
    CONRAD BOLLER, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants and Respondents.
    BOARD OF SUPERVISORS, THEIR POWER AND AUTHORITY. ULTRA VIRES. ESTOPPEL CREATED BY A FORMER AD JUDICATION, ITS CHARACTER, EFFECT, AND CONDITIONS.
    The Board of Supervisors had no power to execute a lease for an armory, for any portion of the National Guard, of the state of New York organized and existing within the limits of the city and county of New York, without a prior demand for the same, m conformity with section 130 of the act of the legislature of the state of New York, entitled “The Military Code; ” and a lease, executed by said Board without any prior demand having been made in conformity with said section 130, is wholly null and void. The doctrine of “ ulPt'a vires ” applies to such action of the Board of Supervisors.
    
      A demand from the proper military authorities, duly made and countersigned, and a certificate from the Adjutant-General of the state (pursuant to said act) were conditions precedent to any action whatever on the part of the Board of Supervisors towards leasing premises for an armory. The indispensable conditions upon which rested any power or authority of the Board of Supervisors to enter into such a lease were wanting, and in their absence no valid lease could be made. The rent for such premises could not and never did become a county charge, and any covenant on the part of said board to pay rent was null and void on the principle of '■'■ultra vires.”
    
    Neither the county nor the corporation of the city of New York was bound by this lease, nor could the appropriation of the premises to the use of, the Eighth Regiment of The National Guard by a resolution of the Board of Supervisors, and the subsequent occupation and use by said regiment pursuant to the resolution, be deemed a ratification of the lease such as would render it obligatory upon said county or corporation (Fallon v. The Mayor, &c., 4 Hun, 583; Ford v. The Mayor, Ibid. 587).
    In the case at bar, it appears that the plaintiff, in August, 1874, made complaint before the civil justice of the eighth district of the city of New York against the Board of Supervisors and the defendants in summary proceedings under the statute relating to landlord and tenant to recover the possession of said premises. That a summons was issued against said Board and these defendants, and duly served, but no appearance was ever made in said proceedings by these defendants or said Board. That judgment was finally rendered in said proceeding in favor of said plaintiff, and against said board, and these defendants, in substance and effect, that the plaintiff should have possession of said premises because of the non-payment of the rent.
    Were the defendants estopped by this judgment from denying their indebtedness to the plaintiff for the use, occupation, and rent of said premises, claimed by him, and adjudicated upon in said proceedings, and also claimed by him in this action, and can the defendants in this action claim and assert the invalidity of this lease, after such judgment ? In brief, Does that judgment operate as an estoppel ?
    
      Held, that the defendants were not estopped by that judgment, from pleading and establishing and resting their defense upon the invalidity of the lease.
    
      The doctrine, rules, and principles of, and the cases affecting, estoppel, created, by a former adjudication reviewed and considered by the court. Bolton v. Jacks (6 Robt. 166) reviewed and approved. Roderigas v. East River Savings Institution (court of appeals, unreported at date) does not ■ call in question the principles upon which Bolton v. Jacks was decided.
    In summary proceedings to recover possession of premises under the statute (2 R. S. 515, §41), no adjournment can be made except upon the request of a party to the proceedings, and for the purpose of enabling such party to procure his witnesses.
    The statute, in authorizing adjournments for a specified purpose, and upon a specified request, impliedly prohibits all adjournments except such as are so expressly authorized.
    The officer or magistrate before whom the proceeding is pending exceeds his jurisdiction by an unauthorized and illegal adjournment, and he is precluded from the further hearing or the exercise of jurisdiction in the case, and all his future acts and proceedings in the case are void. (Many cases cited in the opinion of the court on this point.)
    Before Speir and Sanford, JJ.
    
      Decided March 20, 1876.
    This action was brought to recover of the defendants the sum of eighty-one thousand dollars and interest, alleged to be due the plaintiff as the rent of the third and fourth floors of certain buildings in the city of New York, leased by him to the Board of Supervisors of the county of New York, to be used and occupied as armories and drill-rooms, for a term of ten years, from May 1, 1871, at a rental of thirty-six thousand dollars per annum.
    The complaint avers that the tenants, the Board of Supervisors, &c., entered into possession on April 1, 1872, and thereupon appropriated and have ever since occupied the premises as an armory for the Eighth Regiment of the National Guard of the state of New York, and that the rent from that day to July 1,1874, is due and unpaid.
    
