Laughlin, J.:
This is a suit in equity to have a final order in summary proceeds ings declared null and void and to enjoin its use, particularly as evidence of the existence of the relationship of landlord and tenant between defendant and plaintiff. It appears that on the 4th day of April, 1906, the defendant presented a duly verified petition to a justice of the peace of the town of Huntington, county of Suffolk, N. Y., alleging that he was the “ lessor ” of certain real property therein described situate in said town ; that he “leased” it to the plaintiff on the 15th day of February, 1905, for one year from the first day of April thereafter at a stated rental, payable semi-annually on the first days of April and October; that the plaintiff entered into possession of the premises but has not paid the rent, payment of which was personally demanded in said town ; that three days’ notice in writing, requiring in the alternative the payment of the rent or possession of the premises, was duly served on the plaintiff on the twenty-second day of March and service thereof was also made on the 30th day of March, 1906, by attaching it to the door of the building on the premises, pursuant to the provisions of the Code of Civil Procedure, “ there being no person to whom said notice could be served upon or delivered to; ” that the rent had not been paid nor had possession been surrendered, and that plaintiff held over and continued in possession without his permission after such default in the payment of rent and demand, and prayed for a final order to remove him. A precept in due form was issued, returnable on the 30th day of. April, 1906. It was served by affixing it to the front door of the house, the return of the constable showing that he was unable to find the plaintiff or anyone on the premises upon whom it could be served. The plaintiff failed to appear at the time the precept was returnable and a final order and warrant were issued. The defendant thereafter brought an action against the plaintiff in the Supreme Court to recover the rent and for the value of certain improvements alleged to have been made on the demised premises at the request of the plaintiff. The plaintiff had no notice or knowledge of the dispossess proceedings at the time and did not learn thereof until the 17th day of May, 1907. He then brought this action to have the final order annulled and to enjoin the defendant from using it as evidence upon the ground that the summary [584] proceeding was fraudulently instituted and conducted in that the averments in the complaint that plaintiff rented the premises and entered into possession thereof were false and that defendant pretended ignorance of the whereabouts of the plaintiff, who resided in the county of Mew York and had a place of business in the city of Mew York, and caused substituted service of the precept to be made.
The plaintiff' concedes that he had an understanding with. the defendant with respect to renting the premises after certain repairs should be made thereto, and that pursuant thereto and with the expectation of consummating a lease, he forwarded certain carriages to the premises, which were delivered into the custody of the defendant. ' ‘
Courts of equity possess jurisdiction to cancel judgments, orders or decrees, or to enjoin their enforcement in whole or hi part for fraud, but this jurisdiction will only be exercised in cases of necessity and where there is no adequate remedy at law. (Huggins v. King, 3 Barb. 616 ; Farrington v. Bullard, 40 id. 513 ; Dobson v. Pearce, 12 N. Y. 156 ; Richardson v. Trimble, 38 Hun, 409 ; Hinckley v. Miles, 15 id. 170 ; Tracy v. Shannon, 16 Civ. Proc. Rep. 448 ; Patterson v. Naehr, Id. 449.) Equity may entertain jurisdictioh to enjoin the introduction, in an action at law, of evidence obtained by fraud and duress. (22 Cyc. 811; Wells v. Bridgeport Hydraulic Co., 30 Conn. 316 ; Callender v. Callender, 53 How. Pr. 364.)
In the case at bar the plaintiff claims that he was not a tenant and was never in possession, and, therefore, the only possible prejudice that may befall him 'in consequence of the summary proceeding is the use of the final order as evidence of the relationship of landlord and tenant, and, therefore, probable prejudice on this theory is the only basis for equitable relief. If the final order be not open to collateral attack, there can be no doubt it would be conclusive on that question. (Reich v. Cochran, 151 N. Y. 122.) If the petition gave the justice jurisdiction and the service was in conformity to the requirements of the Code" of Civil Procedure (§ 2240), although the final order was granted on substituted service and by default, it would be as binding and conclusive as if the plaintiff had. appeared. (Mutual Reserve Fund Life Association v.
