Marchand v. Haber

fendant signed the petition and the affidavit accompanying it, but by some oversight on the part of the notary the latter omitted to affix his name to the jurat. The clerk of the Fifth district court, upon this unverified petition, issued a precept returnable at three ■o’clock the same day, and on the return thereof, the plaintiff not appearing, the justice signed the final order as by default, and issued his warrant, which was delivered to the marshal, and executed the following day. The process was served in the absence of the tenant by affixing the s.arne on a conspicuous part of the premises; so that the tenant was unaware of the pendency of the proceedings until he found the paper on February 2, 1893, at .about one a. m. He called upon the justice the same day, and understood the justice to say that he need not bother further with the matter; that the justice would attend to it. Some time during that afternoon the marshal /executed the warrant by removing the tenant’s household effects, and putting them upon the sidewalk^ where they remained until about two o’clock of the morning of February 3d, when they were taken away by an expressman employed by the tenant’s wife. The plaintiff claims that when he became'repossessed of his property much of it had been injured, many articles were missing, and that the actual injury in consequence amounts to about $308.10. The theory of the action is that, in consequence of the failure of the notary to sign his name to the jurat, the acts of the justice wrere coram non judice, and void, and the defendant, therefore liable. The summary proceeding sought to- be instituted being in derogation of the common law, and special in its nature, in order to confer authority upon the magistrate the statute should have been strictly complied with, particularly 'in its 'jurisdictional requirements; the first and most important of which is that the applicant must present a written petition, verified in like manner as a verified complaint in an action in the supreme court. Code, § 2235. A judgment of dispossession without such a petition, duly verified, where there is no appearance or waiver by the tenant, is absolutely void. Coatsworth v. Thompson, 5 St. Rep. 809 ; People v. De Camp, 12 Hun, 378 ; Williams v. Culhone, 22 St. Rep. 42 ; Fuchs v. Cohen, 19 N. Y. Supp. 236 ; Schneider v. Leizman, 57 Hun, 561 ; 33 St. Rep. 351 . This upon the familiar principle that where jurisdiction, particularly of an inferior court, depends upon the existence of some fact of which there is no proof, • all acts -performed on the assumption of such jurisdiction are void. Fischer v. Langbein, 103 N. Y. 84 ; 2 St. Rep. 768 ; Staples v. Fairchild, 3 N. Y. 41 ; Kelly v. Archer, 48 Barb. 68 ; Homan v. Brinckerhoff, 1 Denio, 184 . Ho preliminary proceeding or appeal is necessary to vacate or set aside void process as the condition of the maintenance of an action for damages done under it (Fischer v. Langbein, supra), for such process affords no protection "to the party who instituted the proceeding (Kerr v. Mount, 28 N.Y. 659 ; Fischer v. Langbein, supra). Where there is proof of a jurisdictional fact, but the justice errs as. to its sufficiency, the judgment voidable merely, and binding until reversed by some direct proceeding, 6 Wait, Act. & Def. 805; Skinnion v. Kelly, 18 N. Y.

355 ; Hall v. Munger, 5 Lans. 100 . But void adjudications, like the one here, are never binding, and can always be impeached directly or collaterally (6 Wait, Act. & Def. 805); for the remedy strikes deep. It goes to the very root of the proceeding, lays bare its defects, .and destroys the verity of the judicial record.

The defendant insists that the want of a jurat was a defect amendable by section 723 of the Code, made applicable to district courts by section 3347, subd. 6. There two answers to this pro.position. In the first place, no such amendment has been allowed or made. In the second place, a justice cannot, by amending a ¡proceeding in a particular which is necessary to give him jurisdiction, .acquire an authority nunc pro tunc. Ackerman v. Finch, 15 Wend. 652 . The fact that the jurat was not signed because of .-the oversight of the notary does not aid the defendant. Unintentional -errors furnish the responsible party no defense against one Injured by them. Intent is only material in aggravation or mitigation of damages. 2 Sedg. Dam. 483; Walker v. Wilson, 8 Bosw. 586 . The institution of the proceeding by the defendant, ¡his presence at the execution of the warrant, and the acceptance -of the benefits derived therefrom, make him liable for the acts of ■the marshal and his assistants. ■ The real question, therefore, resolves itself into one of damages. The plaintiff was a monthly tenant, and his term had expired when the proceeding was commenced ; but this circumstance gave the defendant no authority to remove him or his property without legal process. Flaherty v. Andrews, 2 E. D. Smith, 529; Shannon v. Burr, 1 Hilt. 39. But the fact that the plaintiff had no existing right to possession, as well as the defendant’s good faith, may be considered in awarding damages. The trespass was unaccompanied by bodily fear or. other circumstances of aggravation, and the general rule of damages is to award full compensation for all injuries done, without adding damages of an exemplary character. Eten v. Luyster, 60 N. Y. 253 . The plaintiff’s wife, after proving her qualification to testify, gave it as her opinion that the damages amounted to $308.10. Yet her judgment upon the subject is not that weight which a disinterested and more competent expert would be likely to receive. Upon the entire case the damages will be assessed at $250," which sufficiently compensates for every loss sustained. For this sum the plaintiff is entitled to judgment, with costs.