
    Katie Mullane, Respondent, v. Franklin P. Roberge, Appellant.
    (Supreme Court, Appellate Term,
    September, 1897.)
    Summary proceedings — Tenant excusing his default — Code, section 8064.
    Where a tenant fails to appear upon the return day of a precept issued In summary proceedings, offers no excuse beyond- a statement that the* clerk of his attorney reached the court half an hour late, furnishes to the appellate court no copy of. Ms alleged proposed answer and merely states in an affidavit, designed to open the. default, that he is not indebted to the landlord, it does not appear within the meaning of section 3064 of the Code of Civil Procedure “ that manifest injustice has been done, and (that the defendant) renders a satisfactory excuse for his default,” and hence he is without remedy.
    Appeal from final order in summary proceedings made by the justice of the Eleventh Judicial District Court, in favor of -the plaintiff, upon default of appearance by the defendant.
    
      Frank H. Gray, for appellant.
    E. L. Abbett, for respondent.
   Bischoff, J.

TJpon the plaintiff’s verified petition setting forth the fact of nonpayment of rent due, a precept in summary proceedings was issued, returnable the 8th day of February, 1897, at 8:45 a. m., and was duly served upon the defendant, for whose failure to appear upon the return day at the time specified, a final order was made awarding possession of the premises to the plaintiff, as prayed for by the petition.

Subsequently a motion to open the default and for leave to serve an answer was made before the justice,' which motion was denied, and this appeal from the final order was taken, based upon copies of affidavits which, by stipulation of counsel, are to be given effect as though the original papers.

All that appears from these affidavits is that a clerk of the defendant’s attorney, provided with a verified answer in the proceedings, appeared at the District Court on the return day, but not until 9:16 a. m., half an hour after the time specified in the precept, and then discovered that the case had been called and disposed of, a most natural and orderly result of the failure to observe the process' of the court, and yet we are asked to set aside the proceedings in justice to the defendant.

An appeal of this character is governed by the provisions of section 3064 of the Code of Civil Procedure (applicable to District Courts by § 3213, Code Civ. Pro.), and may only be entertained where the appellant shows that manifest injustice has been done and renders a satisfactory excuse for his default.” See Jewel v. Heinzel, 6 Daly, 411.

Here no excuse for the default Was attempted, and to relieve the party merely upon his confession that he appeared too late would be to encourage laxity of obedience to the mandate of the court and to promote disorder where regularity is essential.

Hor can we say that manifest injustice has been done, since it is not shown that there exists a valid defense to the plaintiff’s demand.

The proposed answer was not apparently among the papers filed with the justice upon the motion to open the default as addressed to him, and it is not furnished upon this appeal. "We. have only the defendant’s statement contained in his affidavit, that he is not indebted to the plaintiff, but no facts .axe. alleged-in contxpy.ersion of the averments of the petition that the rent is due and unpaid.

The defendant’s conclusion that there is-up- indebtedness ¡may, for all that appears, be founded upon an assumed affirmative defense, by-way, of confession and avoidance which may, be found utterly untenable, if tested, ' ........ ' •' "... /’ ' ' . j,,.

, We are not justified, therefore, in granting, the" rélief sought,,' ; Final order affirmed, with.costs. ,. ./ . ‘"'"j j

Daly, P. J., and McAdam J., concur.

Order affirmed, with costs.  