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Laughlin, J.:
This is a suit in equity to have a final order in summary proceeds ings declared null and void and to enjoin its use, particularly as evidence of the existence of the relationship of landlord and tenant between defendant and plaintiff. It appears that on the 4th day of April, 1906, the defendant presented a duly verified petition to a justice of the peace of the town of Huntington, county of Suffolk, N. Y., alleging that he was the “ lessor ” of certain real property therein described situate in said town ; that he “leased” it to the plaintiff on the 15th day of February, 1905, for one year from the first day of April thereafter at a stated rental, payable semi-annually on the first days of April and October; that the plaintiff entered into possession of the premises but has not paid the rent, payment of which was personally demanded in said town ; that three days’ notice in writing, requiring in the alternative the payment of the rent or possession of the premises, was duly served on the plaintiff on the twenty-second day of March and service thereof was also made on the 30th day of March, 1906, by attaching it to the door of the building on the premises, pursuant to the provisions of the Code of Civil Procedure, “ there being no person to whom said notice could be served upon or delivered to; ” that the rent had not been paid nor had possession been surrendered, and that plaintiff held over and continued in possession without his permission after such default in the payment of rent and demand, and prayed for a final order to remove him. A precept in due form was issued, returnable on the 30th day of. April, 1906. It was served by affixing it to the front door of the house, the return of the constable showing that he was unable to find the plaintiff or anyone on the premises upon whom it could be served. The plaintiff failed to appear at the time the precept was returnable and a final order and warrant were issued. The defendant thereafter brought an action against the plaintiff in the Supreme Court to recover the rent and for the value of certain improvements alleged to have been made on the demised premises at the request of the plaintiff. The plaintiff had no notice or knowledge of the dispossess proceedings at the time and did not learn thereof until the 17th day of May, 1907. He then brought this action to have the final order annulled and to enjoin the defendant from using it as evidence upon the ground that the summary [584] proceeding was fraudulently instituted and conducted in that the averments in the complaint that plaintiff rented the premises and entered into possession thereof were false and that defendant pretended ignorance of the whereabouts of the plaintiff, who resided in the county of Mew York and had a place of business in the city of Mew York, and caused substituted service of the precept to be made.
The plaintiff' concedes that he had an understanding with. the defendant with respect to renting the premises after certain repairs should be made thereto, and that pursuant thereto and with the expectation of consummating a lease, he forwarded certain carriages to the premises, which were delivered into the custody of the defendant. ' ‘
Courts of equity possess jurisdiction to cancel judgments, orders or decrees, or to enjoin their enforcement in whole or hi part for fraud, but this jurisdiction will only be exercised in cases of necessity and where there is no adequate remedy at law. (Huggins v. King, 3 Barb. 616 ; Farrington v. Bullard, 40 id. 513 ; Dobson v. Pearce, 12 N. Y. 156 ; Richardson v. Trimble, 38 Hun, 409 ; Hinckley v. Miles, 15 id. 170 ; Tracy v. Shannon, 16 Civ. Proc. Rep. 448 ; Patterson v. Naehr, Id. 449.) Equity may entertain jurisdictioh to enjoin the introduction, in an action at law, of evidence obtained by fraud and duress. (22 Cyc. 811; Wells v. Bridgeport Hydraulic Co., 30 Conn. 316 ; Callender v. Callender, 53 How. Pr. 364.)
In the case at bar the plaintiff claims that he was not a tenant and was never in possession, and, therefore, the only possible prejudice that may befall him 'in consequence of the summary proceeding is the use of the final order as evidence of the relationship of landlord and tenant, and, therefore, probable prejudice on this theory is the only basis for equitable relief. If the final order be not open to collateral attack, there can be no doubt it would be conclusive on that question. (Reich v. Cochran, 151 N. Y. 122.) If the petition gave the justice jurisdiction and the service was in conformity to the requirements of the Code" of Civil Procedure (§ 2240), although the final order was granted on substituted service and by default, it would be as binding and conclusive as if the plaintiff had. appeared. (Mutual Reserve Fund Life Association v.
