People ex rel. Duchardt v. Kelly , 27 N.Y. Sup. Ct. 549 ( 1880 )

Per Curiam:

No ground of objection to the jurisdiction of the court was pointed out in the court below. The objection in that behalf was altogether too general to call for consideration. The objection to the form of the summons we think was not well taken. The objection was “ on the ground that it did not show that the premises described therein were situated within said sixth judicial district.” To maintain this objection it is necessary to establish that the summons must show in what district the premises are situated.

It is nowhere required by statute that the summons shall contain this fact. It is sufficient that it properly described the premises. The requisites of the summons are prescribed by statute. (3 R. S. [Banks’ 6th ed."], § 30, 825.) And it is enough, so far as the sufficiency of the summons is concerned, that it complies with that requirement.

The form of the objection was itself a virtual concession that the premises were in fact in the sixth judicial district, as it merely insisted that that fact should appear in the summons, and made that the point upon which the justice was to pass. His decision overruling that objection was correct.

The point that the adjournments exceeded ten days is not, we think, well taken. The several adjournments were made with the consent of the relators, and they appeared and tried the. issue without making any objection that the justice had been ousted of jurisdiction by the adjournments. The mere taking of time after the trial for the consideration of the questions by the justice is not in the nature of an adjournmentand especially would this be so where it was clone, at the request of the , parties, to give them opportunity to hand in their briefs. .

The ease was tried upon the assumption on both sides that the premises were in fact in the sixth judicial district.

Although that fact is within our personal knowledge, we cannot take judicial cognizance of it. Yet we feel that parties should be bound strictly to an implied concession when no issue upon the question of locality is made by the relator, and the case has proceeded upon a virtual concession as above indicated. We have examined the other points presented, and think they are without merit.

We think the proceedings should be affirmed, with costs and the writ quashed.

Present — Davis, P. J., Beady, and Baekbtt, JJ.

Proceedings affirmed, with costs, and writ quashed.