Rathburn v. Weber. of Civil Procedure (see Martin v. Gould, a case similar to this, opinion of ROBINSON, J., filed March 3, 1874, not reported).* Motion denied, with $10 costs to abide the event. IN RE RATHBURN, LANDLORD, RESPONDENT, v. WEBER, TENANT, APPELLANT. SUPERIOR COURT OF BUFFALO, GENERAL TERM, JULY, 1887. SS 2240, 2241, 2243. Summary proceedings-When affiadvit of service of precept, etc., insuffi cient. An affidavit of the service of a precept in summary proceedings to recover the possession of real property is insufficient where service is not personally made, if it merely avers service of the precept, without stating whether a copy of section 2241 of the Code of Civil Procedure was indorsed upon it at the time of such service, and a judgment entered upon such proof, must, on appeal, be reversed. To render a judgment in summary proceedings effectual, all the steps must be carefully taken and all the commands of the statute literally obeyed. Where a precept in summary proceedings is served other than personally it has no effect unless a copy of section 2241 of the Code of Civil Procedure is indorsed upon it, and no person is bound to obey its mandate notwithstanding it contains all the essentials of a valid precept. (Decided July 19, 1887.) Appeal from judgment of the municipal court of the city of Buffalo dispossessing the appellant from demised premises for non-payment of rent. The opinion states the facts. John C. Hubbell, for tenant, appellant. Tracy C. Becker, for landlord, respondent. *See opinion referred to reported ante, p. 45 Rathburn v. Weber. HATCH, J.—This is an appeal from a judgment of the municipal court of the city of Buffalo, dispossessing a tenant of demised premises for non-payment of rent. The question presented upon this appeal, has been before decided, by this court (Miller v. Schmidt, not reported). Counsel for respondent strenuously insists that the decision is wrong, and in consequence thereof a re-examination of this question has been had. Such examination leads me to the conclusion that the former decision must be upheld, and the judgment appealed from reversed. The question arises upon the sufficiency of the affidavit of service of the copy precept required to be served. The affidavit in question is as follows: ERIE COUNTY, CITY OF BUFFALO, ss.: "Maria Rathburn being duly sworn says, That on the 18th day of January, 1887, she served the annexed precept upon John Weber, by delivering a copy thereof at his dwelling-house in the city of Buffalo, where the premises described in said precept are situated, to his wife, Mrs. Weber, a person of about thirty-nine years of age, who resided there, and that, at the time of said service, the said John Weber was absent from his said residence. MARIA RATHBURN.” Sworn before me this 20th day of January, 1887. O. W. VOLGER, Notary Public. This affidavit appears attached to the precept, upon which is indorsed, among other things, a copy of section 2241, Code of Civil Procedure. It is noticed that, as far as mere statements go, the affidavit is limited; the affiant says she has served the precept, nothing more. It, therefore, becomes necessary to inquire what the paper is which the affiant states was served. Section 2238 Code of Civil Proceedure provides for a precept and its contents so far as applicable to this case. It must be as Rathburn v. Weber. follows: The judge or justice, to whom a petition is presented, . . must thereupon issue a precept, directed to the person or persons designated in the petition as being in the possession of the property, and requiring him or them forthwith to remove from the property, describing it, or to show cause, before him, at a time and place specified in the precept, why possession of the property should not be delivered to the petitioners. The precept must be returnable, not less than three, nor more than five days after it is issued." Other than this there is no statute which adds to or takes from the contents of a precept issued under this act, either by way of indorsements or otherwise. Having issued the precept, the next step is its service. How shall it be served? Section 2240 Code Civil Procedure, makes answer: First. "By delivering it to the person to whom it is directed." Second. If the person to whom it is "directed resides in the city or town in which the property is situated, but is absent, then service may be made by delivering a copy thereof, at his dwelling-house, to a person of suitable age and discretion, who resides there; or if no such person can, with reasonable diligence be found there, . . . then by delivering a copy of the precept at the property sought to be recovered, either to some person of suitable age and discretion residing there, or, if no person can be found there, to any person of suitable age and discretion employed there." Third. If service cannot be made as above prescribed, then it may be made "by affixing a copy of the precept upon a conspicuous part of the property." The service made in the case under consideration, if made at all, falls under the second subdivision. When the service is made otherwise than personally, certain other obligations are imposed, which are provided for in section 2241 Code: First. Upon the person to whom the precept is deliv Rathburn v. Weber. ered, who must without any avoidable delay, deliver it to the person to whom it is directed, if he can be found in the same town or city; or if he cannot be found therein then to his agents, and if neither can be found after the exercise of reasonable diligence, then before the time when the precept is returnable, the person must make a written statement, indorsed thereon, that after the exercise of reasonable diligence, he or she is unable to find either the person to whom the precept is directed or his agent, within the town or city. A person who willfully violates these provisions is guilty of a misdemeanor, and if the person receiving the precept is a tenant, he not only becomes guilty of a misdemeanor, but forfeits to his landlord the value of three years' rent of the premises occupied by him. Second. Of the person who makes service of the precept the following is required: A copy of this section must be indorsed upon each copy of a precept, served otherwise than personally upon the person to whom it is directed." This statute in its nature is not only highly penal, but a willful violation subjects the person to indictment and criminal punishment. Under such circumstances it is hardly necessary to call attention to those authorities which hold that these statutes must be strictly construed and every act required to be done must be literally performed, for under this statute such rule is suggested without authority. It is at once apparent why the section of the Code is required to be indorsed upon the copy served (not the precept). It was evidently intended to bring sharply to his attention the duties which the law then imposed upon him, and thus put him in active motion, and to accelerate his movements, hold up before his view liability to punishment by imprisonment. A home is liable to be broken up, valuable property rights may be snmmarily destroyed, hence the necessity for an active, dilligent effort. All of the steps must be carefully taken, the commands of the statute literally obeyed. Suppose Rathburn v. Weber. no notice is indorsed upon the copy precept served, and the person upon whom it was served does nothing to call the attention of the person to whom it is directed to it, although he well knew where he was. Would he be liable for the penalties imposed by this statute? Could he be tried and punished by indictment? Clearly not. His being bound to know the law would not apply, for the law says in this manner you shall call my attention to it, and, until you obey the law, you impose no duty upon me! Without the notice, the copy served is no more than waste paper when served in this manner, and no person is bound to obey its mandate, notwithstanding it contains all the essentials of a valid precept. The evident policy of the law is to secure notice to be given the tenant of the proceeding, and the presumption arises that such precept, with the notice indorsed thereon, has been delivered to the person to whom it is directed, when the perons to whom it was delivered fails to appear and indorse thereon that the tenant or his agent cannot be found; and this fact, coupled with a proper affidavit of service of the precept, when personally served, and with an affidavit of the proper service of a copy of the precept, with the section of the Code indorsed thereon, confers jurisdiction upon the magistrate to proceed to judgment. Nothing short of this will satisfy the statute. This leads to an inquiry as to the proof required of the service of the precept. It is found in section 2243, Code Civil Procedure: "At the time when the precept is returnable, the petitioners must, unless the adverse party appears, make due proof of the service thereof, showing the time and the place and manner of service; and, unless service was made personally upon the adverse party, or by affixing a copy of the precept, the name of the person to whom a copy of the precept was delivered, if his name can be ascertained with reasonable diligence." Due proof of the service requires the service of such paper as the law has provided shall be shown. In this case, the affidavit of service clearly states that affiant served a copy |