
    People ex rel. Allen v. Murray.
    (New York Superior Court
    General Term,
    January, 1893.)
    The judge before whom a summary proceeding to recover the possession of real property is instituted, has no legal power to adjourn the matter to a future day on his own motion in default of an answer by the tenant.
    On September thirtieth, the return day of a precept in summary proceedings instituted in a District Court, the justice demanded of the attorney who appeared for the landlord, proof of his authority to appear. The attorney refused to make such proof and moved for judgment and the usual warrant to dispossess the tenant. The justice on his own motion adjourned the proceedings to October third, to enable the attorney to produce proof of his authority to appear. On the adjourned day neither the landlord nor his attorney appeared and the proceeding was dismissed. Held, a proper case for a mandamus commanding the justice to do what, on September thirtieth, he ought to have done.
    ' Appeal from an order entered October 17, 1892, under which a peremptory mandamus was issued, requiring the appellant, as justice of the District Court of the city of New York for the eleventh judicial district, to make a final order in summary proceedings and to issue a warrant for the possession of certain premises.
   The following opinion was given on the decision of the motion:

MoAdaju, J.

Assiuning for present purposes, that section 1382 of the Consolidation Act (L. 1882) relating to actions in the District Courts, applies to summary proceedings, and that an appearance by the landlord on the return day is necessary to prevent a dismissal of his proceeding, we must inquire whether the appearance by Mr. Secor was not sufficient to satisfy all legal requirements. Mr. Secor was an attorney and counselor, admitted by the Supreme Court to practice law in all the courts of the state. In courts of record his authority would be presumed. Denton v. Noyes, 6 Johns. 296, followed as an authority in Vilas v. Plattsburgh, etc., R. Co., 123 N. Y. 453. True, the rule never applied to Justices’ Courts, because there are no attorneys within the professional meaning of that term in these courts. Hughes v. Mulvey, 1 Sandf. 92; Fox v. Jackson, 8 Barb. 355; Sperry v. Reynolds, 65 N. Y. 119. There is another reason. Prior to the Constitution of 1846, and the Judiciary Act of 1841, passed in aid ofit, each court of record (even the old Marine Court) regulated the admission of its own attorneys, and had separate rolls on which appeared their honored names. In this manner the attorneys entitled to practice in each court were made known to its judges (See N. Y. Const, of 1777, art. 21), but these regulations never reached the Justices’ Courts, which seem to have been regarded as sort of “ go-as-you-please ” tribunals, in which any one was entitled to practice, whether licensed to do so or not. The power emanated from the client — not the court. The cases cited, founded on the old rule, no longer apply to the District Courts, in which attorneys are recognized as officers by force of express statute. The act of 1851 (Chap. 344, § 30), provides for an extra allowance of costs where an attorney is actually engaged in the prosecution or defense of the action, and by the Laws of 1862 (Chap. 484), it is not only a misdemeanor to practice in these courts without being admitted to the bar, but all the rules and regulations of the Supreme Court are made applicable thereto so far as the same can be made applicable, and those relating to attorneys and counselors may well be so applied in all their rigor. This was evidently the legislative intent, and effect must be given to it. Newburger v. Campbell, 9 Daly, 102. The act of 1862, supra, was designed to effect a radical change by driving away from these courts a class of irresponsible, unlicensed practitioners, tolerated under the old rule, by substituting in their stead ■— under the new one ■—• attorneys of the Supreme Court, whose office protected both court and litigants from all fear of imposition. It was an effort to elevate the tone, character and dignity of the District Court by improving its surroundings. It was a much-needed reform and has worked well. "When progress is made its concomitants go with it; all look forward-—not backward. Such being the present relation between the District Court and the Supreme Court attorneys, the justice, who knew Mr. Secor was an attorney, had no power to call upon him to produce a special authority to appear for Mr. Allen—his office conferred that right. The tenant did not question Mr. Secor’s. right to appear, and the justice was not called upon to dispute it.

