Russell v. Ostrander

30 How. Pr. 93

• Court: New York County Courts
• Decided: June 15, 1865
• Status: Published

Opinion

A. Schoonmaker, Jr., Co. J.

The sole question in this case is, whether a summons in summary proceedings against a tenant for holding- oiler after the expiration of his term-, can be made returnable on any day from the first to the fifth, as may “ appear reasonable ” to the magistrate. It is conceded, and the statute is sufficiently clear in that respect, that the summons may be properly returnable on the same day, and also on any day not less than three nor more than five days. But whether it can be on the first and second days, is a question not free from difficulty. The Revised Statutes originally provided that the summons in summary proceedings should require the defendant “ to show cause before the said magistrate on the same day, or within such time as shall appear reasonable, not less than three nor more than five days, why possession,” &o. The words “ not less than three,” were not in the section as reported by the revisers, but were inserted by the legislature. As reported by the revisers, it is quite clear that the summons could have been made returnable on any day from one to five, but as amended by the legislature, it is equally clear that there were two distinct periods of service and of return of the summons, without reference to the ground on which it might be issued. There is a manifest incongruity in this section, as adopted by the legislature and embodied in the Revised Statutes, but it was suffered to remain in that form until 1851, when it was amended so as to read as follows : “ To show cause before the said magistrate, within such time as shall appear reasonable, not less than three nor more than five days, why possession,” &c., “ provided, however, that in the cases where a person continues in possession of the demised premises after the expiration of his term without permission of his landlord, the magistrate may direct such summons to be made returnable on the same day ” (3 R. S. 5th ed. p. 837, §30). Since 1851, no change has been made. The alteration of 1851 clearly makes a three days’ summons necessary in all cases under this statute, except the single case where the tenant holds over after the expiration of his term. Does this mean that it “ must be” returnable on the same day and no other ? No one, perhaps, will urge such a construction. It would limit and contract the remedy afforded by the statute, in the very case in which the legislature evidently intended to give it more scope, and make it more summary. But was it intended by this amendment to leave the section in cases like the present one substantially as it was before, with two kinds of summons, while explicitly providing for the longer summons only in the other cases ? Or was it meant to restore the section in cases of holding over, as it stood before it was confused by the legislature ?

It must be assumed that some change was intended to be made, or the amendment could have had no occasion or object. The change in respect to the longer summons is entirely apparent. In cases like this there is no change at all, unless a return of the summons on any day from the first to the fifth is authorized. Unless this change was effected the amendment accomplished nothing, and the evil remained. A statute should beheld to have accomplished what the legislature had in view, when the language will warrant an interpretation favorable to the apparent object. So if a statute will admit of two constructions, and the one involves an inconsistency, or would have the effect to complicate and embarrass proceedings under it, while the other is free from such objections, such other construction should clearly be adopted.

Under these principles, it would follow that this statute should be construed as it was by the justice in this case. And this view renders the statute complete and harmonious. For if a magistrate can exercise his discretion in making a summons returnable on the same day, or on the third, fourth and fifth days, no reason can be perceived why the first and second days should be excluded. It is also a general rule where two periods are fixed within which an act may be done, that it may be done on any intervening day, unless some day be expressly excluded. Mere construction should not exclude, where it is not clear that the legislature intended to exclude.

In this statute the longest limit of the summons is five days, and the shortest on the same day. Had the language of the section been, “ provided, however, that when the tenant holds over after the expiration of his term, the summons may be returnable not less than one day,” it would be plain enough that the three days’ requirement was removed in such cases, and any of the intermediate days would be proper as return days. The practical reading-then would be, “ not less than one nor more than five days!” But the act goes further, and declares that the summons may be made returnable on the same day. I am satisfied that the effect of this proviso is to remove the three days’ limitation entirely in cases where the tenant holds over, and that the legislative intent was that in those cases the summons might be returnable on the same day, or within such time as might appear reasonable, not more than five days. That this construction is warranted by the language employed, is probable, in view of the changes made in the section, and renders it consistent and reasonable. It also relieves it from the eccentricity of authorizing two kinds of summons for the same cases, with an arbitrary hiatus of two days, liable to embarrass magistrates, and complicating proceedings that should be simple and certain.

I hold, therefore, that the summons in this proceeding was made properly returnable, and the judgment of the justice must be affirmed.