McDonald v. Hutter

130 Misc. 631, 225 N.Y.S. 185, 1927 N.Y. Misc. LEXIS 1189

• Court: New York County Courts
• Decided: October 28, 1927
• Status: Published

Opinion

Harcotjrt, J.

I have examined the propositions involved in. the appeal in the above-entitled matter. Notwithstanding the decision of Brambir v. Seifert (127 Misc. 603), I affirm the judgment of the court below upon the opinion rendered in that court.

The following is the opinion of the court below:

Tucker, City Judge.

The 1924 amendment of section 1425 of the Civil Practice Act provides: “ If the precept contain a notice that demand is made in the petition for a judgment for rent in arrears, and the precept is served at least five days before the return day thereof, the Court, upon rendering a final order, may determine the amount of rent due to the petitioner and give judgment for the amount found to be due.” (Laws of .1924, chap. 514.) This amendment is framed in language so plain that an attempt to construe it is superfluous. The function of the courts is to enforce statutes, not to usurp the power of legislation; and, if the legislative intent is clear, no attempt at construction will be made. The courts will carry out the obvious intention of the law-making body, subject only to its power to strike down an enactment which conflicts with the State or Federal Constitution. (1 McKinney's Consol. Laws of N. Y. § 55.)

The statutory provisions for substituted service are based on common-law principles; they are effective in personam, and are not a violation of the constitutional requirement of due process. (Continental Nat. Bank v. Thurber, 74 Hun, 632; affd., sub nom. Continental Nat. Bank v. United States Book Co., 143 N. Y. 648; Hodgens v. Columbia Trust Co., 103 Misc. 415, 421.)

The purpose of this amendment is obvious. Before its passage the landlord would have had to bring a separate action to enforce payment of the rent. This action could be started by substituted service of the summons. The amendment provides for judgment for rent in arrears in the summary proceedings “ If the precept contain a notice that demand is made in the petition for a judgment for rent in arrears, and the precept is served at least five days before the return day thereof.” Section 1421 of the Civil Practice Act provides for substituted service of a precept. That is a well-established practice. The amendment does not limit the provision as to judgment to proceedings started by personal service of the precept. The amendment is practical and reasonable. It is no more drastic than are the provisions relating to attachment and replevin. Motion denied.