Sire v. Merrick — 25 N.Y. St. Rep. 931

Majority

p. 931

Meter L. Sire, App’lt, v. James Merrick, Resp’t.

(New York Common Pleas. General Term,

Filed July 22, 1889.)

Headnote

District coukts—Judgment—When invadid.

In order to make a judgment of a district court of New York city-valid, the decision of the court must he communicated to the clerk of the court within eight days; and where a judgment given to the clerk after the time at which the right of the justice has expired, is offered in evidence, it is competent to introduce testimony to show that the judgment is invalid.

Appeal from first district court.

J. Fromme, for app’lt; J. Callahan, for resp’t.

In Dalton v. Loughlin ( 4 Abb. N. C., 187 ), we held that in order to make the judgment of a district •court valid, the decision of the justice must be communicated to the clerk of the court within eight days, and that the failure of the justice to deliver his decision to the clerk within that period was not a mere irregularity that gave ground for an appeal, but was fatal to the jurisdiction of the court over the cause.

It has been held that a final order must, like a judgment, be given within eight days after the submission of the case. People v. Loomis, 2 Civ. Pro. R., 278.

An omission by the clerk of a district court to record the judgment or the final order will not oust the court of jurisdiction, because the act of the clerk is merely ministerial, and may, therefore, in the absence of words in the statute that indicate an intention on the part of the legislature to prescribe immutable limits as to time, be done at convenience.

As it was essential to the jurisdiction of the court that the case should be decided by Justice G-oldfogle within the time agreed upon, namely, on or before May 25th, and as the validity of the record of Justice Goldfogle’s final order depended upon the time at which the decision was communicated to the clerk of the first district court, it was error to exclude the testimony that was offered to show that the decision was given to the clerk after the 25th of May, the time at which the right of the justice to decide the matter expired. In the case of the People v. Dando ( 20 Abb. N. C., 248 ), we held, upon the authority of several cases in the court of appeals and in the supreme court, that evidence ought to be received for the purpose of showing that a judgment that is offered in evidence is, in fact, invalid, and of no weight as proof, because it was rendered by a tribunal that was without jurisdiction. See Craig v. Town of Andes ( 93 N. Y., 405 ), Ferguson v. Crawford (70 id., 253), People v. Cassels ( 5 Hill, 164 ), Hard v. Shipman ( 6 Barb., 621 -624), Harrington v. People ( 6 Barb., 607 ).

p. 932

In the matter before us there is nothing to show that the decision was communicated to the clerk on the 25th of' May, and the evidence offered would not have contradicted the record; but the non-existence of a fact essential to the existence of jurisdiction may be proved even if the record be thereby contradicted.

The final order should be reversed.