Douglass v. Reilly

DyioíAN, J.: On the 27th day of July, 1875, the plaintiffs were residents of the town of New Lots, in Kings county, and on that day they applied to James H. Spencer, a justice of the peace of that town, for a summons in a civil action against the defendant, who was a resident of the city of Brooklyn.- The summons was issued in the usual form and manner, and was made returnable before the said justice, at the town of New Lots, and was personally served on the defendant in the city of Brooklyn, by a constable of the same town of New Lots; on the 3d day of August, 1875, the return day of the summons, it was returned by the said constable personally served on the defendant. The defendant did not appear, and on proof of the claim the justice rendered judgment against the defendant for twenty-nine dollars and five cents. The justice issued a transcript of the said judgment, which was filed in the office of the county clerk of Kings county on the 27th day of August, 1875, and judgment was docketed thereon, and an execution issued to the sheriff of Kings county. Upon an affidavit setting forth substantially these facts, .a motion was made before the county judge of Kings county to set aside the said transcript, judgment and execution. This motion was granted and the case now comes before us on appeal from that order. „ This order is now claimed to be proper and legal, on the ground that the justice of the peace who issued the summons acquired no jurisdiction over the person of the defendant. This claim is founded upon the provision in the Laws of 1850 (chap. 102, § 16), that “ no justice of the peace other than the police justices elected in the city of Brooklyn shall have or exercise any civil or criminal jurisdiction in said city.” We think this provision of the statute has no applicability to the present case. The justice of the peace in this case has exercised no jurisdiction in the city of Brooklyn. He simply issued a summons in a civil action in the town of New Lots, out of the city, and delivered it to a constable for service, and upon the proper return of personal service proceeded with the case in his own town, and entered judgment in the action. [87] Tbe constable’s return gave the justice jurisdiction of the person of the defendant, and there is no claim that his subsequent proceedings were irregular. Certainly, it cannot be pretended that the constable had no power to serve the summons on the defendant in the city of Brooklyn. The provision of the statute was intended to give exclusive jurisdiction to the police justices and the justices elected in the city of Brooklyn to hold courts in the city of Brooklyn, and not to take away the general jurisdiction of the justices of the peace of the county to try transitory actions within their jurisdiction and hold their courts in their own towns. (Blatchley v. Moser, 15 Wend., 218.) We also think that the county judge had no power to,set aside the transcript and vacate the 'judgment on motion, and that the remedy of the defendant, if he had any, was by appeal. (N. Y. and Erie R. R. Co. v. Purdy, 18 Barb., 574.) The order of the county court should be reversed with costs and disbursements. Present — Barnard, P. J., Gilbert and Dyrmak, JJ. Order of county court reversed with costs and disbursements.