Rodding v. Kane — 16 N.Y. St. Rep. 677

Majority

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Bertha Rodding, Resp’t, v. Terence Kane et al., App’lts.

(New York Court of Common Pleas, General Term,

Filed May 18, 1888.)

Headnote

1 Jurisdiction — Continuance of proceedings before a judge other THAN THE ONE BEFORE WHOM THEY WERE INSTITUTED—CODE ClVIL Pro., § 26, applies only to courts of record.

In the month of November, 1887, the justice of the ninth judicial dis

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trict of the city of New York issued a precept in summary proceedings for the possession of land. Issue was joined on the twenty-eighth day of the following month, and the testimony closed, the case being adjourned by the consent of the parties to the 4th day of January, 1888. The term of office of the justice expired at the close of the year 1887, but on the 5th day of January, 188S, he made a final order in the case awarding possession of the premises to the petitioner and delivered it to the clerk or deputy of the district. Held, that Code Civil Pro., § 26, related to special proceedings before a judge of a court of record and not to district courts.

2. Same — Code Civil Peo., § 52, does not confer upon an officer JURISDICTION TO DETERMINE AFTER THE EXPIRATION OF HIS TERM OF OFFICE PROCEEDINGS PREVIOUSLY COMMENCED BY HIM.

It is provided by Code Civil Pro., § 52, that in case of the death, sickness, resignation, removal from office, absence from the county or other disability, of an officer before whom a special proceeding has been instituted where no express provision is made by law for the continuance thereof, it may be continued before the officer’s successor. Held, that this did not give the former officer a right to continue a proceeding commenced before him during his term of office, after the expiration of the term.

8. Same—District court justice cannot after expiration of term OF OFFICE DETERMINE PROCEEDINGS PREVIOUSLY COMMENCED BEFORE HIM.

It is provided by section 1390 of the consolidation act (Laws 1882, chap- ' ’ ter 410), that no process, suit, judgment, execution or proceeding held by either of the district court justices, shall abate or be discontinued by reason of the death, -removal from office, or vacancy in office of any justice, ■ but the respective successors in office of any justice shall proceed to hear, try, determine and give judgment in and upon the same, and upon all matters and things pending before and undecided by their predecessors in office, with the same powers, jurisdiction and authority as their predecessors had. Held, that the justice had no authority to act in the case in question after the expiration of his term of office.

4. Same—Cannot be conferred by consent of parties.

The consent of the parties to an action or proceeding cannot confer jurisdiction where none exists.

Appeal from a final order in summary proceedings.

B. C. Chetwood, for resp’t; J. W. Cowan, for app’lts.

In the month of December, 1887, the Hon. Henry P. McGowan, then justice of the ninth judicial district court, issued a precept in summary proceedings for the possession of land claimed to belong to Bertha Bodding and occupied by Terence Kane and others, as squatters.

Issue was joined on the 28th of December, 1887, and the testimony was closed on that day, and the case was, by consent of the. parties, adjourned to January 4, 1888, for the submission of briefs.

The Hon. Henry P. McGowan ceased to be justice of the ninth district court at the close of the year 1887 by reason of the expiration of his term of office.

. On the 5th of January, 1888, the late justice assumed to decide this case in favor of the petitioner, and signed a final order awarding possession of the premises to her, and de

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livered the order to the clerk or deputy of the ninth district court.

The question thus presented is whether in a summary proceeding the justice instituting the same has any authority or jurisdiction to determine the case, and sign a final order after the expiration of his term of office.

Section 26 of the Code of Civil Procedure relates to special-proceedings before a judge of a court of record, and not to district courts,

■ Section 52 of the Code provides that in case of the death, sickness, resignation, removal from office, absence from the county, or other disability of an officer, before whom the special proceeding has been instituted, where no express provision is made by law for a continuance thereof, it may be continued before the officer’s successor. But this does not give the former officer a right to continue a proceeding commenced before him during his term of office after his term of office has expired.

Section 2246 of the Code provides that at the time of joining issue a justice of the district court, or, in his absence, the clerk may, by consent of the parties, make an order transferring the cause for trial to a district court of an adjoining district, and section 1390 of the consolidation act (chap. 410, Laws of 1882), provides: “No process, suit, judgment, execution or proceeding had before either of the courts held by either of the said justices shall abate.or be discontinued by reason of the death, removal from office, or vacancy in office of any justice, but the respective successors in office of the said justices shall proceed to hear, try, determine and give judgment in and upon the same, and upon all matters and things pending before and undecided by their predecessor in office, with the same powers, jurisdiction and authority as their predecessors had.” From this section it is clear that ex-Justice McGowan had no authority to act in this case after the expiration of his term of office.

It is too well settled to néed the' citation of authorities, that the consent of parties cannot confer jurisdiction where none exists; and therefore the consent of the parties cannot avail the petition in this case, and that the order was null and void.

The order must therefore be reversed, with costs.