Mordant v. Niles

Headnote

Summary Proceedings.

In summary proceedings under 2 B. S. 513, a default taken at the time mentioned in the summons, without waiting the hour allowed by law in justices’ courts, is valid, and a court of. equity will not enjoin its enforcement.

Motion for injunction.

The defendant, Niles, was the owner of certain real estate in the city of New York, which was sold for taxes, and afterwards taken forcible possession of by the plaintiff under the tax title from the city. After the plaintiff had been in possession for some time, the defendant began summary proceedings in one of the district courts

to obtain possession, and secured judgment in Ms favor. TMs was reversed on certiorari, and the plaintiff restored to possession by the sheriff. The plaintiff held possession for about two months, when the defendant again instituted summary proceedings, the return to be made at nine o’clock in the morning, before the district court judge. Mordant’s attorney failed to reach the court until half-past nine, when he found that judgment had already been rendered, and a warrant issued against his client. The justice refused to open the default, and thereupon Mordant brought the present action, and obtained an order to show cause why the defendant and justice should not be enjoined from executing the warrant.

relied on 2 R. S. 233 [6th Ed. p. 406], § 44 [46], that,—“ Upon the return of a summons personally served, or on the return of an attachment duly served, the justice shall wait one hour after the time specified for the return of such process, unless the parties shall sooner appear.”