Mervin v. Rogers — 18 N.Y. St. Rep. 949

Majority

p. 949

Samuel B. Mervin, et al., App’lts, v. Andrew J. Rogers, Resp’t.

(City Court of New York, General Term,

Filed October 26, 1888.)

Headnote

1. Judgment—Entry of nsr New York district court—Code Crv. Pro., §§ 3126, 3207, providing eor entry oe judgment on the defendant’s default in pleading, do not require entry of judgment on return DAY OF SUMMONS.

It is provided by Code of Civil Procedure, § 3126, that in action brought in a justice's court of the city of Brooklyn to recover upon or for the breach of a contract, express or implied, the plaintiff may serve upon the defendant with the summons, and in like manner, a copy of a written complaint, verified in like manner as a verified pleading in the supreme court, and that in that case unless the defendant, upon the return of the summons, * * * files a written answer, verified in like manner, denying one or more allegations, or generally each allegation of the complaint, or setting forth new matter, constituting one or more defenses or counter-claims, the justice must render judgment in favor of the plaintiff for the sum claimed in the complaint, with cos's, without putting the plaintiff to any proof. This provision is by Code of Civil Procedure, § 3207, made applicable to such action brought in a district court of the city of New York. Held, that no provision in the sections quoted required or made it the duty of the justice to render a judgment on the return day of the summons, but only in case of the default of the defendant to render judgment without putting the plaintiff to proof.

2. Judicial discretion—Exercise of does not render judge liable.

Held, that in such a case it was discretionary with the justice, on the return day of the summons, to adjourn the cause, and that for the exercise of such judicial discretion he could not, although prompted by improper motives, be held liable.

Appeal from a judgment rendered herein on the demurrer interposed by the defendant, against the plaintiffs with $47.59 costs and disbursements; and also from an order

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made herein March 10, 1888, denying plaintiff’s motion for judgment on said demurrer, as frivolous.

The complaint herein alleges in substance the commencement of an action in the district court of the city of New York for the tenth judicial district, by the above named plaintiffs, against one John A. Mapes. The filing in the said court on the return day of the summons, on January 13, 1888, of the original summons and a verified complaint, with proof of due service thereof on the defendant.

That the case was regularly called on the calendar of said court on said return day, by the defendant, the presiding justice of said court. The appearance of the plaintiffs by their attorney. That the defendant Mapes failed to' appear in person, but made default to file a written answer, verified in like manner with said complaint. That plaintiffs attorney thereupon demanded judgment on the verified complaint for the sum claimed therein with costs, without putting them to any proof. That defendant refused to enter a judgment on said day, and adjourned the said case until January 16, 1888. That between the said return day of summons and January 16,1888, an attachment was levied by another creditor of said Mapes against said Mapes, and thereby obtained a prior lien upon, seized and held all the property of the said Mapes. That on the day to which said case was adjourned (January 16, 1888) plaintiffs appeared in said court, by their said attorney, before said defendant, the presiding justice of said court, and asked for judgment against said Mapes on said verified complaint; and that said justice thereupon rendered judgment in favor of said plaintiffs; and that by reason of the refusal of said defendant to render judgment on the return day of the summons, plaintiffs have suffered the loss of their said debt against said Mapes besides being put to great expense in procuring a worthless judgment to their damage of $350.

To which complaint defendant demurred, alleging as ground of demurrer that said complaint does not state facts sufficient to constitute a cause of action.

J. H. Hildreth, for app’lts; J. C. De La Mare, for resp’t.

Section 3136 of the Code of Civil Procedure, made applicable to the district courts the city of New York, by section 3307 of Code, provides for the'service upon the defendant, “with the summons, and in like manner, a copy of á written complaint, verified, etc.,” in which case, “unless the defendant, upon the return day of the summons, files a written complaint, verified in like manner, denying one or more material allegations, or, generally, each allegation of the complaint, * * * the justice

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must render judgment in favor of the plaintiff for the sum claimed in the complaint with costs, without putting the plaintiff to any proof.”

There is no provision is said section requiring, or making it the duty of the justice, to render a judgment, on the return day of the summons, but only, that should the defendant fail to file the answer provided for in said section, on the return day, that in such case, the justice must render judgment, “without putting plaintiff to any proof,” other than the verified complaint.

It clearly was not intended, that the justice in such case, should stop or delay the other business of the court then before him, to examine the plaintiff’s complaint and proof of service thereof, in order to satisfy himself at that particular time, as to whether the plaintiff’s complaint set forth a sufficient cause of action, and whether the proof of service was sufficient to confer upon him jurisdiction of the action sufficient to authorize him to render a valid judgment therein.

He was fully authorized and it was discretionary with him, to adjourn the examination of the case, for such reasonable time, as he might deem necessary, consistent with his other duties in said court, to enable him to make such examination.

The case was in the exercise of such discretion, adjourned to the sixteenth day of January, a half holiday and a Sunday intervened.

The case having been thus adjourned, on the adjourned day, he still having and exercising his jurisdiction thereof, the plaintiffs’ attorney appeared before him, and asked for judgment against said Mapes, thus recognizing the jurisdiction of said justice, who thereupon rendered judgment in favor of said plaintiffs for the sum claimed in the complaint, without putting the plaintiffs to any proof.

The acts of the defendant in adjourning said case and rendering the judgment thereon on the adjourned day were done in the exercise of his judicial functions and of a discretion conferred upon him; and it does not appear that he exercised such discretion improperly; and he cannot be held liable for a judicial act hi a matter within his jurisdiction, even though the act was in excess thereof and one alleged to have been done not maliciously or corruptly.

No such allegation appears in the complaint. Lange v. Benedict, 73 N. Y., 12 .

Even had the adjournment granted by the defendant been unwarranted, such adjournment was at most an error of judgment upon his part, for which he cannot be held liable.

Not even had the defendant made a mistake in the law; nor for misconduct or corrupt motives in granting the adjournment can he held hable, when he had jurisdiction of

p. 952

the subject-matter in which he was acting. Wickware v. Bryan, 11 Wend., 546 ; Brown v. Smith, 24 Barb., 422 .

For the reasons above stated and also for others stated in the opinion of the chief justice, the judgment and order appealed from must be affirmed, with costs.

Nehrbas, J., concurs.