137 Misc. 1 | New York County Courts | 1930
After due service of summons, both parties appeared in the City Court of the city of Auburn, by their attorneys, on the return day, September 7, 1926; no return or complaint was then filed pursuant to sections 339 and 140 of the charter of the city of Auburn (Laws of 1920, chap. 438); and the case "was adjourned two weeks, when the plaintiff’s attorney alone appeared, and on his motion, and suo motu when no one appeared, the city judge granted various adjournments (as empowered by section 146 of said charter) until December 20, 1928, when plaintiff’s attorney filed a return and verified complaint and took judgment in contract for $122.25. June 29, 1929, execution issued to a constable who interviewed the defendant personally, but, unable to colléct, returned it wholly unsatisfied November 22, 1929. March 14, 1930, transcript was filed and said judgment docketed in the Cayuga" county clerk’s office, and thereafter an execution was returned by the sheriff wholly unsatisfied, and supplementary proceedings instituted, when the judgment debtor moved to open the judgment, claiming it was contrary to law and without jurisdiction.
The court had jurisdiction of the subject-matter (Charter, § 138; Hunt v. Hunt, 72 N. Y. 217, 228; People v. Sturtevant, 9 id. 263, 266) and obtained jurisdiction of the person of the defendant by the service of the summons on him (Charter, § 138; Justice Ct. Act, § 44; Fowler v. Haynes, 91 N. Y. 346, 350; Davis v. Jones, 4 How. Pr. 340, 341) and his general appearance and participation in the action, without objection, which conferred jurisdiction, admitted he was regularly in court and conceded the regularity of the preliminary proceedings and waived and cured all irregularities therein. (Shaffer v. Riseley, 114 N. Y. 23, 26; Nemetty v. Naylor, 100 id. 562, 569;' Fowler v. Haynes, supra; Attorney-General v. Guardian Mut. Life Ins. Co., 77 id. 272; Me Key v. Lockner, 43 App. Div. 43; Spruhn v. Brown, 63 Misc. 46, 47; Behan v. Phelps, 27 id. 718, 723; O’Brien v. Foster, 181 N. Y. Supp. 69; Conway v. Hitchins, 9 Barb. 378; Hill v. Smith, 2 How. Pr. 242; Mulkins v. Clark, 3 id. 27; Dix v. Palmer, 5 id. 233; Webb v. Mott, 6 id. 439; Baxter v. Arnold, 9 id. 445; Sprague v. Irwin, 27 id. 51.) Any
These charter provisions are modal and designed for the regulation of procedure in said City Court; they are no more sacred than any other rules of practice and may be waived like other personal, statutory or constitutional rights or privileges. (McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y. 176, 177; Embury v. Conner, 3 id. 511; Burckle v. Eckhart, supra; Collinson v. Wier, 91 Misc. 501, 505 et seq.; Fiero v. Reynolds, 20 Barb. 275; Jenkins v. City of Hudson, 8 Civ. Pro. 70; Hardenburgh v. Crary, 15 How. Pr. 307; Nason v. Luddington, 56 How. Pr. 172.) As was said by Brown, J., in Cowenhoven v. Ball (118 N. Y. 231): “ In civil cases a party may stipulate away all his rights, questions of jurisdiction as well as others, and he may do this by express agreement, by acts inconsistent with the objection, or by his silence and omission to present the proper points when he ought to object,” or by implication by any act indicating it to be the design of the person entitled to make it, not to insist upon it. (People ex rel. Jennys v. Brennan, 3 Hun, 666, 673, and cases cited.)
The defendant having appeared and acquiesced in the service, proceedings and adjournment, without objecting to the failure to file the return and complaint then, when the defect could probably have been supplied, misled the plaintiff and made him believe he would not insist thereon or object thereto later and thus waived the observance by the court of these charter provisions intended for his benefit, and cannot now be heard to object to the regularity of the oroceedings, at this late date, to the prejudice of the plaintiff. Peculiarly pertinent here are the words of Folger, Ch. J., in Hilton v. Fonda (86 N. Y. 339, 352): “ May a person having knowledge of the course prescribed by law to an official, look on and see the officer innocently turn aside therefrom, and withhold from saying the word that would recall him to the lawful track, may he, by silence and acts and words and seeming acquiescence,
It is the uniform practice to sustain judgments of courts of inferior jurisdiction by every reasonable and warrantable intendment (Schoonmaker v. Spencer, 54 N. Y. 366), unless some vital error has been committed affecting a substantial right. (Bell v. Moran, 25 App. Div. 461, 464; Gridley v. Wood, 180 id. 831; Helmick v. Churchill, 92 Hun, 524.) Failure to file proof of service on the return day affected no substantial right for the purpose of the summons was to apprise the defendant when and where judicial action would be taken. (McCoun v. N. Y. C. & H. B. R. R. Co. and Sagendorph v. Shult, supra.) He was served. He responded. Filing the return could give him no more notice, or secure him rights which he voluntarily relinquished. It was his duty to object at the proper time or forever after hold his peace. Objection then made might have been continued in statu quo (Coatsworth v. Thompson, supra)) but not having spoken when he should, he cannot when he would. (Cowenhoven v. Ball, Shaffer v. Riseley, Collinson v. Wier and Hardenburgh v. Crary, supra; Johnson v. Oppenheim, 55 N. Y. 280, 291.) Defendant’s attorney was not required to prove bis authority (Charter, § 140) and is deemed authorized to manage and adjourn the suit and defendant is bound by his acts, admissions and stipulations, even if he did not know of the irregularity at the time. (Beardsley v. Pope, 88_Hun, 560; Brown