37 N.Y.S. 950 | N.Y. Sup. Ct. | 1896
On February 1, 1893, the defendant, as landlord, commenced a summary proceeding against the plaintiff, a monthly tenant, to remove him from the five rooms on the top floor, east side, of the tenement known- as Ho. 96 East. Broadway, for holding over after the expiration of his term. The defendant
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, subdivision 6. There are two answers to this proposition. 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. Hnintentional errors furnish the responsible party no defense against one injured by them. Intent is only material in aggravation or mitigation of damages, 2 Sedg. on 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 fiable 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 prócess. 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
Ordered accordingly.