Construction Law (Laws 1892, chap. 677, § 29, as amended by Laws 1894, chap. 447) provides: “A number of days specified as a period from a certain day within which or after or before which an act is authorized or required tó be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. Sunday or a public holiday, other than a half holiday, must be excluded from the reckoning if it is the last day of any such period. * * * The day from which any specified number of days, weeks or months of time is reckoned shall bo excluded in making the reckoning.”

Excluding the day of service, the three days’' notice in question expired with the 1st day of January, 1897, but this day was a public holiday (Laws 1895, chap. 603, § 1), and, accordingly, the tenant had the whole of the succeeding day, January 2d, in which to make the-payment.

Upon that day, however, the petition, which was the foundation of the proceeding, was made and this was before the landlord’s right- to dispossess the tenant, as alleged, accrued Under the statute.

Therefore, the petition did not comply with the act (Code Civ. Pro., §§ 2231, 2235), and presented no ground for the- maintenance of -the proceeding (cases supra).

The fact that the precept was issued upon January 4th does not aid the respondent, since the jurisdiction of the justice depended upon a statement in. the petition of the proper jurisdictional facts, one of which was the tenant’s default after the expiration of the three days’ notice, and, upon its face, the petition- was defective in this regard, the default being an impossibility at the date of the allegation. . '

Final order reversed, with costs.

Dalt, P. J., and MoAdam, J., concur.

Final order reversed, with costs.  