Opinion
June, 1897.
Vanderpoel, Cuming Goodwin (Delos McCurdy, of counsel), for appellant.
Evarts, Choate Beaman (Treadwell Cleveland, of counsel), for respondent.
The proceeding was to remove Lorenz Reich as tenant from the premises known as the Cambridge Hotel, corner of Fifth avenue and Thirty-third street, for default in the payment of $13,250 rent due at the time of demand made therefor.
A verified petition was filed by William F. Cochran, the landlord, and a precept founded on said petition was duly issued and served, returnable August 17, 1892. Upon the return day the tenant appeared by James D. Hewitt, his attorney, and applied for an adjournment, which was denied by the justice, and as no answer was filed by the tenant a final order went against him by default, awarding possession of the premises to the landlord.
The appearance by the tenant without objection conceded the regularity of the service of process, and as all the jurisdictional facts required to be stated were alleged in the petition with care and particularity it is difficult to discover upon what ground the record is open to attack upon appeal.
The rent was subsequently paid, and in consequence no warrant on the final order was executed.
There was an attempt made in the motion papers to dispute Mr. Hewitt's authority to appear; but Mr. Hewitt's affidavit upon that subject establishes that the appearance by him was authorized. The marshal's return of service was also attacked; but this was fully met by affidavits produced by the landlord. Without conceding the power of the justice after final order to pass upon such objections, it is sufficient to say that no harm came to the tenant by the rulings made, because they seem to be sustained by the proofs, and the marshal's return upon its face answers all the requirements of the statute.
The motion to open the default was denied March 21, 1893, on various grounds, including that of want of power, a question we will next consider.
Section 1367 of the Consolidation Act relating to the District Courts, under which statute the application was made, provides that "Any justice may, upon motion made before him, open and set aside any default made in any action tried before or by him," etc. This applies only to actions (technically so called), and not to the summary remedies authorized by statute, under which the landlord proceeded, which are denominated special proceedings as distinguished from actions. Dorschel v. Burkly, 18 Misc. 241; 41 N.Y.S. 174; Decker v. Sexton, 19 Misc. 59; 43 N.Y. Supp. 167, 174. So, that, irrespective of the merits (if any there were), the application was properly denied.
It follows that the final order must be affirmed, and the appeal from the order denying the motion to open the default dismissed, with costs.
BISCHOFF, J., concurs.
Final order affirmed, and appeal from order denying motion to open default dismissed, with costs.