
    Barnett Harris et al., Plaintiffs, v. Leopold R. Treu et al., Defendants.
    (New York Superior Court
    Special Term,
    October, 1895.)
    A court of equity will not interfere to open a judgment in summary proceedings rendered on default in a District Court, where no fraud or want of jurisdiction is alleged.
    Such interference is not authorized by the fact that the District Court jus- ' tice cannot open. a default in such proceedings, but the remedy is by appeal.
    Motion by plaintiff for injunctive relief.
    
      A. Gohen, for motion.
    
      Kwrzmcm c& Frcmkenheimer, opposed.
   Mo Adam, J.

On the return of the precept in summary proceedings instituted in the District Court for nonpayment of rent, the tenants appeared and obtained a short delay to file their answer, which they subsequently submitted, but were told that it was too late, as judgment by default, had been entered and a warrant to dispossess issued. The plaintiffs (the tenants) by their Bill filed herein seek to annul the warrant, open the judgment and reinstate the tenancy, so as to permit "them to pay the rent and costs and discharge the proceedings. The right to such relief is,.strange to say, based upon their own default, not pn the ground of fraud, want of jurisdiction or the like, and is urged on the supposed lack of any other adequate remedy.

The fact th'at the District Court justice cannot open a default taken in summary proceedings does not imply that a court of equity must for that reason supply the absence of the jurisdiction by the assertion of its authority. The proceedings had in the lower court are regulated by statutory enactments which clearly define the rights, duties and remedies of parties thereto; and if the remedy for review with the stay which follows (Code, § 2262) is insufficient for present purposes, it is because the legislature in its wisdom did not intend to further enlarge the rights of tenants summarily proceeded against under said enactments. Indeed, the legislature, to make itself clearly understood, .declared, in section 2265 of the act, that an injunction’ shall not be issued after judgment in such proceedings, except in a - case where the final judgment in an action of ejectment would be stayed thereby, and this is not such a case.

The tenants had their day in court, and if they failed to . avail themselves of any of their legal rights it is because of their own neglect. If, on the other hand, they have been unjustly deprived of any legal rights by the ■ action of the court below, the appeal provided for furnishes a-' complete remedy for [he wrong.

The rule is that where a party is sued in a court of law having exclusive jurisdiction of the subject-matter, he must make his defense there, and cannot resort to equity, unless he is Jvmdered or prevented from making such defense. Equity will not relieve from a judgment at law, except for fraud, accident, surprise or manifest injustice, unmixed with fault or negligence on the complainant’s part (Hilliard Hew Trials [2d ed.], 590); and, oh this principle, an injunction will not be granted if the person seeking it could, by proper diligence, Lave protected himself 'from injury by the ordinary means at law. Cases collated in 2 Daniel’s Ch. Pr. (4th ed.) 1621.

There is nothing which calls for equitable interference with the proceedings of the lower court or the execution of its 'process. See cases collated in 2 Abb. Dig. 770.

The application for injunctive relief must, therefore, be denied.

Motion denied.  