People ex rel. Leary v. Lane

2 Thomp. & Cook 522

• Court: New York Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

Donohue, J.

Assuming that the affidavit makes out a case on which the justice might issue his summons, the facts appear to be, that the tenancy expired on the 14th of November. On the 18th of that month, the justice issued a summons returnable on the '19th, and on the return of that summons, showing a service on the 18th, under the objection of the tenant, who appeared only for the purpose of objecting that the summons should have been returnable on the day it was served, or more than one day thereafter, the justice granted his warrant, and the tenant was removed. The tenant brings the case here for review. No argument is filed for the respondent, and we can find no authority for such a summons as that on which the justice acted. The statute gives the right in certain cases to have the summons returnable in less than three days, but when so returnable it must be on the same day. In this case the summons issued cannot be sustained, and the proceedings must fall with it.

Davis, P. J., and Daniels, J., concurred.

Proceedings reversed.