Opinion
June, 1908.
Brewster Farries, for appellant.
James Kearney, for respondent.
Appeal by tenant from final order of March 11, 1908, and also from an order made March 13, 1908, denying tenant's motion to set aside said final order granted on tenant's default except upon conditions. On May 31, 1907, these parties executed a lease for twenty-one years from October 15, 1907. Premises 53 Vesey street, Manhattan, twenty-five by ninety-five, with a six-story building intended to be erected thereon to be used as a stable for horses, carts, wagons, trucks and appurtenances. Rent $5,500 per annum, payable monthly in advance, and Croton water rates. On failure to comply with any of the terms of the lease the tenant waived the right to redeem or re-enter and to the sum of $2,750 deposited as security by the tenant. The new building was in the lease agreed to be completed on or before October 15, 1907, but the rent was not to begin until such completion, and the lease was subject to a mortgage of $50,000. The petition alleged nonpayment of rent for the month of February, 1908, $458.33. The amended answer alleged the deposit of $2,750 as security with the landlord; that, the building not being completed as agreed, the tenant, relying upon the representations of the landlord that completion would occur January 15, 1908, entered into possession of two of its six stories upon an agreement for rent to be determined, pursuant to which the tenant paid $275 up to February 1, 1908, and it was further agreed that the landlord would receive $275 for the February rent and a further temporary modification as to rent, owing to the noncompletion of the building in accordance with the plans and specifications referred to in the lease. The answer also alleged the willingness of the tenant to pay rent in proportion to completion for the use of the tenant, and set up several counterclaims, aggregating about $5,500, by reason of the failure of the landlord to complete the building as provided in the lease.
The precept was returnable February 28, 1908. The amended answer was verified March 3, 1908. The proceeding was set down for March 11, 1908, on which day the attorney for the tenant presented an affidavit stating in detail his engagement in a trial in the Supreme Court and asked an adjournment until March 18. He was supported by a certificate of Mr. Justice Ford, stating the actual engagement of Mr. Farries in said cause before him. The trial judge nevertheless proceeded to take the landlord's testimony; and the jury found for the landlord, the tenant offering no proofs. The return states the trial to have been without a jury and the submission of the "cause" to the justice for decision and determination. An indorsement of the precept shows that the tenant demanded a "jury trial Part 1, March 11th" and paid four dollars and fifty cents jury fee. Another indorsement is: "Received jury fee $4.50, March 13, 1908." Attached to the return is a mandate summoning a jury for March eleventh and also a similar mandate, dated March fourteenth, for March sixteenth. These apparent inconsistencies are partly explained by the order appealed from, dated March thirteenth, permitting the tenant to come in and defend on condition that he deposit in court the February rent before twelve o'clock noon of March fourteenth, in which event the proceeding was to be restored to the calendar for March sixteenth; but, upon failure to so deposit the rent, the motion was denied. March fifteenth the tenant's attorney appeared, stated he was ready to proceed with the trial, but objected to the deposit of the rent as a condition precedent ( vide amendment to case allowed by the court below). The notice of appeal was filed March sixteenth. On April 17, 1908, it was stipulated in open court that the final order was by default of the tenant to appear and defend. On these facts the question to be disposed of is whether the order refusing to open the default, except upon depositing the rent, was right.
Counsel for the landlord contends that by section 2248, Code of Civil Procedure, no adjournment may be had in a summary proceeding, except for the procurement of necessary witnesses. The language of that section is "may, in his discretion," etc. The Municipal Court has by its Rule 11, authorized by section 12 of the Municipal Court Act, provided as follows: "Causes set down for trial must be tried when reached unless legal grounds exist for an adjournment." It would seem that an issue joined in a summary proceeding is a "cause," where equitable defenses and counterclaims may be interposed, and that section 2248 does not apply to the extent of prohibiting the trial judge from exercising his discretion in granting an adjournment in a summary proceeding where "legal grounds exist." To hold otherwise would deprive any litigant in these proceedings of the privilege of trial, except upon proof of inability to procure necessary witnesses. In the light of the passage of the Municipal Court Act subsequently to the enactment of section 2248, Code of Civil Procedure, and section 20 of that act, and to the tendency toward judicial liberality in matters of practice, where jurisdiction is not involved and where injustice does not follow, we conclude that, the tenant having presented ample reasons for an adjournment and the landlord having abundant security in her hands for the payment of the February rent, it was error to impose the conditions made on opening the default. The tenant was entitled to his day in court.
Final order, and order denying motion to open default, reversed and new trial ordered, with costs to appellant to abide the event.
GILDERSLEEVE and GERARD, JJ., concur.
Orders reversed and new trial ordered, with costs to appellant to abide event.