Majority
p. 348MATTER OF WHITE. N. Y. Supreme Court; First District; Special Term, April, 1883.
Headnote
Summary Proceedings.—Answer of Title.—When removal NOT EFFECTED.—INJUNCTION.The provisions of Code Civ. Pro. §§ 2951, 2952, relating to removal of causes from a justice’s court, where an answer is interposed, which raises a question of title to real property—do not apply to summary proceedings for the removal of squatters under section 2232, subd. 4.
Under Code Civ. Pro. § 2265, an injunction cannot be granted upon a summary application to stay the prosecution of proceedings, to
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recover possession of real property, until there has been a final order in the proceedings.
Proceedings upon the return of an order to show-cause why the justice of the seventh district court of the city of New York, should not be compelled to countersign the answer of Annie White, and Bernard White, and approve the bond offered by them in summary proceedings brought against them by Joel W. Parker; and for a mandamus, stay of proceedings, &c.
. The proceedings in the district court were brought under section 2231, subd. 4 of the Code of Civil Procedure, for the possession of two lots in sixty-fourth street, the petition alleging that the petitioner was the owner of an undivided one-half interest therein.
The answer contained a general denial and alleged “ that the title of real property will come in question, and the parties proceeded against herein present an undertaking upon answer of title, and request approval.” The justice declined to accept or approve the undertaking and directed a trial to be had, holding that the only issue involved was the petitioner’s right of possession.
The provisions, of the Code of Civil Procedure relied upon by the petitioner’s counsel are not applicable to the “summary proceedings to recover the possession of real property,” which are provided for by title 2 of chapter 17 of the Code, sections 2231 to 2265 inclusive; sections 2951 and 2952 relate to actions in which the question of the title arises. In this summary proceeding the question is not as to title, but as to the right to the possession of the property, and the case here arises under the 4th subdivision of section 2232 relating to squatters. By section 2247, the issues joined by the petition and answer must be tried by the judge or justice, unless a demand is made for a trial by jury. It would be anomalous in the face
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of this provision to issue the injunction which is prayed for in this case. Furthermore, under section 2365, if I have the power to grant an injunction, I cannot exercise it, until there has been a final order. The motion will therefore be denied, with costs.