People ex rel. Crawford v. De Camp — 19 N.Y. Sup. Ct. 378

Majority

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THE PEOPLE OF THE STATE OF NEW YORK ex rel MATTHEW J. CRAWFORD and JOHN J. DEMPSEY, Respondents, v. OLIVER DE CAMP, Appellant.

Headnote

Summm'y proceedings— omission of venue in affida/oit — affidavit of service — • sufficiency of.

In summary proceedings to dispossess tenants, the landlord’s affidavit had no venue, nor did it appear where the justice of the peace who took it resided. Held, that the affidavit failed to show facts essential to the jurisdiction of the justice, and that there having been no appearance by the tenants such defects were not waived.

The affidavit of service in such proceedings alleged that the constable “ served the within summons on the tenants therein named by leaving a true copy of the same with a person of mature age,” etc. Held, that the service should have been made on each; that, in fact, it was not made upon either, and that this was also a jurisdictional defect in the proceedings.

Appeal from an. order reversing an adjudication in summai-y proceedings by a justice of tbe peace, dispossessing tbe relators of certain premises known as St. Mark’s hotel, New Brighton.

Tbe respondent rented tbe premises in question to tbe relators. Tbe rent was not paid. Summary proceedings were taken to dispossess tbe relators’ there was no appearance bv them in such

p. 379

proceedings, and judgment was given for the recovery of the premises by the landlord.

Upon review at Special Term, on cerbiora/ri, the judgment was reversed.

Hatch & Vcm Allen, for the appellants.

TF. T. B. MilViken, for the respondent.

There are two fatal errors in the proceedings to dispossess relators. The landlord’s affidavit has nó venue, and it does not appear therein where it was sworn to nor where the justice of the peace who appears to have taken it resides. (Cook v. Staats, 18 Barb., 407 ; Lane v. Morse 6 How., 394 .) Jurisdiction depended on the affidavit, and if it lacked an essential requisite all subsequent proceedings were void unless the defect was waived. There being no appearance before the justice there could be no waiver. The summons was not properly served on the relators. The tenants were absent from the premises in question upon which they resided, and the service was made on both tenants by leaving one copy with a person of mature age and discretion. The service must be made upon each ; it has been made upon neither. This is also a jurisdictional defect. Without proof of the service of the summons upon the tenants the court could not proceed to dispossess them.

The proceedings were properly reversed, and the order should be affirmed, with costs.

Dvr-wan, J., concurred, Gilbert, J., not acting.

Order reversing judgment, of justice affirmed, with costs.