MORDANT v. NILES

MORDANT v. NILES. N. Y. Supreme Court, First Department; Chambers, October, 1876. Summary Proceedings. In summary proceedings under 2 B. S. 513, a default taken at the time mentioned in the summons, without waiting the hour allowed by law in justices’ courts, is valid, and a court of. equity will not enjoin its enforcement. Motion for injunction. The defendant, Niles, was the owner of certain real estate in the city of New York, which was sold for taxes, and afterwards taken forcible possession of by the plaintiff under the tax title from the city. After the plaintiff had been in possession for some time, the defendant began summary proceedings in one of the district courts to obtain possession, and secured judgment in Ms favor. TMs was reversed on certiorari, and the plaintiff restored to possession by the sheriff. The plaintiff held possession for about two months, when the defendant again instituted summary proceedings, the return to be made at nine o’clock in the morning, before the district court judge. Mordant’s attorney failed to reach the court until half-past nine, when he found that judgment had already been rendered, and a warrant issued against his client. The justice refused to open the default, and thereupon Mordant brought the present action, and obtained an order to show cause why the defendant and justice should not be enjoined from executing the warrant. W. P. S. Melvin, for the motion, relied on 2 R. S. 233 [6th Ed. p. 406], § 44 [46], that,—“ Upon the return of a summons personally served, or on the return of an attachment duly served, the justice shall wait one hour after the time specified for the return of such process, unless the parties shall sooner appear.” Mr. Wiles, in person. [MAJORITY — Barrett, J.] Barrett, J. The provisions of 2 R. S. 233, §§ 44, 46, only apply to civil actions in county justices’ courts. There is no similar provision in the district court act, nor in the Revised Statutes under the head of summary proceedings. On the contrary, in 2 R. S. 513 (or 6th ed., vol. 3, p. 826), sections 33 and 34, we find the words, “at the time appointed in the said summons.” This being so, Niles was regular; and equity has never exercised jurisdiction in these proceedings merely to open a default. Mordant had ample time to appear and defend, and there was no fraud in the conduct of the proceedings. Besides, Mordant does not come in with clean hands, in yiew of the manner in wMch he obtained possession. The motion to continue the injunction is denied, and the temporary injunction dissolved, with ten dollars costs.