4 Keyes 59 | NY | 1868
This matter comes before this court on appeal from the judgment of the Supreme Court, rendered upon the return to that court to a writ of certiorari, brought' to review summary proceedings had before the city judge of the city of New York, under the landlord and tenant act. The proceedings were affirmed, and the relator appealed therefrom to this court. The point is taken in limtime, that an appeal to this court will not He in such a case. The 11th section of the Code provides, that the Court of Appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination made at the General Term of the Supreme Court, in a final order affecting a substantial right in a special proceeding. This seems very clearly to embrace the case. It certainly does, if these summary proceedings to remove a tenant are to be regarded as a special proceeding under the Code. The opinion was expressed by Judge Denio, in passing, in delivering the opinion of the court In the matter of Dodd (27 N. Y.
This section, in defining remedies, seems to give some countenance to such a construction. It says: “ Remedies in courts of justice are divided into actions and special proceedings.” This narrow construction would allow no special proceeding, instituted before a judicial officer out of court, to be regarded a special proceeding under the Oode,', and, consequently, this 11th section, providing for appeals, would not reach such cases.
The same view was taken by Judge Mabvxn, of the Supreme Court, in The People ex rel. Harvey and others v. Heath and others (20 How. Pr. 304-307). The Code is entitled, “An act to supply and abridge the practice, pleadings and proceedings of the courts of this State,” and is, upon the plainest construction, limited to proceedings in the courts. •
The proceedings, after they come into the Supreme Court, are to be regarded as a special proceeding in that court, and so when the proceedings are brought into this court. Suppose, in the case before us, the decision of the city -judge had decided against the lan dlords, and they had removed the proceedings into the Supreme Oourt, would they not have been seeking a remedy in that court in a special proceeding ? And suppose again, they had been beaten in the Supreme Court, and had appealed to this court, would they not have been seeking a remedy in a special proceeding in this court? The case is not different that these appeals have been taken by the relator, for the respondents are seeking their remedy by the resistance they make to this appeal.
It is not necessary to discuss the question, and I will only add, that I have looked carefully into the adjudged cases, and find that this distinction made by Judge Denio and Judge Marvin, does not seem to have been observed by judges generally, and there is no reason for placing so limited a construction upon this first section of the Oode. The general understanding, I think, has been different, and there is a clear legislative intimation in chapter 828 of the Laws of 1868,
If there is any validity in the statute, the appellant is rectus ■in curia on this appeal, and there can be no doubt as to the power of the legislature to pass such an act, which simply regulates the proceedings enforcing a rerúedy. The right to abolish appeals and substitute a writ of error, and vice versa, has never been doubted, and to conform the proceedings of the one to the other in pending suits is equally clear.
These proceedings should be reversed for several reasons: In the first place, the affidavit presented to the city judge, and which was the foundation of the proceedings, was so defective, it did not confer jurisdiction upon the officer. It fails to show that the premises were situated in the city of Hew York, which is essential to give the city judge jurisdiction: . '
The recitals put into the summons by the judge when he issued the same, do not cure this defect. The affidavit of Doyle as to the service of the- summons, is so fatally defective that no jurisdiction to proceed further in the matter was conferred upon the judge. The affidavit of Board-man, the landlord, upon which the proceedings were instituted, purports to be sworn to on the 21st of December, 1866, and the summons is dated on the 22d of December, and
There is, however, another fatal defect in this affidavit: it fails to show that the last place of residence of these tenants was at this brass foundry, where the service was ■ made, by leaving a copy with a person of suitable age. This is a fatal defect. (The People, ex rel. Simpson, v. Platt, 42 Barb. 116.) The party who uses this quite severe and summary remedy, by serving the summons the hour it is returnable, by leaving a copy with some stranger in interest, and then, as is frequently done, run with a break-neck speed to the judge, and have a default taken, and the warrant issued to the officer to deliver possession, before the tenant can get there if he learns of the proceedings, must be held to keep strictly within the pale of the law, and conform his proceedings strictly to the demands of the statute, if he expects to have his proceedings sustained. These proceedings should be reversed with costs, and the record remitted to the Supreme Oourt, with directions to carry into effect this judgment.
Judgment reversed.