#### Meyer L. Sire, Respondent, *against*James Merrick, Appellant.

(Decided July 22d, 1889.)

As the rule that the failure of a justice of a district court in the City of New York to deliver his decision to the clerk, within eight days after submission of the cause, is fatal to the jurisdiction of the court over the case, applies to a final order in summary proceedings for the recovery of demised premises, as well as to any other judgment of .such court, testimony is admissible, where such final order is offered in evidence, that the decision of the justice in the case was not communicated to the clerk within the time allowed.

Appeal from a final order of the District Court in the City of New York for the First Judicial District in summary proceedings by a landlord for the recovery of possession of the demised premises.

The facts are stated in the opinion.

*I.*Fromme, for appellant.

*J.*Callahan, for respondent.

Per Curiam.

[Present, Van Hoesen and Allen, JJ.] —In *Dalton*v. *Loughlin*(4 Abb. New Cas. 187), we held that, in order to make the judgment of a district court valid, tiie decision of the justice must be communicated to the clerk of the court within eight days, and that the failure of the justice to deliver his decision to the clerk within that period was not a mere irregularity that gave ground for an appeal, but was fatal to the jurisdiction of the court over the cause. It has been held that a final order must, like a judgment, be given within eight days after the submission of the case *(People*v. Loomis, 2 Civ. Pro. Rep. 278). An omission by the clerk of a district court to record the judgment or the *347final order will not oust the court of jurisdiction, because the act of the clerk is merely ministerial, and may, therefore, in the absence of words in the statute that indicate an intention on the part of the legislature to prescribe immutable limits as to time, be done at convenience.

As it was essential to the jurisdiction of the court that the case should be decided by Justice Goldfog-le within the time agreed upon, namely, on or before May 25th, and as the validity of the record of Justice Goldfogle’s final order depended upon the time at which the decision was communicated to the clerk of the First District Court, it was error to exclude the testimony that was offered to show that the decision was given to the clerk after the 25th of May, the time at which the right of the justice to decide the matter expired. In the case of *The People*v. *Dando*(20 Abb. New Cas. 248), we held, upon the authority of several cases in the Court of Appeals and in the Supreme Court, that evidence ought to be received for the purpose of showing that a judgment that is offered in evidence is in fact invalid and of no weight as proof because it was rendered by a tribunal that was without jurisdiction (See *Craig*v. *Town of Andes,*93 N. Y. 405; *Ferguson*v. *Crawford,*70 N. Y. 253; *People*v. *Cassels,*5 Hill 164; *Hard*v. *Shipman,*6 Barb. 621-624; *Harrington*v. *People,*Id. 607). In the matter before us there is nothing to show that the decision was communicated to the clerk on the 25th of May, and the evidence offered would not have contradicted the record. But the non-existence of a fact essential to the existence of jurisdiction may be proved, even if the record be thereby contradicted.

The final order should be reversed.

Order reversed.