People ex rel. Hughes v. Lamb

Talcott, J.: This is a certiorari, the return to which brings up summary proceedings before a justice of the peace in Syracuse, under the “ landlord and tenant act.” Under the twenty-third rule of the Supreme Court this should be heard at the Special Term in the first instance, but we have looked into the case and do not see that any of the objections of the relator to the proceedings before the magistrate are tenable. The affidavit of the landlord is in precise accordance with the form for that purpose prescribed in Waitis Practice (5 Wait’s Prac., 427), with the addition of the words, probably unnecessary, that she, the landlord, is the rightful owner of the premises and entitled to the possession thereof, and we think sufficiently shows that the conventional relation of landlord and tenant exists between the parties, and the averment that the amount specified is due for the rent of the premises, in pursuance of the agreement by which the premises were “ let,” in connection with the statement, that the defendant holds over and continues in possession thereof, is, we think, substantially equivalent to the statement that the amount is due, piu-suant to the agreement under which the premises are “held” as required by the statute.' We think due proof of the service of the summons was made by the certified return of the constable. That showed a service upon the defendant personally, by showing the original and delivering a copy. The case of Robinson v. McManus (4 Lans., 380) is only to the effect that the justice was not confined to the return as evidence of [350] tbe service, but where that did not show all the particulars of a due service, might examine the constable orally. The officer is required to make return in such a case (2 R. S. [m. p.], 440, § 77), and such return if it shows a good service, is “ due proof.” The fact that the justice received evidence of the circumstances which authorized the issuing of the warrant, although there was no appearance on behalf of the tenant, though perhaps unnecessary, had no tendency to injure the relator, and does not constitute a proper subject of complaint by him. The cert/iora/ri must be dismissed, and the proceedings affirmed with costs to the defendant. Present — Mullin, P. J., Talcott and Smith, JJ. CerUora/ri dismissed and the proceedings affirmed, with costs to the defendant.