The nature and extent of the remedy now applied for will next be considered. The distinction is, of course, to be observed between a direction to an inferior tribunal to act and a command by mandamus directing it how to act. Thus, mandamus may command the inferior tribunal to act and pro- • ceed to judgment, yet it will not, as a rule, prescribe what judgment to give. The mandate is that the officer proceed, adjudicate and exercise his judgment upon the questions of law and fact involved, leaving whatever error may be committed to be corrected on appeal after the decision is filed. While the determination of the inferior court upon the merits will not be controlled by mandamus, yet, if it has erroneously decided some question of law or of practice presented as a preliminary objection, and upon such erroneous construction has refused to go into the merits of the case and there is no other remedy, mandamus will lie to compel it to proceed. Costello v. St. L. C. Ct., 28 Mo. 259. In People v. Mayor, etc., 10 Wend. 393, 397, Nelson, C. J., referring to mandamus, said that, “ Whenever a legal right exists, the party is entitled to a legal remedy, and when all others fail, the aid of this may be invoked.” This case and others show that when a specific duty is imposed by statute on public officers, they may be compelled to execute it by mandamus. The office of the ■writ and its extent are well stated by Chief Justice Spencer in People v. Supervisors, 12 Johns. 415, and that is “to-require the persons to whom it is directed to do some particular thing which appertains to their office or duty, and which the court issuing it supposes to be consonant to right and justice; and that if the party making the application has a legal right and no other specific remedy, the writ generally goes.” The party aggrieved is bound to show us the foundation of the proceeding that the specific act sought to be-coerced is the duty of the person against whom the writ is directed, and that such person has no discretion as to its exercise. The statute under which the original proceeding in this matter was taken provides, that “if sufficient cause is not shown upon the return day of the precept * * * the justice must make a final order, awarding to the petitioner the delivery of the possession of the property.” Code, § 2249. The phrase “ sufficient cause,” to the contrary, means some legal reason why the order should not be made, such as the filing of an answer creating an issue, or the discovery- of objections fatal to the proceeding or the jurisdiction of the magistrate. In cases where no such impediment exists, the statute is mandatory that the justice “must” make the final order, and he has no discretion concerning it. While the justice had the right to take whatever time was needed to examine the papers to determine whether they followed statutory requirements, he had no power to unreasonably delay the proceeding, nor had he authority to adjourn it on his own motion without the filing of an answer to the consent of parties (Ahrens v. Purlee, 63 How. Pr. 50), and all his proceedings taken after the return day of the precept are in consequence coram non jjudice and void, and the matter must be treated as if no such proceedings had followed. The writ of mandamus has been given to compel the entering of judgment where nothing remained but the mere ministerial duty of making the proper entry. Williams v. Saunders, 5 Cold. 60; Smith v. Moore, 38 Conn. 105. Indeed, in a case like the present, the signing of the final order might he considered as merely ministerial, corresponding in this respect with the duty of the clerk of a court of record in entering the judgment of the court, an act clearly enforceable by mandamus. Smith v. Moore, 38 Conn. 105. The clerk could not, by adjourning the performance of the act for a week or any other stated period, absolve himself from his statutory duty, nor could he then by any act of his declare the proceeding terminated and avoid his duty. There is no substantial difference between the case put and the one now before the court. The statute, as its title indicates, intended the procceeding to be summary,” short, sharp, decisive, and the legislative purpose and intent must be respected. If an answer had been filed, or if objections had been made which necessitated an adjournment or required judicial examination, a case calling for the exercise of judicial judgment might have been presented, and a different question would have arisen, so in regard to motions to adjourn after issue joined. Code, § 2218. The tenant not having questioned IVIr. Secor’s authority, there was no issue of that kind raised calling for decision, and the justice had no alternative but to obey the plain mandate of the law, by making the final order which the statute requires he shall make, where no legal reasons exist to the contrary. The justice having neglected to perform the specific duty imposed by statute, the party making the application having a legal right to its performance, with no other remedy, and the question being one about which there was no discretion, mandamus, which is a remedial writ, will lie to. compel the performance of the duty omitted, and this without infringing any of the elementary rules before referred to. Although of a quasi judicial nature, the act required was purely clerical or ministerial in its character, not calling for the exercise of judgment and admitting of but one result, which was that imposed and specifically pointed out by the statute conferring the authority to act, and as Judge Davies, in People v. White, 3 Abb. Pr. 5, held, the justice “ not having performed a duty clearly enjoined upon him by law, a mandamus is the proper remedy to compel him to do so,” or otherwise there would be a complete failure of justice, the party aggrieved having no other remedy to obtain his legal rights. The relator is, therefore, entitled to. a peremptory mandamus commanding the justice to sign the final order as of September 30, 1892, and to issue his warrant thereon in due form (Code, § 2251), that the relator may obtain the possession to which he is by law entitled.

