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Luhrs v. Commoss

13 Abb. N. Cas. 88 Court N. Y. Supreme Court, Second District, Second Department; General Term, English

Delivered by Dykman, J.

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p. 88
LUHRS v. COMMOSS.
N. Y. Supreme Court, Second District, Second Department; General Term,
September, 1883.

Headnote

Summary Proceedings.—Landlord and Tenant.—Precept, when Returnable.—Oodb Ciy. Pro. § 2238.
The precept to dispossess a tenant holding over after the expiration of the term must be made returnable not less than three nor more than five days after issue, unless it is made returnable on the day of issue. A precept for that purpose returnable the day after issue is not authorized by the statute, and therefore gives no jurisdiction.
On the return day of a precept which, by reason of varying from the statute in respect of the time for its return, did not suffice to give jurisdiction, the tenant entered the court-room, and, without offering to answer, simply showed to the magistrate a physician’s certificate that his wife was sick, and thereupon left the room,—Held, that this was not an appearance which could give jurisdiction.[1]
Appeal by the defendant to the General Term of the supreme court from an order of the county court of Kings county, reversing the final order of a justice’s court of the city of Brooklyn, dispossessing the defendant, from certain premises demised to him by the plaintiff, Elizabeth Luhrs, upon the return of the usual dispossess summons or precept in the justice’s court.
Commoss appeared, in the mode stated in the following opinion, and the justice then granted said Elizabeth Luhrs judgment,that Commoss held over after the expiration of the demised term, without permission, and awarding possession of the demised premises to her. Commoss appealed, to the county court, which
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reversed the justice’s judgment, when Elizabeth Luhrs now appealed to the general term of the supreme court from the order of reversal.
A. H. Dailey, for appellant.
I. The justice had jurisdiction to make the precept returnable the day it was issued (§ 2238, Code Civ. Pro.), or any day within five days after issuance thereof (Russell v. Ostrander, 30 How. Pr. 93 ; 2 Crary Spec. Pro. 295).
II. The appearance of the tenant on the return corrects any defects in the precept.
Thomas E. Pearsall (Morris & Pearsall, attorneys), for respondent.
I. The order of the county court reversing the justice’s judgment was right. The justice had no authority to make the precept returnable on the next day after the issuance thereof (Code Civ. Pro. § 2238 ; People ex rel. Leary v. Lane, 2 Sup'm Ct. [T. & C.] 522 ; King v. Dowdall, 2 Sandf. 131 ).
II. Russell v. Ostrander arose under the Revised Statutes and has no application under the Code of Civil Procedure.

This was a summary proceeding for the removal of a tenant. The premises were rented to the defendant, by the plaintiff, on the seventeenth day of February, 1882, for the term of one month, and by the month from that time. On June 17, 1882, she caused notice to be served on him requiring him to remove on July 17, 1882 ; on that day she procured a summons for his removal, returnable July 18, 1882.

The statute is : 66 The precept must be returnable not less than three nor more than five days after it is issued, except that where the proceeding is taken upon the ground that a tenant continues in possession of demised premises after the expiration of his term, without permission of his landlord, and the application is made on the day of the expiration of the lease, or on

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the next day thereafter, the precept may, in the discretion of the judge or justice, be made returnable on the day on which it is issued, at any time after twelve o’clock, and before six in the afternoon (Qode,-% 2238).

It will be seen, therefore, that it was competent for the justice to make-the precept in this proceeding returnable on the day on which it was issued, or not less than three nor more than five days thereafter, but not the next day.

These statutory proceedings are quite technical, and . the statutes must be strictly pursued. There is no authority for such a summons as that issued in this case.

The petition presented to the magistrate was sufficient to bestow jurisdiction of the subject, but it required a regular precept, properly served, or a voluntary appearance, to confer jurisdiction of the person. The summons issued was irregular and insufficient, and could not form the basis of any judicial proceeding.

Neither was There any appearance to give jurisdiction over the person.

The return of the justice states that “ the defendant, without offering to put in a written answer, showed me a physician’s certificate that defendant’s wife was sick ; I told him if he wanted to have an adjournment or a trial of the matter he must file a written and sworn answer, which he failed to do, and he then immediately left the court-room.”

He did nothing more than enter the court-room, show the certificate to the magistrate, and leave the room, without uttering a word. This was not an appearance in the action, and so no jurisdiction was obtained of the person of the defendant.

The judgment of the county court should be affirmed, with costs.

Judgment affirmed.

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