#### Witherbee, Sherman & Company, Landlord, Appellant, *v.*Harry B. Wykes, Tenant, Respondent.

Third Department,

November 12, 1913.

Landlord and tenant — summary proceedings—petition of landlord— failure to allege due service of notice—notice to terminate indefinite tenancy — restitution — damages for unauthorized order of dispossession.

Under section 3336 of the Code of Civil Procedure, requiring a petitioner for a final order awarding possession to “state the facts showing that the tenancy has been terminated by giving notice as required by law,” a mere allegation of service of notice, without alleging the manner of service or that the same was duly made, is insufficient to give the justice jurisdiction to grant the order.

A landlord, in order to terminate an indefinite tenancy from month to month, must give notice to surrender at the end of the month.

The right to award restitution to a tenant under section 3363 of the Code of Civil Procedure is discretionary.

A tenant has the right to recover under section 3363 of the Code of Civil Procedure such damages as he has sustained by an unauthorized order of dispossession.

Appeal by the petitioner, Witherbee, Sherman & Company, from an order of the Essex County Court, entered in the office of the clerk of the county of Essex on the 14th day of July, 1913, reversing a final order of a justice of the peace in summary proceedings, dated March 11,1913. .

*25*Stokes & Owen [Harry E. Owen*of counsel], for the appellant.

*Robert W. Fisher,*for the respondent.

Smith, P. J.:

By the final order of the justice the petitioner as landlord was awarded possession of certain premises rented by the respondent. In the petition it is stated:

“That on or about the 1st day of August, 1904, your petitioner as landlord let and rented said premises unto Harry B. Wykes at the rate of $4 per month from the said 1st day of August, 1904, for no fixed period, which said term has expired.

“ IV. That your petitioner caused on the 20th day of January, 1913, a notice in writing to be served on- said tenant requiring him to remove from said premises within thirty days from the date of the service thereof. That the time within which said tenant was required to remove from said premises has expired. That the said tenant holds over and continues in possession of said premises after the expiration of his said term without the permission of your petitioner, his said landlord.”

The County Court has reversed the final order awarding possession to the petitioner, upon the ground that the petition did not state facts sufficient to give jurisdiction to the justice to make the order (81 Misc. Rep. 474). By section 2236 of the Code of Civil Procedure the petitioner is required to “state the facts showing that the tenancy has been terminated by giving notice as required by law.” The Beal Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], § 228) prescribes certain methods by which this notice to surrender may be given. The petition does not show that any one of those methods so prescribed was adopted. For anything that appears in the petition the notice may have been served by mail, which would not be sufficient to terminate this tenancy. The County Court was, therefore, right in holding that a mere allegation of service of notice, without alleging the manner of service or alleging that the same was duly made, was insufficient to give jurisdiction to the justice to grant the order of removal.

*26The County Court might well have put its decision also upon the ground that the notice was not sufficient, even though properly served. The tenancy is clearly an indefinite tenancy from month to month, and, under the authorities, a notice terminating such tenancy must give notice to surrender at the end of the month. *(People ex rel. Botsford*v. *Darling,*47 N. Y. 666.)

By section 2263 of the Code of Civil Procedure the court is authorized to award restitution, and such restitution was directed in the order here appealed from. The contention of the petitioner is that such restitution cannot be directed except upon six days’ notice under section 3058 of the Code of Civil Procedure. As I view the case, it is not necessary to decide that question here. The right to award restitution is discretionary. The landlord has the clear right by serving proper notice to terminate that tenancy. I cannot conceive that it would be profitable either for the landlord or for the tenant to restore possession of the premises to the tenant in this case from which he must he ousted as soon as the regular notice could be served. Under section 2263 the tenant has the right to recover such damages as he has sustained by the unauthorized order of the justice, and in my judgment he should be remitted to this remedy by which he can get full compensation for any injury which he has suffered. The order of the County Court should, therefore, he modified so as to strike therefrom direction as to restitution, and as modified should be affirmed, with costs to respondent.

All concurred.

Order modified so as to strike therefrom the direction as to restitution, and as so modified affirmed, with costs to respondent.