Deutermann v. Wilson — 14 Daly (N.Y.) 563

Majority

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William Deutermann et al., Appellants, against Ann Wilson, Respondent.

(Decided December 3d, 1888.)

Headnote

On the return day of a precept, issued by the clerk of a district court in the City of New York in a summary proceeding for recovery of possession of demised premises, no justice being present, the clerk, of his own motion, after noting the presence of the landlord and nonappearance of the tenant, adjourned the cause. No answer was filed by the tenant. The justice not being present at the adjourned day, the clerk in like manner again adjourned the cause. On the latter adjourned day the justice and both parties were present, and the tenant presented his answer. To this the landlord objected, and asked judgment by default. The right to judgment by default was disputed, and the justice adjourned the cause. He was not present on the adjourned day, and the clerk again adjourned the cause. On the latter adjourned day, the justice, after hearing, denied the landlord’s motion for judgment by default, and allowed the tenant’s answer to stand. On a subsequent hearing judgment was given for the tenant. Held, that the tenant was not in default for not appearing in the absence of the justice ; that the clerk had power, under section 1292 of the Consolidation Act, to adjourn the cause in the absence of the justice; and that the justice did not err in receiving the answer when he did, and entering final judgment for the tenant on the merits.

Appeal from a final order of the District Court in the City of New York for the Second Judicial District, in summary proceedings to recover the possession of real property.

The facts are stated in the opinion.

II. Ketohum, for appellants.

O. K. Lexow, for respondent.

—On the 2d of August, 1888, the clerk of the District Court in the City of New York for the Second Judicial

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District, at the request of the appellants and on their petition as landlords, issued a precept requiring the respondent as tenant to show cause at the court room of the Second District Court at 3 o’clock in the afternoon of the same day, why the possession of a portion of 147 Grand Street should not he delivered to the landlords. This precept was duly served on the tenant.

The justice of the district court was not present at the time and place specified in the precept, nor was any justice of any other district court present, and the clerk, of his own motion, after noting the presence of the landlords and the non-appearance of the tenant, adjourned the cause until the 6th of August. No answer was filed at that time.

On the 6th of August no justice was present, and the clerk again, on his own motion, adjourned- the cause until the 8th of August.

On the last-named day the justice was present, as were also the landlords and the tenant, and the latter then presented her answer to the petition. To this the landlords objected and demanded a final order in their favor on the ground that the tenant was in default in not appearing on the return day. Tins was disputed by the tenant, and the court adjourned the cause until the 35th of August, and on that day, there being no justice present, the clerk adjourned the matter until the 22d of August.

On the 22d of August the justice denied the motion of the landlords for a final order, allowed the tenant’s answer to stand, tried the case, and thereafter made a final order in the tenant’s favor. From this order the present appeal is taken.

The appellants contend that neither the justice nor the clerk had power to adjourn the proceedings until the tenant’s answer was filed, and as the latter failed to do this on the return day, they became entitled to a final order absolutely; citing sections 2244, 2248, and 2249 of the Code in support of this view.

Section 2244 provides that, “ At the time when the. precept is returnable, without waiting as prescribed in an action

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. . . in. a district court of the City of New York, the person to whom it is directed . . . may file with the judge or justice who issued the precept, or with the clerk of the court, a written answer verified in like manner as a verified answer in an action in the Supreme Court.” This provision is permissive only and not mandatory. The tenant is not bound by it to so file his answer, and in many cases he would deprive himself of valuable rights by so doing, as, under the rule uniformly enforced in those courts, he would thereby waive all technical objections to the jurisdiction of the justice, the sufficiency of the petition upon which the precept issued, as well as to the precept itself, and also to the previous notice in those cases in which notice to quit is required as a prerequisite to the obtaining of a precept.

The proceeding, being a statutory one, must he strictly construed, and any material defect in the papers will justify the justice in dismissing it. We think this section merely gives the tenant an option to file the answer or to wait until the justice arrives, when he may first object to the jurisdiction of the court, the sufficiency of the petition, notice, etc., and then, if these objections are overruled, he may file his answer.

Section 2248 provides, “ At the time when issue is joined the judge or justice may, in his discretion, at the request of either party, and upon proof to his satisfaction ... by consent of all the parties who appear, adjourn the trial of the issue. . . .”

Section 2249 provides, “ If sufficient cause is not shown upon the return of the precept . . . the judge or justice must make a final order awarding to the petitioner the delivery of the possession of the property. . . .”