      The consolidation of the county of New York with the defendants, by act of the legislature, and the consequent liability of defendants to pay such rent, are averred in the complaint.
    The answer denies the authority of the Board of Supervisors to execute the alleged lease, except under the provisions of the act of May 17, 1870, entitled “The Military Code,” and avers that it was executed in violation of the provisions of that act, and without any prior demand having been made in conformity with section 120 thereof; and that, by reason of the absence of such prior demand, the alleged lease was and is wholly null and void.
    Upon the trial, William J. Kane was called as a witness for plaintiff, who testified that since January 1, 1870, he had held the official position of justice of the eighth district court, in the city of New York; that proceedings were had before him, as such justice, in September, 1874, in regard to the premises described in the complaint; that on August 28, 1874, he issued a summons returnable on September 1, following; that on that day, some (me appeared and filed a counter-affidavit; and that the matter was adjourned from time to time, thereafter, until February 16, 1875, when proofs were taken by him, and judgment rendered in favor of the landlord.
    The record or roll of the judgment thus rendered was then produced and read in evidence, on the part of the plaintiff; from which it appeared that on August 19, 1874, the plaintiff made oath in writing, before a notary public, to the effect that on June 1, 1870, by a written lease bearing date on that day, he let and rented the premises above-mentioned unto the Board of Supervisors of the county of New York, for the term of ten years, from May 1, 1871, at the annual rent above stated; that on April 1,1872, the said Board of Supervisors entered into possession, and have ever since occupied said premises ; that the said Board of Supervisors and the mayor, &c., of the city and county of New York, with whom the county of New York had beci >me consolidated, were indebted to him in the sum of eighty-one thousand dollars for the rent of said premises pursuant to said lease ; that the relation of landlord and tenant existed between himself and the said Board of Supervisors, and the said mayor, &c., in respect to said premises ; and that the said premises were in the occupation of the said Board of Supervisors and of the said mayor, &c., as tenants, and of the Eighth Regiment of the National Guard of the state of New York as their under-tenant; that the said regiment continued to occupy the premises, and that the said county, and the said mayor, &c„, held over and continued in possession, after default in the payment of such rent, without his permission. It further appeared from such record that this affidavit was presented to the said justice, and that an application was made to him thereon on August 28, 1874, for process and proceedings to remove the Board of Supervisors, the mayor, aldermen, and commonalty of the city of New York, George D. Scott, and the said Eighth Regiment of the National Guard from the said premises, on the ground set forth in said affidavit. That a summons in due form was thereupon issued, directed to the said Board of Supervisors, to these defendants, to Colonel George D. Scott, commanding the Eighth Regiment of the National Guard of the state of New York, and to the said Regiment as tenants, returnable on September 1, 1874, requiring them and each of them to remove from the premises, or to show cause on that day why possession thereof should not be delivered to the landlord. That the summons was duly served on the Board of Supervisors, these defendants, George D. Scott, and the said Regiment; that on September 1, 1874, the landlord appeared and demanded the rent and possession ; that “the tenant” appeared and filed counter-affidavits, viz., the affidavit of George D. Scott, colonel commanding the Eighth Regiment of the Rational Guard, denying any knowledge or information sufficient to form a belief as to the indebtedness of the Board of Supervisors or of the Mayor, &c., to the plaintiff for rent, and denying that the said Eighth Regiment were under-tenants of the premises. The record shows no appearance by or on behalf of the Board of Supervisors, or by or on behalf of the defendants herein. It further appeared by such record that the matter was thereupon adjourned as follows : from September 1 to September 22 ; thence to October IB ; thence to October 27 ; thence to November 10; thence to December 8; thence to December 15 ; thence to January 5, 1875 ; thence to January 19 ; thence to February 2; thence to February 16; on which day, after hearing the allegations and proof of the landlord, judgment was rendered in his favor, that he have possession of the premises by reason of the non-payment of said rent.
    Upon this proof, together with evidence showing a proper demand for the rent upon the comptroller of the city of New York, the plaintiff rested his case.
    It was thereupon admitted, for the purposes of the trial, that the lease in question was executed without any demand having been made upon the Board of Supervisors, such as is required by section 120 of the Military Code of 1870 ; but objection was duly taken to the materiality of this fact, and to its admissibility in evidence, on the ground of an estoppel claimed to have been created by the adjudication in the district court: and exception was duly taken by the plaintiff to the ruling of the court, thereupon, made directing a verdict for defendant. The said exception was ordered to be heard at the general term in the first instance, judgment in the meantime being suspended, and the case is now before the court for decision accordingly.
    
      Mr. Wingate, for plaintiff, in support of his exception.
    
      Mr. Carter, for defendant, in opposition.
   Sanford, J.