[585] Cordero, 33 Misc. Rep. 387 ; McCotter v. Flinn, 30 id. 119 ; Brown v. Mayor, 66 N. Y. 385 ; Jarvis v. Driggs, 69 id. 143 ; Reich v. Cochran, Nos. 1 & 2, 105 App. Div. 542.) It is unnecessary, however, to decide whether the grounds upon which the summary proceedings are attacked go to the jurisdiction of the court or constitute fraud, or whether they are of such a nature that the plaintiff, without bringing this action, could challenge the validity of the final order collaterally when presented as evidence against him in the action for rent — for it appears from the petition in the summary proceedings, a copy of which is set forth in.the record, that the justice never acquired jurisdiction,. and that, therefore, the. final order is a nullity. Being a court of inferior jurisdiction, every jurisdictional fact essential to support the order must be shown by the record, and may neither be supplied nor presumed to exist. (Black Judg. [2d ed.] §§ 250, 278, 280.) Section 2235 of the Code of Civil Procedure provides, among other things, that the application for the removal of a person in possession of real property may be made by the landlord or lessor, and that the petition must describe “ the premises of which the possession is claimed and the interest therein of the petitioner or the person whom he represents.” The only averment in the petition of the petitioner’s interest is that he is the “ lessor ” and that he “ leased ” the premises to the .plaintiff. This does not constitute a description of the petitioner’s interest in the premises as required by the Code of Civil Procedure already quoted, and it was insufficient to give the court jurisdiction and renders all proceedings taken null and void. (Schneider v. Leizman, 57 Hun, 561 ; 11 N. Y. Supp. 434; Fuchs v. Cohn, 22 Civ. Proc. Rep. 269 ; Cahill v. Weyand, Id. 271; Potter v. N. Y. Baptist Mission Society, 23 Misc. Rep. 671; Ferber v. Apfel, 113 App. Div. 720.) Moreover, service of the precept was made by the constable under the 3d subdivision of section 2240 of the Code of Civil Procedure by affixing a copy of the precept upon a conspicuous part of the property, which is only authorized where service cannot be made as prescribed in either of the preceding subdivisions of the section, and the return does not show that service could not have been made as prescribed in, subdivision 1 or 2 of the section. ' The return does not show that the constable was unable to find the plaintiff in the county, or that [586] plaintiff had no residence in the county. Subdivision 1 of said section 2240 provides for personal service, which may only be made in the county. (Beach v. Bainbridge, 7 Hun, 81.) Subdivision 2 provides that 'if the person to whom the precept is directed resides in the city or town in which the property is situated, but is absent from his dwelling house, service may be made by delivering a copy of the precept at his dwelling house to a person of suitable age and discretion residing there, and in the event that no such person can, with reasonable diligence, be found there, then by delivering a copy of the precept at the property sought to be recovered, either to some person, of suitable age and discretion residing there, or in the event no such person can be found there,. to any person of suitable age and discretion employed.there.- The only statement in the return explaining why service was made by affixing a copy to the door of the building on the premises is the following clause: “ Being unable to find John Matthews or any one on the property.” The justice did not acquire jurisdiction by the. service made, in the absence of evidence that service could not be made as prescribed in subdivisions 1 and 2 of said section. (Beach v. Bainbridge, supra ; Eckerson v. Ellis, 30 Misc. Rep. 794; 63 N. Y. Supp. 150.) Advantage-may be taken of these jurisdictional defects when the final order is offered in evidence and, therefore, the plaintiff in no event requires relief in equity.
It follows that the order should be affirmed, with ten dollars costs and disbursements.
Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.