107 N.Y.S. 694 | N.Y. App. Div. | 1907
This is a suit in equity to have a final order in summary proceeds ings declared null and void and to enjoin its use, particularly as evidence of the existence of the relationship of landlord and tenant between defendant and plaintiff. It appears that on the 4th day of April, 1906, the defendant presented a duly verified petition to a justice of the peace of the town of Huntington, county of Suffolk, N. Y., alleging that he was the “ lessor ” of certain real property therein described situate in said town ; that he “leased” it to the plaintiff on the 15th day of February, 1905, for one year from the first day of April thereafter at a stated rental, payable semi-annually on the first days of April and October; that the plaintiff entered into possession of the premises but has not paid the rent, payment of which was personally demanded in said town ; that three days’ notice in writing, requiring in the alternative the payment of the rent or possession of the premises, was duly served on the plaintiff on the twenty-second day of March and service thereof was also made on the 30th day of March, 1906, by attaching it to the door of the building on the premises, pursuant to the provisions of the Code of Civil Procedure, “ there being no person to whom said notice could be served upon or delivered to; ” that the rent had not been paid nor had possession been surrendered, and that plaintiff held over and continued in possession without his permission after such default in the payment of rent and demand, and prayed for a final order to remove him. A precept in due form was issued, returnable on the 30th day of. April, 1906. It was served by affixing it to the front door of the house, the return of the constable showing that he was unable to find the plaintiff or anyone on the premises upon whom it could be served. The plaintiff failed to appear at the time the precept was returnable and a final order and warrant were issued. The defendant thereafter brought an action against the plaintiff in the Supreme Court to recover the rent and for the value of certain improvements alleged to have been made on the demised premises at the request of the plaintiff. The plaintiff had no notice or knowledge of the dispossess proceedings at the time and did not learn thereof until the 17th day of May, 1907. He then brought this action to have the final order annulled and to enjoin the defendant from using it as evidence upon the ground that the summary
The plaintiff' concedes that he had an understanding with. the defendant with respect to renting the premises after certain repairs should be made thereto, and that pursuant thereto and with the expectation of consummating a lease, he forwarded certain carriages to the premises, which were delivered into the custody of the defendant. ' ‘
Courts of equity possess jurisdiction to cancel judgments, orders or decrees, or to enjoin their enforcement in whole or hi part for fraud, but this jurisdiction will only be exercised in cases of necessity and where there is no adequate remedy at law. (Huggins v. King, 3 Barb. 616 ; Farrington v. Bullard, 40 id. 513 ; Dobson v. Pearce, 12 N. Y. 156 ; Richardson v. Trimble, 38 Hun, 409 ; Hinckley v. Miles, 15 id. 170 ; Tracy v. Shannon, 16 Civ. Proc. Rep. 448 ; Patterson v. Naehr, Id. 449.) Equity may entertain jurisdictioh to enjoin the introduction, in an action at law, of evidence obtained by fraud and duress. (22 Cyc. 811; Wells v. Bridgeport Hydraulic Co., 30 Conn. 316 ; Callender v. Callender, 53 How. Pr. 364.)
In the case at bar the plaintiff claims that he was not a tenant and was never in possession, and, therefore, the only possible prejudice that may befall him 'in consequence of the summary proceeding is the use of the final order as evidence of the relationship of landlord and tenant, and, therefore, probable prejudice on this theory is the only basis for equitable relief. If the final order be not open to collateral attack, there can be no doubt it would be conclusive on that question. (Reich v. Cochran, 151 N. Y. 122.) If the petition gave the justice jurisdiction and the service was in conformity to the requirements of the Code" of Civil Procedure (§ 2240), although the final order was granted on substituted service and by default, it would be as binding and conclusive as if the plaintiff had. appeared. (Mutual Reserve Fund Life Association v.
It follows that the order should be affirmed, with ten dollars costs and disbursements.
Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.