The Board of Supervisors of the county of New York acted without authority of law in hiring the premises mentioned in the complaint, and in accepting from the plaintiff the lease upon which this action is brought. By section 130 of the Military Code (Laws of 1870, ch. 80), they were authorized, in certain cases, and upon certain contingencies, to erect or rent armories and drill rooms ; but this could only be done under the particular circumstances prescribed by the act, and in accordance with its provisions. A demand from the proper military authorities, duly made and countersigned, together with a certificate from the Adjutant-General of the state, was a condition precedent to any action whatever on their part in this direction. No such demand for an armory to be used by the Eighth Regiment of the National Guard of the state of New York, or by any of the companies composing such regiment, was ever made by any one. In short, the indispensable conditions, upon which depended the power and authority of the Supervisors to enter into the lease, were never complied with, and, in the absence of any compliance with these indispensable conditions, no valid lease could be made. The rent reserved by the plaintiff’s lease never became a county charge, and any covenant on the part of the Supervisors to pay such rent was null and void, on the principle of ultra vires. It is suggested, on behalf of the plaintiff, that the provision of the statute with respect to a demand and certificate is applicable only to the case of armories provided for the use of separate companies, and that, by the terms of the act, the procurement of regimental armories, to be used by several companies, is made discretionary with the Supervisors and the Inspector General; but such discretion is accorded and can be exercised only as an alternative to the erection or hiring of a company, troop, or battery armory, in compliance with a demand therefor, duly made by a captain, or commandant of a troop, battery, or company, countersigned by the commandant of a regiment, battalion, brigade, or division. The conditions of the statute must be complied with, and it must be made to appear, in the manner thereby prescribed, that the exigency has arisen with respect to at least one company, troop, or battery, before the Supervisors and the Inspector General are at liberty to consider the expediency of procuring suitable accommodations for several. When it has been made to appear, in the manner pointed out by the act, that the conditions exist, upon which an armory for the use of a single troop, battery, or company may be erected or rented, then, and not till then, may the supervisors either erect or rent such armory, or provide a regimental or battalion armory, to be used by several troops, batteries, or companies, as the Inspector General and the Board of Supervisors of the county shall deem expedient. This language readily admits of a construction which would make the approval of the Inspector General essential to the adoption of either alternative ; but it would be absurd to suppose that the legislature intended to prohibit the Supervisors from procuring the armory accommodations required by a single company, troop, or battery, unless and until the necessity therefor should be made to appear by a demand from the proper company and regimental authorities, corroborated by a certificate from the Adjutant General of the state, and, by the very same enactment, authorize and empower them, in their discretion, with the assent of the Inspector General, but without any demand therefor whatever, and without any certificate from any one, to incur the expense of procuring the much more expensive, and perhaps less needed, accommodations of like character that, would suffice for several companies, or even a whole regiment or battalion. Neither the county nor the corporation of the city was bound by the lease, nor can the appropriation of the premises to the use of the Eighth Regiment, by a resolution of the Board of Supervisors, for the use and occupation thereof by the Eighth Regiment, pursuant to such resolution, be deemed a ratification of the lease such as will render it obligatory upon the defendants (Fallon v. The Mayor, 4 Hun, 583 ; Ford v. The Mayor, Ibid. 587).

The defendants were therefore entitled to a verdict upon the admitted facts of the case, unless, by the judgment of the justice of the district court, they were estopped from denying their indebtedness to the '■ plaintiff for the rent claimed by him in such proceedings, and in this action, to be in arrear, and from asserting the invalidity of the said lease.

Does the judgment in such summary proceedings operate as such estoppel 1

There are many cases in which estoppels are sanctioned and sustained on equitable grounds. But the estoppel created by a former adjudication is not generally of this character, though it maybe, when its interposition is necessary for the protection of the officers of the tribunal before which it was rendered, or for that of innocent third persons who have taken action to their detriment on the faith of it. In general it is merely a “technical estoppel,5’ without other sanction or support than that of public policy. The maxim “ interest reipublicce,ut sit finis litium'1'’ discloses its origin and the ground on which it rests. It discourages litigation, to the advantage of the community, but like all other technical estoppels, it sometimes shuts out the truth, to the detriment of the individual. It is.for this reason that technical estoppels are deemed ' “odious,” and are not favored in law.

In the present case no particular equity in favor of the plaintiff excludes the defense upon which the defendants rely, and it remains to be seen whether this summary judgment will have the effect of a technical estoppel.

