McKey v. Lockner

Spring, J.: The counsel for the appellants bases his contention that the justice erred in changing the summons upon section 2883 of the Code of Civil Procedure. That section was evidently designed to keep alive a plaintiff’s cause of action as against the operation of the Statute of Limitations. The constable is to make a return, and, if the summons has not been served, a second one may be issued by the same justice within twenty days after the issuance of the first, and still a. third one for like cause, and they relate back and have the same effect as if seasonable service of .the first summons had been made. No return was made by the constable, and the justice evidently was not seeking to keep the original action alive. The summons had not been served, and, as the return day had passed, it possessed ho vitality, unless plaintiff desired to keep alive the original action, to preserve her rights from the running of the Statute of Limitations. The justice, however, had a right, to treat the original summons as a nullity and issue-another; and this he did. Instead of writing out another, he took the original, and the copies handed in by the constable, altered their dates, and delivered them to the constable for [45] service. The justice did this himself; he was the author of the new summons. The fact he erased one date and substituted another did not vitiate the mandate. If he had a summons for each day of the month, signed and dated, he could fill out one and it would be valid, or he could change the date in any of them without impairing its life. The alteration was made while they were in his custody, and he alone imparted vitality to them. The counsel contends, as plaintiff was a non-resident, the summons must be made returnable at Niagara Falls, where David Lockner resided. The other defendant, John Lockner, resided in Lockport, where the. summons was returnable. The general provision in section 2869, Code of Civil Procedure, is that the action must be brought before a justice of the town or city where one of the parties resides, or an adjoining town or city in the same county. It is provided by subdivision 2 of this section that, if the plaintiff is not a resident of the county, the action must be brought in the town where the defendant resides, or in an adjoining town. In this case the defendants resided in different cities, not adjoining; and the general provision is applicable, permitting the plaintiff to cast his action in the town where one of the defendants resides. The general provision authorizing actions to be commenced in the town or .city where any party resides is applicable in all cases, except those specifically enumerated in the succeeding subdivisions of that section ; and, as practical, effect cannot be given to subdivision 2, in a case where two defendants reside in different localities in the same county, the general rule must apply. The defendants appeared and asked for the dismissal of the proceedings on two specific grounds, which did not include the one now urged. They then appeared generally; so they are effectually foreclosed from raising this objection further. The counsel for the appellants elaborately attempts to find some vice in the alleged failure of the attorneys for the plaintiff to show they possessed authority to act as her agent. The affidavit of Frank A. Ransom, verifying the complaint, shows his authority, and it is recited in the lease which defendants signed. The defendants went into possession under this instrument, which the attorneys executed on. behalf of the plaintiff, and it is far-fetched for the defendants now to impugn this authority when the day of payment has arrived. [46] The jurisdiction of the justice was co-extensive with the limits of the county. (Gould v. Mahaney, 39 App. Div. 426.) The facts upon which the application was made to the county judge for an amended return are contained in the affidavit of the attorney for the appellants. The application was very properly refused by the county judge; it was evidently on the ground the matters sought to be returned by the justice were unimportant. In the consideration of this case, however, we have assumed the facts as set forth in the said affidavit to be correct. The defenses urged are technical and without merit. The judgment is affirmed, with costs to the respondent. All concurred. Judgment and order affirmed, with costs.