F. & P. Management Co. v. Bergere

CourtNew York City Municipal Court
Writing for the CourtARTHUR A. KLOTZ
Citation222 N.Y.S.2d 962
PartiesF. & P. MANAGEMENT CO., etc., Landlord, v. Amelie BERGERE, Tenant.
Decision Date26 December 1961

Page 962

222 N.Y.S.2d 962
F. & P. MANAGEMENT CO., etc., Landlord,
v.
Amelie BERGERE, Tenant.
Municipal Court of City of New York, Borough of Manhattan,
Ninth District.
Dec. 26, 1961.

Page 963

Warren L. Schnur, New York City, for landlord.

Arthur F. Lamanda, New York City, for tenant.

ARTHUR A. KLOTZ, Justice.

The tenant seeks to vacate and set aside a final order entered in these summary proceedings on December 6, 1961.

The proceeding was brought for non-payment of rent for the month of November, 1961. It appears that prior thereto the tenant left this City for Paris, France, and claims to have informed the superintendent and other help of the building to forward mail to her, care of the American Embassy in Paris, France.

She has been a tenant of the premises involved for upwards of twenty years.

On November 9, 1961, the American Consul in Paris, France, wrote to the landlord advising that the tenant because of illness could not make banking arrangements to remit the rent for her apartment, and that as a result there would be a short delay in her forwarding the rent.

On November 20, 1961, a petition and precept for non-payment of rent was served upon the tenant by conspicuous service and by mail to her residence at 125 East 72nd Street, New York City, although the landlord had already been notified in writing and knew that the tenant was in Paris, France, and that communications should be addressed to her, care of the American Consul there.

Thereafter and on November 29, 1961, the American Consul again wrote to the landlord transmitting on behalf of the tenant the sum of $340.58 by First National City Bank checks for November and December, 1961, rent. This tender was refused. At this point it should be noted that Civil Practice Act, § 1421, provides that service in accordance with Subdivision b thereof is completed upon filing proof thereof with the Clerk of the court. In this case this was done on November 24, 1961. The tenant, therefore, would have had until December 4, 1961, to pay the rent due even if the proceeding had been validly instituted.

Despite this, the landlord applied for and obtained a final order by default.

Page 964

A perusal of the filed papers indicates that the service of the petition and precept was made on November 20, 1961, eleven (11) days after the American Consul first wrote to the landlord. Aside the actual notice which the tenant claims the landlord had of her sojourn in France and the request that all...

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1 practice notes
  • 417 East Realty Associates v. Ryan
    • United States
    • New York City Court
    • August 19, 1981
    ...in accordance with the only similar prior reported case that the Court's research has uncovered. In F & P Management Co. v. Bergere, 222 N.Y.S.2d 962 (Municipal Ct., NY Co., 9th Dist., 1962, Klotz, J., n.o.r.), a long-time New York City domiciled tenant went to Paris, France, got ill an......
1 cases
  • 417 East Realty Associates v. Ryan
    • United States
    • New York City Court
    • August 19, 1981
    ...in accordance with the only similar prior reported case that the Court's research has uncovered. In F & P Management Co. v. Bergere, 222 N.Y.S.2d 962 (Municipal Ct., NY Co., 9th Dist., 1962, Klotz, J., n.o.r.), a long-time New York City domiciled tenant went to Paris, France, got ill an......

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