Thomas J. Powers, Jr., as Agent for Landlord, Appellant, v. V. Activo De O., Tenant, Respondent

Thomas J. Powers, Jr., as Agent for Landlord, Appellant, v. V. Activo De O., Tenant, Respondent. Notice in summary proceedings—it may be signed by the landlord's agent — a precept dated more than fire days, but actually issued three days, before the return day is ralid. A notice served under section 2231 of the Code of Civil Procedure requiring a tenant to pay his rent within three days or to surrender possession of the demised premises may properly be signed by the agent for the landlord. A precept in summary proceedings dated more than five days before the return day, but actually issued three days before the return day, is not void under section 2238 of the Code of Civil Procedure, which requires that “ the precept must be returnable not less than three or more than five days after it is issued.” Appeal by the plaintiff, Thomas J. Powers, Jr., as agent for landlord, from a judgment of the County Court of Westchester county in favor of the defendant, bearing date the 23d day of March, 1901,- and entered in the office of the clerk of the county of Westchester, reversing a final order made by a justice of the peace of the town of Cortlandt, in said county, awarding to the plaintiff possession of real estate in summary proceedings. Nathan P. Bushnell, for the appellant. Marvin R. Smith, for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: On the hearing before the justice of the peace the defendant made defense upon .technical points" only, and the decision of the justice appears to be fully justified by the law and facts. The final order granted in favor of the petitioner as agent, awarding possession of the lands of his principal, then in the possession of the respondent as tenant, has been reversed in the County. Court. Mo •opinion was written on such reversal, and we aré accordingly unaware of the grounds of that court’s action. The points presented by the respondent appear untenable, and we are unable to discover any flaw in the proceedings tending to vitiate the order granted by the magistrate. The main question urged is that the proceedings cannot be maintained in the name of the agent of the landlord. Section 2235 of the Code of Civil Procedure expressly authorizes the agent of the landlord to make the application for the removal of the tenant, and in Case v. Porterfield (54 App. Div. 109) we held that this authority included the light to entitle the proceedings and to issue the precept in the agent’s name. The logic of that decision requires us to hold also that the notice in this case was a sufficient compliance with the requirements of section 2231, although signed by the agent. (See, also, People ex rel. Grissler v. Stuyvesant, 1 Hun, 102, 107; Reeder v. Sayre, 70 N. Y. 180, 188.) The evidence sufficiently establishes the actual agency of the petitioner, and & prima facie case was made out warranting the relief granted. • It is claimed that the precept was void because dated more than five days before its return. It was returnable December fourteenth and dated December eighth ; but it was actually issued on December eleventh, the day on which the petition was verified, and the date was a clerical error. The language of the Code (§ 2238) is that “ the precept must be returnable not less than three nor more than five days after it is issued,” and the precept in question complied with that condition. The other objections'urged do not require discussion. The judgment should be reversed and the possession of the property should be awarded to the landlord in accordance with the justice’s order, with costs. Goodrich, P. J., Woodward, Jenks and Sewell, JJ., concurred. .■ Judgment of the County Court of Westchester county reversed and possession of the premises awarded to the appellant,, with costs.,.