But, as we have before shown, the tenant is not bound to file his or her answer in the absence of the justice; much less is he required to show cause before the clerk; for even in ordinary actions, unless it is expressly given by statute, the latter has no power to compel the joinder of issue (Meech v. Brown, 1 Hilt. 257). The tenant is required to show cause to the justice only.

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There is one other section directly applicable to the adjournment of summary proceedings in district courts, and that is section 2239, which provides, “ ... if upon the return of the precept, or upon an adjourned day, the justice is unable, by reason of absence from the court room or sickness, to hear the cause, or it is shown by affidavit that he is for any reason disqualified to sit in the cause, or is a necessary and material witness for either party, a justice of any other district court of the city may act in his place at the same court room.”

These are the only provisions of the Code expressly relating to the adjournment of summary proceedings, and it will be seen that by them the power of adjournment is given to the justice only, and not to the clerk in any case, either before or after issue joined. It will also be observed that all the proceedings must be had in the court room of the court where they were originally commenced.

No justice being present on the return day, and no provision having been made by the Code as to what shall be done respecting these proceedings in his absence, we think the tenant is not bound to appear from day to day until he comes; and under such circumstances the proceedings fall entirely (as was the case in ordinary actions in district courts, before power was given the clerk to adjourn the court in the absence of the justice), unless the clerk has the same power to adjourn them that he has to adjourn actions in these courts.

Section 1292 of the Consolidation Act (L. 1882 c. 410), provides, “ . . . whenever the justice fails to attend, the clerk may adjournin' the same manner as the justice might have done.” That is, in the same way or mode, not in the same cases, a justice might have done, for we concede a justice could not adjourn without an answer being filed, but this the clerk- has no power to require. Section 1292 is but a re-enactment of section 6, chapter 344, Laws 1857.

Section 1358 of the Consolidation Act, which professes to be merely a re-enactment of section 2259 of the Code of Civil Procedure, before referred to, reads “ ... If upon

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the return of the precept or upon an adjourned day, the justice is unable, by reason of absence from the court room or sickness, to hear the cause, and it is not adjourned by the clerk in accordance with section 1292 of this act ... a justice of any other district court of the city may act,” etc.

This would be entirely conclusive upon the question of the clerk’s power to adjourn these proceedings, were it not that section 2143 of the Consolidation Act says, enumerating a large number of preceding sections, including 1358, “ these sections, being intended only to contain the substance of certain sections of the Code of Civil Procedure . . . or of amendments thereof, shall not be construed as making any new enactment or as repealing, modifying, amending, or superseding any provision of either of said Codes or any amendment thereof, but shall be treated and considered as embraced in this act solely that it may contain all provisions of existing laws which are of special application to the City of New York.” So that the words in italics cannot be construed as making any change in the Code of Civil Procedure.

But is it not equally conclusive, as showing the interpretation which the legislature put upon its former enactment, and that it intended thereby that summary proceedings instituted in district courts should be subject to all the provisions in respect to the mode of procedure prescribed for actions in such courts except as otherwise prescribed by statute ? Else why insert the words in italics ? They are ineffective as new legislation, and can be rendered effective only as showing the legislative intent of the former enactment. In accordance with this view it has been held, where summary proceedings were commenced before a justice of the peace, that all the provisions in respect to the mode of procedure in justices’ courts apply to such proceedings (People ex rel. White v. Loomis, 27 Hun 328 ).

If the legislature did not intend that this proceeding should be subject to the procedure in actions in district courts, then it has utterly failed to limit the time within which the final order must be made by a justice of a district

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court, as there is no provision in the Code limiting that time; although the legislature carefully restricts such courts to a specified time in which to do acts in other cases.

Section 3120 of the Code expressly gives the power of adjournment to the clerks of district courts in the City of Brooklyn, and it is difficult to see why the legislature intended to give to such clerks greater power than given by it to clerks of district courts in this city.

The district courts of the City of New York have uniformly acted upon the theory that summary proceedings should in all respects be conformed to the practice in actions pending in those courts, where there was no express provision of law to the contrary, and the clerks of those courts have uniformly acted upon such construction, and adjourned summary proceedings in the absence of the justice.

For these reasons, we think it best to hold that the clerk had the power to adjourn the proceedings in this case, that the justice did not err in receiving the answer when he did, and that he had jurisdiction to make the final order which he did. We have examined the testimony, and find the evidence quite sufficient to warrant the justice in coming to the conclusion he did in this case.

The final order should therefore be affirmed, with costs.

Order affirmed, with costs.

Cases cited

Meech v. Brown 1 Hilt. 257 N.Y.C.P. p. 565