WilUcMn II. Secor, for relator (respondent).

Willicum Allen, for appellants.

Per Ouria/m.

The relator is the owner and landlord of premises No. 259 West Forty-seventh street, in the eleventh judicial district in the city of New York. On the relator’s petition a precept was issued, requiring a tenant to remove from the premises, or show cause before the District Court for said district, on the 30th day of September, 1892, why the possession of the said premises should not be delivered to the landlord. The petition and precept met the requirements of the statute in both form and substance, and the precept was duly served upon the tenant. The controversy arises over what occurred in the court at the time the precept required the tenant to show cause, to wit, the said 30th day of September, 1892. At that time one William IT. Secor, for many years a member of the bar of the state of New York, a frequent practitioner in said court, and personally well known to the justice of said court, arose and stated to the court that he appeared as attorney for the landlord in the proceedings under consideration. The justice demanded of said Secor that he show some proof of his authority to appear. Said Secor refused, and failed to show the justice any evidence of his right or authority to appear in said proceedings, and moved for judgment and the usual warrant to dispossess the tenant for nonpayment of the rent; the said tenant, although present, having failed to file an answer as required by section 2244 of the Code of Civil Procedure. The justice thereupon, on his own motion, adjourned the proceedings to the following court day, which was the 3d day of October, 1892, for the purpose, as stated by said justice, of enabling said Secor to produce some pi’oof of his authority to appear for said landlord in said proceedings.”

At the adjourned day, on October third, the tenant appeared in person; Secor did not appear, nor was the landlord present or represented by attorney, and thereupon the justice dismissed the proceedings.

Upon the application of the landlord, supported by affidavits, this court thereupon made an order requiring the said justice to show cause why a peremptory mandamus should not .issue, directing the said justice to issue a warrant for the pos.session of said premises, pursuant to the prayer of the landlord’s petition. The moving affidavits and the order to show cause were served both upon the justice and the tenant, but the tenant failed to appear. The justice appeared, submitted .an affidavit substantially charging Mr. Secor, upon information .and belief, with misconduct in prior cases, and claiming this to have been sufficient to call upon him for proof of his authority to appear in the proceeding in question, and a hearing was thereupon had, which disclosed the facts above stated, as well as the additional fact that Mr. Secor had been fully authorized by the landlord to appear as he did, and finally resulted in an order granting the landlord’s application, and ■commanding the justice to make the proper final order and to issue a warrant in conformity therewith. From this order the justice alone appeals. On the appeal, it was conceded that the mandamus has been complied with, that the warrant has been issued and executed, and that the tenant has acquiesced.

The facts being as stated, the substantial question presented by the appeal is whether the said justice had power to adjourn the proceeding to a future day on his own motion, and without an answer having been filed by the tenant. The power to adjourn is conferred by statute, viz., section 2248 of the Cocle, and is to be exercised only at the time when issue is joined at the request of either party, and upon proof that an adjournment is necessary to enable the applicant to procure his necessary witnesses. If sufficient cause is not shown on the return of the precept (which includes a case in which no answer is filed by the tenant), the justice, under section 2219, must make the final order, and under section 2251, must issue his warrant. These sections constitute substantially an incorporation into the Code of Civil Procedure of the provisions •of a former statute which had been enacted for the express purpose of giving to a landlord a summary remedy against a defaulting tenant. The remedy thus provided is not an action, but a summary proceeding.