To operate as an estoppel, a former adjudication must have been rendered by a tribunal having a complete jurisdiction over both the parties and the subject-matter involved. Unless these conditions exist the judgment is not conclusive, either in evidence or as a plea. With respect to courts having general jurisdiction, the intendment of law is always in favor of the validity of their judgments. In regard to tribunals of limited and special jurisdiction there is -no such intendment. Every fact necessary to uphold the jurisdiction of inferior courts must either appear by the record or be affirmatively shown by evidence aliunde. But whatever be the extent of the powers of the court, whether general or limited, if it proceed without jurisdiction, its judgment will be a nullity;' and the record thereof is never conclusive as to the recital or statement of a jurisdictional fact, unless it be to the extent of protecting its- officers or other innocent persons who have taken action to their detriment on the faith of it.

These general observations express the settled and established doctrine on this subject. Any apparent conflict with, or exceptiona.1 departure from it, is traceable to the difficulties encountered in its application' to particular cases. The authorities on the subject were compiled and examined by this court with great fulness and particularity in Bolton v. Jacks (6 Robt. 166); and although the soundness of the judgment rendered in that case, which was to the effect that in admitting to probate the will of a testator not at the time of his death an inhabitant of New York, the surrogate of this county exceeded his jurisdiction, and that his proceedings were void, and could be attacked collaterally, has been recently questioned in the prevailing opinion of the court of appeals, in the unreported case of Boderigas, administratrix, &c. v. East Biver Savings Institution, to which more particular reference will be made hereafter. I am not aware that the general doctrine there laid down by this court has been repudiated or impugned. The doctrine was stated in that case in the following terms : “ Want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general, limited, or local jurisdiction, or of record or not; and the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or inferior, of general or limited jurisdiction, is not conclusive, but only prima facie evidence of the facts recited; and the party against whom a judgment is offered is not, by the bare fact of such recitals, estopped from showing by affirmative facts that they were untrue.” Judge Allen’s opinion, in Dobson v. Pierce (12 N. Y., 164), and Judge Mullin’s, in Potter v. Merchants’ Bank (28 N. Y. 654), were cited, among many others, as directly in point.

Applying this general doctrine to the record of the judgment now relied upon as a conclusive estoppel, we find, in the first place, that it was rendered by an officer of local and limited jurisdiction, in special statutory proceedings of a summary character ; secondly, that, by virtue of the statute, the jurisdiction of such officer depends upon the existence as between the parties, of the particular relation of landlord and tenant, under an agreement whereby the premises in question are held (2 R. S. 513, § 281; Benjamin v. Benjamin, 1 Seld. 383, 387). I am of opinion that the existence of the relation of landlord and tenant between the parties under an agreement is a jurisdictional fact, the absence or non-existence of which renders a judgment in summary proceedings on the recovery of demised premises null and void ; and that it was therefore competent for the defendants to show, as they have shown by the admission of the plaintiff, that no such relation existed, inasmuch as the lease recited in the record as establishing that relation was executed by the supervisors without legal authority. The recitals as to such a lease contained in the record made the judgment prima facie evidence of its existence and validity, but that evidence was effectually rebutted, as it well might be, by the plaintiff’s admission, and the judgment was thus shown to be null and void for want of jurisdiction of the subject matter. Had the lease been valid the relation of landlord and tenant would have existed, the jurisdiction of the justice would have attached, and the judgment, in so far as it held that the tenant remained in possession after default in the payment of rent, pursuant thereto, without the permission of the landlord, would have been conclusive in this suit of the defendants’ liability to pay such rent, unless the jurisdiction of the justice was assailable on other grounds.

