Reed v. Warth

2 Hilt. 281

• Court: New York Court of Common Pleas
• Decided: February 15, 1859
• Status: Published

Opinion

By the Court, Hilton, J.

This action was commenced by summons returnable before Justice William H. Yan Cott, of the fourth district, at his court room, No. 73 First avenue, and was tried before the justice of the first district at his court room, No. 82 Nassau street, who rendered a judgment for the plaintiff, and from which the defendant appeals.

The return of the justice of the first district states that on the return of the summons the parties appeared by counsel, an an■swer was put in, and, after several adjournments by consent, “the cause was further adjourned, until the 10th day of May, 1858, at one o’clock in the afternoon, to be tried at the office of Justice Yan Cott, No. 78 Nassau street, in the city of New York. On the said tenth day of May, 1858, Justice Yan Cott being absent, the counsel for the plaintiff and defendant consented to try said cause before the undersigned at the court room (No. 82 Nassau street) for the first judicial district.”

Upon the face of the return, therefore, the question is presented, whether the justice of the first district acquired any jurisdiction to try this cause, by reason of the absence of Justice Van Cott from his office, No. 78 Nassau street, at the time in which the trial was adjourned.

The power of any justice in this city to hold the court in another district than the one to which he is elected, is given by section six of the “ Act to reduce the several acts relating to the district courts in the city of New York into one act,” passed April 13, 1857, (1 Laws 1857, p. 707), which provides that “the justice elected in each district must hold the court therein, or if his office be vacant, or if he be absent from the usual place of holding his court, or unable from illness to hold the same, it may be held by a justice elected in another district.”

The power thus given being new, it follows that it must be strictly pursued, and unless the justice who tried the cause, acquired the right to do so under the provisions of this section, his acts were coram non judice and void, (Butler v. Potter, 17 John. 145; Saracool v. Boughton, 5 Wend. 170), and, by the non-attendance of Justice Van Cott at the adjourned day, the action was discontinued. Stoddard v. Holmes, 1 Cowen, 245.

This is not a case commenced by the voluntary appearance of the parties and pleading before the justice, without summons, under section ten of the act of 1857 {supra,) because it appears that the pleadings were had before the justice of the fourth district ; and as the return does not show that justice to have been absent from the usual place- of holding his court on the day to which the case was adjourned, it is very clear that the justice of the first district acquired no jurisdiction whatever to try the action, and his acts were entirely void. Dudley v. Mayhew, 3 Comst. 9.

The office of Justice Van Cott was not the usual place of homing his court—the place appointed for that purpose being hie court room in First avenue,—and although it is not necessary, after having arrived at the conclusion above stated, to determine whether a justice can in any case proceed with the trial of a cause commenced before him at a place outside of the district for which he is elected ; yet I entertain great doubt whether he can do so without thereby rendering his subsequent proceedings in the action void. See act of 1857 (supra,) §§ 1, 4, 7, 6; Burckle v. Ekhart, 3 Comst. 132; Coke Lit. 125, a, b.

A remaining ground of appeal is, that the judgment rendered is against the clear and decided weight of the evidence, and were I not satisfied that the justice who tried the case acquired no jurisdiction over it, I would favor the reversal of the judgment on this ground alone.

Judgment reversed.