14 Daly 563 | New York Court of Common Pleas | 1888
On the 2d of August, 1888, the clerk of the district court in the city of New York for the Second judicial district, at the request of the
The appellants contend that neither the justice nor the clerk had power to adjourn the proceedings until the tenant’s answer was filed, and, as the latter failed to do this on the return-day, they became entitled to a final order absolutely; citing sections 2244, 2248, and 2249 of the Code in support of this, view. Section 2244 provides that “at the time when the precept is returnable, without waiting, as prescribed in an action * * * in a district court of the city of New York, the person to whom it is directed * * * may file with the judge or justice who issued the precept, or with the clerk of the court, a written answer, verified in like manner as a verified answer in an action in the supreme court.” This provision is permissive only, and not mandatory. The tenant is not bound by it to so file his answer; and in many cases he would deprive himself of valuable rights by so doing, as under the rule uniformly enforced in those courts, he would thereby waive all technical objections to the jurisdiction of the justice, the sufficiency of the petition upon which the precept issued, as well as to the precept itself, and also to the previous notice in those cases, which notice to quit is required as a prerequisite to the obtaining of a precept. The proceeding, being a statutory one, must be strictly construed-, and any material defect in the papers will justify the justice in dismissing it. We think this section merely gives the tenant an option to file the answer or to wait until the justice arrives, when he may first object to the jurisdiction of the court, the sufficiency of the petition, notice, etc., and then, if these objections are overruled, he may file his answer. Section 2248 provides: “At the time when issue is joined the judge or justice may, in his discretion, at the request of either party, and upon proof to his satisfaction, * * * by consent of all the parties who appear, adjourn the trial of the issue. * * *” Section 2249 provides: “If sufficient cause is not shown upon the return of the precept, * * * the judge or justice must make a final order awarding to the petitioner the delivery of the possession of the property. * * *” But, as we have before shown, the tenant is not bound to file his or her answer in the absence of the justice, much less is he required to show cause before the clerk; for even in ordinary actions, unless it is expressly given by statute, the latter has no power to compel the joinder of issue. Meech v. Brown, 1 Hilt. 257. The tenant is required to show cause to the justice only. There is one other section directly applicable to the adjournment of summary proceedings in district courts, and that is section 2239, which provides: “* * * If upon the
Section 1292 of the consolidation act, (chapter 410, Laws 1882,) provides: “* * * Whenever the justice fails to attend, the clerk may adjourn in the same manner as the justice might have done;” that is, in the same way or mode, not in the same cases, a justice might have done, for we concede a justice could not adjourn without an answer being filed; but this the clerk has no power to require. Section 1292 is but a re-enactment of section 6, c. 344, Laws 1857. Section 1358 of the consolidation act, which professes to be merely a re-enactment of section 2239 of the Code of Civil Procedure, before referred to, reads: “* * * If upon the return of the precept, or upon an adjourned day, the justice is unable by reason of absence from the court-room, ■or sickness, to hear the cause, and it is not adjourned by the clerk in accordance with section 1292 of this act, * * * a justice of any other district court of the city may act,” etc. This would be entirely conclusive upon the question of the clerk’s power, to adjourn these proceedings, were it not that section 2143 of the consolidation act says, enumerating a large number of preceding sections including 1358: “These sections, being intended only to contain the substance of certain sections of the Code of Civil Procedure * * * or amendments thereof, shall not be construed as making any new ■enactment, or as repealing, modifying, amending, or superseding any provision of either of said Codes, or any amendment thereof, but shall be treated .and considered as embraced in this act, solely that it may contain all provisions of existing laws which are of special application to the city of Hew York.” So that the words in italics cannot be construed as making any ■change in the Code of Civil Procedure. But it is not equally conclusive, as showing the interpretation which the legislature put upon its former enactment, and that it intended thereby that summary proceedings instituted in ■district courts should be subject to all the provisions in respect to the mode of procedure prescribed for actions in such courts, except as otherwise prescribed by statute? Else why insert the words in italics? They are ineffective as new legislation, and can be rendered effective only as showing the legislative intent of the former enactment. In accordance with this view it has been held, where summary proceedings were commenced before a justice ■of the peace, that all the provisions in respect to the mode of procedure in justice’s courts apply to such proceedings. People v. Loomis, 27 Hun, 328. If the legislature did not intend that this proceeding should be subject to the procedure in actions in district courts, then it has utterly failed to limit the time within which the final order must be made by a justice of a district •court, as there is no provision in the Code limiting that time. Although the legislature carefully restricts such courts to a specified time in which to do