21 N.Y.S. 797 | The Superior Court of the City of New York and Buffalo | 1893
The relator is the owner and landlord of premises No. 259 West Forty-Seventh street, in the eleventh judicial district in the city of New York. On the relator’s petition, a precept was issued, requiring a tenant to remove from the premises, or show cause before the district court for said district, on the 30th day of September, 1892, why the possession of the said premises should not be delivered to the landlord. The petition and precept met the requirements of the statute in both form and substance, and the precept was duly served upon the tenant. The controversy arises over what occurred in the court at the •time the precept required the tenant to show cause, to wit, the said 30th day of September, 1892. At that time, one William H. Secor,. for many years a member of the bar of the state of New York, a frequent practitioner in said court, and personally well known to the justice oí said court, arose and stated to the court that he appeared as attorney for the landlord in the proceedings under consideration. The justice demanded of said Secor that he show some proof of his authority to appear. Said Secor refused, and failed to show the justice any evidence of his right or authority to appear in said proceeding, and moved for judgment, and the usual warrant to dispossess the tenant for nonpayment of the rent; the said tenant, although present, having failed to file an answer as required by section 2244 of the Code of Civil Procedure. The justice thereupon, on his own motion, adjourned the proceedings to the following court day, which was the 3d day of October, 1892, for the purpose, as stated by said justice, “of enabling said Secor to produce some proof of his authority to appear for said landlord in said proceedings.” At the adjourned day, on October 3d, the tenant appeared in person., Secor did not appear, nor was the landlord present or represented by an attorney, and thereupon the justice dismissed the proceedings. Upon the application of the landlord, supported by affidavits, this court thereupon made an order requiring the said justice to show cause why a peremptory mandamus should not issue directing the said justice to issue a warrant for the possession of said premises pursuant to the prayer of the landlord’s petition. The moving affidavits and the order to show cause were served both upon the justice and the tenant, but the tenant failed to appear. The justice appeared, submitted an affidavit substantially charging Mr. Secor, upoú information and belief, with misconduct in prior cases, and claiming this to have been sufficient, to call upon him for proof of his authority to appear in the proceeding
The facts being as stated, the substantial question presented by the appeal is whether the said justice had power to adjourn the proceeding to a future day on his own motion, and without an answer having been filed by the tenant. The power to adjourn is conferred by statute, viz. section 2248 of the Code, and is to be exercised only at the time when issue is joined, at the request of either party, and upon proof that an adjournment is necessary to enable the applicant to procure his necessary witnesses. If sufficient cause, is not shown on the return of the precept, (which includes a case in which no answer is filed by the tenant,) the justice, under section 2249, must make the final order, and under section 2251 must issue his warrant. These sections constitute substantially an incorporation into the Code of Civil Procedure of the provisions of a former statute which had been enacted for the express purpose of giving to a landlord a summary remedy against a defaulting tenant. The remedy thus provided is not an action, but a summary proceeding. In a case arising under the former statute, (Boller v. Mayor, 40 N. Y. Super. Ct. 523,) in which, by the way, a counter affidavit had been filed, it was expressly held by this court at general term that in such a summary proceeding there is no power or jurisdiction in the justice to adjourn the hearing, except upon the request of either party, and for the purpose of enabling the party applying to procure his witnesses, if that should appear to be necessary. In Kiernan v. Reming, 7 Civil Proc. R. 311, the same rule was laid down and enforced upon the authority of Boller v. Mayor, supra, in a case which had arisen under the present Code. In Ahrens v. Burke, 63 How. Pr. 50, decided in 1881, the general term of the court of common pleas, as the appellate tribunal for the determination of appeals from district courts, expressly held that, even in an action, the justices of the district courts in the city of New York have no power to adjourn the case without an answer having been filed on the return day. And in Deutermann v. Nilson, 3 N. Y. Supp. 113, (decided in 1888,) the general term of the court of common pleas, in passing upon the power of the clerk of a district court to adjourn the court in the absence of the justice, expressly stated that the justice cannot adjourn the hearing of a summary proceeding without an answer having been filed. These four cases have never been overruled by the court of appeals, and consequently we find ourselves concluded by authority, at least as far as summary proceedings are concerned. True, there are some cases which seem to lend color to the contention of the appellant, but they can be readily distinguished. Merwin v. Rogers, (Com. Pl. N. Y.) 6 N. Y.