
    Charles A. Bristed, Respondent, v. Claudius E. Harrell, Appellant.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Summary proceedings — Reversal of final order and restitution.
    Where a final order, in summary proceedings, awarding the pos» session of the premises to the landlord, is reversed upon appeal for a jurisdictional defect, in that the petition was hot founded upon the proper statutory notice, the order for reversal should provide for the restitution of the tenant, to the end-that the parties may he placed In statu quo.
    
    Memorandum on settlement of order of reversal.
    Charles C. Lay, for appellant.
    Charles A. Bristed, for respondent.
   Per Curiam.

The final order herein awarding possession to the landlord was reversed for lack of jurisdiction in the justice to make it, because the petition was not founded upon the giving of the proper statutory notice. 20 Misc. Rep. 348.

The tenant asks that a direction for restitution be incorporated in the order and we are disposed to make such direction.

While the nature of the defense which the tenant may have to the demand for rent is not now disclosed, still the demand was not properly the subject of inquiry in the proceedings had before the justice, whose jurisdiction over the case was fundamentally infirm.

The reversal of the final order proceeded upon something more than a mere "irregularity, as in People v. Livermore, 15 Abb. 323; here the defect was jurisdictional, and in such cases the necessity of awarding restitution appears to have been recognized. People ex rel. Simpson v. Platt, 43 Barb. 116; People ex rel. Morgan v. Keteltas, 12 Hun, 67.

We cannot assume that the merits were with the landlord, since there has been no authorized adjudication upon the merits, and the parties should be placed in statu quo.

Order signed as presented.

Present: Daly, P. J., Bischoff, and McAdam, JJ.  