APPEAL by the plaintiff, Louis Mischner, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 1st day of July, 1910, reversing a judgment of the City Court of the city of New York in favor of the plaintiff entered upon the verdict of a jury and directing a new trial in an action for damages for trespass.
M. Spencer Bevins of counsel [Abraham P. Wilkes with him on the brief], Henry Kuntz, attorney, for the appellant.
Alfred B. Jaworower, for the respondent.
The defendant was the lessee of a loft and sub-leased one-half thereof to the plaintiff, a furrier. The plaintiff alleges
that the lease was for a year. The defendant alleges that it was from month to month.
On the 7th day of May, 1903, the defendant served a notice that he elected to terminate the plaintiff's tenancy on the first of June. On the first of June the defendant filed a petition in the Municipal Court of the third district, asking for a precept in dispossess proceedings. A precept was issued at twelveten, returnable at three o'clock on said day. An affidavit was made by one Kuegler on the first of June, 'that he did on the 1st day of June, 1903, at 12 o'clock and 55 minutes in the afternoon, serve the within precept on 'John' Mischner, fictitious, etc., the tenant therein named, by affixing a true copy thereof upon a conspicuous part, to wit, the entrance door of the demised premises in the within affidavit and summons described, that at the time of said service 'John' Mischner, fictitious, etc., the said tenant, was absent from his last or usual place of residence and which was demised premises, and could not be found after due and diligent search, that he could not find any person at such place residing on the premises; that he could not find the said tenant upon the said demised premises, and further, that he could not find upon the said demised premises any person of mature age residing thereon or connected therewith by employment in any business for which the said premises are used, on whom he could serve the same.' On the said June first judgment by default was entered for the possession and on the third of June the defendant accompanied the marshal with several men, who piled the plaintiff's goods and chattels on the sidewalk.
The complaint is voluminous, but contains all the necessary averments in an action for trespass. After considerable discussion upon the trial, and after a demand that plaintiff elect upon what theory his case should proceed, he elected to proceed upon trespass, and, therefore, the case was so tried. The plaintiff rested, having proved the trespass, and the defendant moved to dismiss, whereupon an extended colloquy ensued, questions of amendment of the complaint, withdrawal of a juror, etc., were considered and finally the plaintiff's counsel said: 'I will ask your honor to permit me to open this case for the purpose of offering the warrant and these papers in evidence,
which we have here, for the purpose of attacking it collaterally, and then I will rest, thus giving them a chance to prove the legality of that warrant. Then we will bring the issue fairly in point, that this warrant was improperly obtained. * * * The court: I will allow the plaintiff to attack this warrant collaterally in this action.'
Thereupon the case was reopened, the plaintiff offered the petition, precept and warrant in evidence 'for the purpose of attacking the warrant, as alleged in our complaint, by this plaintiff, and for no other purpose, that no service has been made of this precept. Defendant's counsel: I have no objection to the precept, petition and warrant going in evidence. Plantiff's counsel: I said for what purpose. Defendant's counsel: I cannot make any bargain; you either offer it or you don't. You can attack them afterwards. The court: You offer them in evidence? Defendant's counsel: I have no objection.' The plaintiff thereupon gave evidence tending to show that he and two of his employees were in the loft all day long; that the door was open; that no attempt was made to serve the precept upon him or leave the papers with any one or attach them to the door. The question of fact submitted to the jury was whether the precept had been served. The jury resolved that question in favor of the plaintiff and returned a verdict for $500 damages.
The learned Appellate Term in its opinion on reversal said: 'The complaint sets forth an action in trespass to the effect that the defendant, assisted by a marshal of the city of New York, threw plaintiff's stock of goods into the street, after having made a false affidavit that the plaintiff could not be served personally with a precept in dispossess proceedings, and having obtained, after 'substituted service' and default, a warrant to dispossess him. The question on this appeal is whether the plaintiff can attack collaterally the final order and warrant to dispossess, by showing that the affidavit of service was untruthful and fraudulent. If the Municipal Court did not have jurisdiction over the plaintiff, its final order in dispossess proceedings was void; and a void order may be attacked ...