Felleni v. Cini , 152 N.Y.S. 695 ( 1915 )

Kapper, J.,

concurring. I concur. We are asked to limit the remedy of a tenant in summary proceedings, who was not served with the precept and over whom the court, therefore, did not obtain jurisdiction to an appeal from the final order entered upon his nonappearance under section 311 of the Municipal Court Act. That section permits of an appeal from a judgment rendered in “ an action ” wherein the defendant did not appear and the summons was not personally served upon him. If we assumed that a summary proceeding was included within the words “ an action ” contained in section 311, sufra, I do not think the tenant is limited to that section for relief. Section 253 of the same act provides that where a final order in a summary proceeding is made without the service of process, the court or a justice thereof within the district may at .any time upon motion open such default and set aside or vacate such final order. The language immediately following, viz, “ and set the * * * proceeding down for pleading, hearing or trial, as the case may require,” is claimed to support a ruling that the only relief which the Municipal Court can give is to set the proceeding down for pleading, hearing or trial; in other words, that a party of whose person the court never obtained jurisdiction must submit to the jurisdiction or suffer the taking of his property without due process. Either this, or he must appeal, is the contention. I appreciate that a number of cases in the Appellate Term, first department, so hold, but I cannot assent to that view. The purpose of section 253 is plain enough and it should not be read so as to command a trial where jurisdiction never was obtained. The claim is unwholesome and ought not to be upheld by specious reasoning. The words, ‘ ‘ and set the action down for pleading,” etc., have their use in appropriate cases, but cannot limit the right given by the section to vacate a judgment for lack of jurisdiction. That is what the legislature intended when it amended section 253 in 1907. Laws of 1907, chap. 304.

Order reversed, with costs.