Chuck

This is an action of unlawful detainer. It is the same case as No. 13088, decision this day filed (ante, p. 592); but the appeal herein is from an order denying the defendant’s motion for a new trial, from an order made after final judgment denying the defendant’s motion to vacate and set asidethe judgment from which an appeal was taken in No. 13088, and from an order refusing defendant’s motion to strike out the plaintiff’s cost-bill.

The last two orders referred to are non-appealable. The appeal therefrom is therefore dismissed. (Eureka etc. R. R. Co. v. McGrath, 74 Cal. 49 .)

It is claimed by the appellant that the complaint does not state a cause of action against the defendant, because there is no allegation that the defendant was given the three days’ notice required by section 1161 of the Code of Civil Procedure. But the tenancy alleged in the complaint is a tenancy at sufferance, and not at will; and as the action is based upon the first subdivision of the section referred to, no notice was required. (Canning v . Fibush, 77 Cal. 196 ; Stoppelkamp v. Mangeot, 42 Cal. 322 .) It is also claimed by appellant that Chay Yune should have been made a party plaintiff, because…