McIntyre v. Hernandez — 7 Abb. Pr. 214

Majority

p. 214

McINTYRE against HERNANDEZ.

New York Superior Court; Special Term,

April, 1869.

Headnote

Appeal prom New Yobk Marine Cottbt.—Injunction AGAINST SUMMARY PROCEEDINGS.

An appeal from the judgment of a justice of the marine court, in summary proceedings to dispossess a tenant, cannot be taken to the court of common pleas of New York.

The only mode of reviewing such proceedings is by certiorari out of the supreme court.

Where a tenant, whose defense in such proceedings was excluded by the justice, appealed to the court of common pleas, and perfected the appeal by giving security;—Held,.that he was not entitled to an injunction restraining the justice from issuing his warrant of removal.

Cases mentioned where the court will restrain such proceedings by injunction.

The court will never interfere where the tenant has a legal defense, unless he has been prevented from making it by fraud or surprise.

Motion to continue an injunction pendente lite.

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The defendant Eleonore Hernandez, as the landlord of the plaintiff William N. McIntyre, instituted a pro ceeding before one of the justices of the marine court, to dispossess the plaintiff of certain premises in the city of New York, for non-payment of a quarter’s rent, due February 1, 1869.

The plaintiff appeared before the justice, and, having controverted the allegation of rent due, proved that on or about the tenth day of February he delivered to the landlord a draft, drawn by the plaintiff upon and accepted by one Russell, for the sum of three hundred and fifty dollars, which draft the landlord, by her agent, accepted in full payment and discharge of the quarter’s rent due on the 1st day of February. It was further proved that the draft became due on the 16th of February, but was'not presented for payment.

The justice rendered judgment in favor of the landlord, on the ground, as alleged, that the draft not having been paid, there was a default in the payment of rent.

From the judgment the plaintiff appealed under section 5 of the act of April 3,1849, to the court of common pleas of the city and county of New York, giving security as required by law, and demanded that said justice stay the issuing of the warrant in pursuance of such judgment, until the hearing and decision of the appeal.

The justice having declined to stay the issuing of the warrant, the plaintiff, upon an affidavit of the foregoing facts, obtained from a justice of this court an injunction restraining all proceeding upon the judgment until the further order of the court.

H. S. Bennett, for the plaintiff.

P. McTighe, for the defendant.

If an appeal could be taken from the determination in the proceeding before the justice of the marine court to the court of common pleas, I am inclined to think enough was done by the plaintiff to perfect the appeal, and that such appeal would stay all proceed

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ings before the justice. But it seems to be quite settled that no such appeal can be taken (People v. Willis, 5 Abb. Pr., 205 ; Freeman v. Ogden,^[1] 17 Id., 326 note).

The case of Davis v. Hudson ( 5 Abb. Pr., 61 ) merely decided that proceedings before a justice of a city district court could be removed by appeal; but even that case has since been disapproved (Romaine v. Kinshimer, 2 Hilt., 519).

The only mode of reviewing proceedings of this nature, instituted before any officer other than justices of the peace, is by certiorari out of the supreme court.

It is not necessary to decide whether the justice of the marine court could properly treat the appeal as a nullity, and refuse to regard it as a stay of proceedings ; for, even assuming that the appeal was well taken, I have not found the other facts sufficient to sustain the •injunction.

The cases in which this court will restrain by injunction proceedings of this nature, are those where the tenant has been deprived of an opportunity to make his defense, or where the defense was of an equitable nature, not cognizable by the officer (Deguid v. Hogan, 1 Bosw., 645 ; Seeback v. McDonald, 11 Abb. Pr., 95 ; Griffith v. Brown, 28 How. Pr., 4 ; Marks v. Wilson, 11 Abb. Pr., 87 ; Ward v. Kelsey, 14 Id., 106 ; Roberts v. Matthews, 18 Id., 199 ).

In such cases, a court of equity will sometimes relieve a tenant, and enable him to show by action that he ought not to be deprived of the possession.

But I have never known a case where a plaintiff has a legal defense to the proceedings, and interposes it and is defeated, that the court will interfere. Even when he has failed to interpose his defense an injunction is not allowed, unless in a strong case of fraud or surprise.

For errors committed by the officer, other remedies are provided. In the case of justices of the peace an appeal is allowed ; to other officers, a certiorari lies.

Whether these remedies are adequate in all cases may be questioned ; but they are such as the legislature

* Affirmed in 40 N. Y., 105 .

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has provided, and we can neither alter nor enlarge them.

The motion to continue the temporary injunction must be denied, and the temporary injunction dissolved, with ten dollars costs.