In a case arising under the former statute (Boller v. Mayor, etc., 40 N. Y. Super. Ct. 523), in which, by the way, a counter affidavit had been filed, it was expressly held by this court at General Term, that in such a summary proceeding there is no power or jurisdiction in the justice to adjourn the hearing, except upon the request of either party, and for the purpose of enabling the party applying, to procure his witnesses, if that should appear to be necessary.

In Kiernan v. Reming, 7 Civ. Proc. Rep. 311, the same rule was laid down and enforced upon the authority of Boller v. Mayor, etc,, 40 N. Y. Super. Ct. 523, in a case which had arisen under the present Code.

In Ahrens v. Burke, 63 How. Pr. 50, decided in 1881, the General Term of the Court of Common Pleas, as the appellate tribunal for the determination of appeals from District Courts, expressly held, that even in an action, the justices of the District Courts in the city of New York have no power to adjourn the case without an answer having been filed on the return day.

And in Deutermann v. Wilson, 15 Civ. Proc. Rep. 411, ■decided in 1888, the General Term of the Court of Common Pleas, in passing upon the power of the clerk of a District Court to adjourn the court in the absence of the justice, ■.expressly-stated that the justice cannot adjourn the hearing of a summary proceeding without an answer having been filed.

These four cases have never been overruled by the Court of Appeals and consequently we find ourselves concluded by authority, at least as far as summary proceedings are concerned.

True, there are some cases which seem to lend color to the contention of the appellant, but they can be readily distinguished. Merwin v. Rogers, 6 N. Y. Supp. 882, and Horton v. Auchmoody, 7 Wend. 200, were actions, and not summary proceedings, and the question involved related to the personal liability of the justice. In Boller v. Mayor, etc., 66 N. Y. 386, there was a request by the subtenant and consent by the landlord.

Some other cases hold that where the parties consent or do not object to an adjournment, the jurisdiction is not lost. But it is not necessary to enlarge upon them, because they do not apply. In the case at bar the landlord appeared by a duly authorized attorney, consented to nothing, waived nothing, and insisted upon his right to the final order and warrant in default of an answer by the tenant.

We also fail to see how the decision of Boller v. Mayor, etc., 66 N. Y. 385, can be criticised, as was done in Goff v. Vedder, 12 Civ. Proc. Rep. 358, by a reference to the decision by the General Term of the Supreme Court, fourth department, in People ex rel. White v. Loomis, 2 Civ. Proc. Rep. 278.

The case last referred to presented a question as to the time a justice of the peace had in summary proceedings to render his final decision after the submission of the cause to him, and it was held, the statute being silent in regard to it, the provision applicable to an action in the court of such a justice applied, and that under that the final decision should have been rendered within four days after the submission of the cause to him, and in coming to that conclusion the general statement was made that where summary proceedings aro instituted before a justice of the peace, all the provisions in respect to the mode of procedure in actions in Justices’ Courts apply to such proceedings, except as otherwise prescribed by statute.

In Boller v. Mayor, etc., 66 N. Y. 385, it was held that the statute did prescribe that no adjournment should be had except as authorized by its terms, and this construction of the statute has never been disapproved by the Court of Appeals.

Other questions involved in the application for the mandamus have been so fully discussed by the learned judge who made the order appealed from, that further elaboration is unnecessary.

Suffice it to say that the justice had no power to adjourn the proceeding in default of an answer on the part of the tenant; that the authority of Mr. Secor to appear for the landlord was to be presumed, and that under the circumstances it was the duty of the justice to make the final order and issue a warrant in conformity therewith. And it further appearing on the motion for a mandamus that Mr. Secor in fact had had ample authority to appear for the landlord as he did, and that the tenant had nothing to say in opposition to the motion, the case was a proper one for a mandamus commanding the said justice to do what on the 30th day of September, 1892, he ought to have done.

The order appealed from should be affirmed, with fifty dollars costs and disbursements.

Order affirmed.  