Griffith v. Brown — 26 N.Y. Super. Ct. 627

Majority

p. 627

James Griffith, plaintiff, vs. Ann Brown and another, defendants.

Headnote

A warrant of dispossession in summary proceedings to recover the possession of land, will be stayed by injunction, where it appears that the possessor summoned had not time to arrive at the court room, before the hearing, after the service of the summons.

(Before Robertson, Ch. J. at special term,

October —, 1864.)

Motion to continue an injunction restraining the defendants from executing, or procuring to be executed, a warrant issued by a justice of a district' court, in the city of Hew York, in summary proceedings under the statute, to remove a tenant who was holding over. The summons was issued September 13, 1864, at 11 o’clock, a. m. returnable at 2 o’clock, p. m. of the same day, and was given to the officer, for service, immediately after it was issued. The officer retained the process until about twenty minutes past 1 o’clock, when he served it by leaving it with a person of mature age, on the premises, during the tenant’s absence. The proceeding was called at 2, p. m., and judgment entered, and a warrant issued at half past

p. 628

two. The tenant ■ arrived at the court house about fifteen minutes after the warrant was issued.

E. Haines, for the plaintiff.

David McAdam, for the defendants.

It is possible the proof of service of the summons, without showing the time of it, may have been sufficient to confer jurisdiction on the magistrate to issue a dispossessing warrant. At all events, injustice in that respect could not be corrected on certiorari, as nothing appears on the record as to the time of the service of the summons, or the possibility of the tenant’s reaching the courtroom after such service. If the magistrate has an arbitrary right to fix the time of appearance, and the delivery of a summons to a person, to be served, is the issuing of it, within the meaning of the statute, no •similar right is given to the person receiving the summons to diminish" as he pleases the time within which the tenant has a right to appear, by delaying its service until too late. If due proof of service, in order' to comply with the statute, may be made simply by proving a delivery of the summons at some time during the day, sufficient time should be afforded to the party served, after the proof is made, to attend in order to be heard, particularly where the service is not personal. The law could not have intended such a mockery of justice as to expel a party, in possession, without an opportunity of being heard. The magistrate might, if the improper issuing of the warrant of dispossession was made known in time, withhold it, or possibly might'recall it, if so improvidently issued; but I do not find any authority in the statute for reconsidering his decision made on the exparte evidence of the landlord. For an evil under color of legal proceedings, which has no other remedy, an injunction order must be the proper one. Whether the dilatory service of the summons is to be considered a fraud on the law, or the judgment given by the magistrate in the absence of a party who has not had time to arrive at the court room

p. 629

before the hearing, after service of the summons, is to be considered as a surprise, I think the right of enjoining may be exercised. The cases of Valloeton v. Seignett, ( 2 Abb. 121 ,) and Cure v. Crawford, (1 Code Rep. N. S. 18,) seem to sustain the first view, and that of Forrester v. Wilson, ( 1 Duer, 624 ,) the second.

Of course, staying proceedings on the first warrant, now issued, will not prevent a new application to dispossess. Neither party will be at liberty to use such adjudication on such second application.

It is possible, of course, that the plaintiff might have reached the court room in time for the hearing, if the summons had been served upon him personally an hour before the time for appearing; but that was too short, apparently, to enable the party on whom it was served to carry it to him, and for him to find a legal adviser and get to the place of hearing in time. He appears to have used all diligence to reach there in time, and failed.

The motion must be granted, with ten dollars costs to the plaintiff, to abide the event of the suit.