I should have no hestitation in directing judgment for defendants upon the verdict in this case, upon this ground alone, were it not for the recent decision of the court of appeals, in the case of Roderigas v. East River Savings Institution, above referred to. But for that decision, the case of Bolton v. Jacks would not only warrant such a direction, but, as a controlling authority, would imperatively require it. In Birck head v. Brown (5 Sandf. 134) it was remarked that, “under a system of jurisprudence which clothes those by whom the law is to be declared with so large a discretion as our own, it is only.by their scrupulous adherence to the decisions of their predecessors that even a resemblance of stability and certainty in the administration of justice can be attained or preserved, and hence it is only where the error in prior decisions is manifest and grave, the violation of principle plain and undeniable, that the obligation of judges '•stare decisis ’ ceases.” In examining the prevailing opinion adopted by the court of appeals in the case referred to, the conclusions of which were sustained by a bare majority of one, three of the learned judges of the court, including the chief justice, dissenting therefrom, I find nothing that calls in question the principles upon which the case of Bolton -o. Jacks was decided. It is true that the soundness of the decision in that case was questioned, in so far as it proceeded upon the assumption that the habitation of a testator, at the time of his death, was a jurisdictional fact, which, if erroneously decided by the surrogate in admitting a will to probate, might be collaterally attacked. But the learned judge who questions the correctness of that decision admits that the case before him, which is closely analogous, is not free from doubt, and that its decision either way would be confronted with some authority, and meet with some logical difficulties; and he is careful to declare that his own conclusions aie “based upon the construction of the statutes of this state regulating the jurisdiction and proceedings of surrogate’s courts.” Moreover, he asserts the same general principles which were laid down and relied on in Bolton v. Jacks, and which I have but reiterated above. Thus he remarks that “no court, no matter how general its jurisdiction may be, which proceeds without jurisdiction in the particular case, can make a valid record or confer any rights. When a statute prescribes that some fact must exist before jurisdiction can attach in any court, such fací must exist before there can be jurisdiction, and the court can not acquire jurisdiction by erroneously deciding that the fact exists and that it has jurisdiction.” “But where general jurisdiction is given to any court over any subject, and that jurisdiction depends in the particular case upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence, its decision upon the question of its jurisdiction is conclusive until reversed, revoked, or vacated, so far as to protect its officers and all other innocent persons who act upon the faith of iV I find nothing in this language inconsistent with the general doctrine of Bolton v. Jacks, or which must needs be construed as prohibiting its application to the case now under consideration. Nor does it seem to me that the conclusion at which I have arrived in this case is in conflict with that which was reached 'by the court of appeals in Roderigas v. East River Savings Institution. I may add that in the recent case of Evans, Ex’r, v. Post (5 Hun, 338), the supreme court in the fourth department, held that in an action for the recovery of the rent of premises from which the defendant had been removed by summary proceedings to recover possession, instituted by the plaintiff pursuant to a notice terminating the tenancy, the record of such proceedings was held to be “evidence only of the fact that the right of the defendant to continue in possession had ceased, and that the plaintiff was entitled to. possession, and was not legal evidence of the lease.” I therefore hold that the record is not a conclusive estoppel; that the plaintiff’s exceptions should be overruled, and that the defendants should have judgment on the verdict.

But the record in question discloses on its face another ground, on which, in my opinion, the validity of the judgment may be successfully assailed. The statute provides (2 R. S. 515, § 41) that the hearing in summary proceedings for the recovery of demised premises may be adjourned, upon the request of either party, for the purpose of enabling such party to procure his witnesses, whenever it shall appear to be necessary. It does not appear by the record that such an adjournment ever was, or appeared to be, necessary for the purpose specified, or for any purpose, nor does it appear that either party ever requested any adjournment. There is no recital to that effect, and yet it does appear that on the return day of the summons the hearing was adjourned, and that, subsequently, several successive adjournments were had. In purely statutory proceedings before tribunals of special and limited jurisdiction the provisions of the statute must be strictly complied with, and strict compliance therewith must be affirmatively shown, either by the record or otherwise. ISTo intendment in favor either of the acquirement or retention of jurisdiction is warranted. By expressly authorizing adjournments for a specified purpose, and on a specified condition, the statute impliedly prohibits all adjournments except such as are expressly authorized.

By an unauthorized adjournment the magistrate or officer before whom the proceeding is pending exceeds his jurisdiction, and his future proceedings are void. It has been repeatedly held that unauthorized adjournments preclude the further exercise of jurisdiction in ordinary suits at law in justices’ courts, and that such suits are thereby discontinued (Proudfit v. Humman, 8 J. R. 391 ; Hogan v. Baker, 2 E. D. Smith, 22; Wight v. McClave, 3 Id. 316).

Here the adjournments in question were not only unauthorized but expressly prohibited. The statute expressly declares (section 41) that an adjournment shall in no case exceed ten days. The record shows that the very first adjournment was in palpable violation of this provision, inasmuch as it was for a period of three weeks. The second adjournment was for the same period. The third, fourth, fifth, and sixth were each for two weeks; the seventh for one week, the eighth for three weeks; the ninth, tenth, and eleventh were each for two weeks. No authority for such an excess of jurisdictional power has been cited, and I have been able to find none. There seems to be no alternative to holding the judgment in excess of jurisdiction, and therefore null and void upon this ground ; certainly as' against ■ these defendants, who never appeared, and who could therefore neither have requested or assented to such adjournments. Indeed, it is not easy to perceive how their request or assent, if made or given, could have operated to warrant what the statute expressly forbids.

I am therefore of opinion that the judgment in question is void on its face.

As the views I have adopted dispose of the case, I deem it unnecessary to consider the other objections to the validity of the judgment which were urged on “ the argument by the learned counsel for the defendants.

The plaintiff’s exceptions are accordingly overruled, and judgment is ordered for the defendants upon the verdict.

Speir, J., concurred. 
      
       Affirmed in court of appeals, December 21, 1875.
     