Ludwig v. Lazarus — 41 N.Y.S. 773

Majority

p. 773

(10 App. Div. 02.)'

LUDWIG et al. v. LAZARUS et al.

(Supremo Court, Appellate Division, First Department.

November 13, 1896.)

Headnote

1. Injunction—Restraining Dispossessory Proceedings.

Injunction will not lie against enforcement of judgment in dispossessory proceedings pending an appeal therefrom, since the statute regulating such proceedings prescribes a method for obtaining a stay pending appeal.

2. Summary Proceedings—Process—Service on Partners.

The precept in summary proceedings to dispossess a firm need not be served on each member of the firm, but a service on one of them is sufficient.

Appeal from special term, New York county.

Action by Bernhard J. Ludwig and others against Sarah Lazarus and others to restrain defendants from interfering with plaintiff’s possession of premises No. 36 West Fourteenth street in the city of New York. An injunction was granted, and defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.

N. S. Spencer, for appellants.

W. Strauss, for respondents.

This action seems to have been instituted for the purpose of procuring a stay pending the appeal from a judgment entered in dispossess proceedings against the plaintiffs. There is no ground for the maintenance of such an action. The law has provided for the procedure in cases of this description, and courts of equity cannot be appealed to to secure stays of proceedings which the statute prohibits. It is sought to maintain this suit, however, upon the ground that the district court which entertained the dispossess proceedings had no jurisdiction, because it did not appear from the record that the plaintiff Isidor Ludwig was served with the precept in the manner prescribed by the Code. It appears from the papers that Bernhard J. Ludwig, the plaintiff, was the lessee of the premises in question, and that they were occupied by Ludwig Bros, as undertenants, said firm being composed of Bernhard and Isidor Ludivig. It further appears, from the papers as presented upon the part of the defendants, that Isidor Ludwig is a person of unsound mind, and absent from the city. There is no dispute but that Bernhard was duly served with the precept, and Ave are not aware of any rule in proceedings of this nature, where the premises are in the possession of a firm, Avhicli requires that each member of the firm shall be served with the precept in order to authorize the district court to entertain the proceeding and to issue its Avarrant for the dispossession of the firm. Bernhard J. Ludwig, a member of the firm, being duly served, the magistrate had jurisdiction to ente 11

p. 774

proceeding and to issue the final warrant. The lessee and the undertenants were served. Hence the proceeding was regular.

We are therefore of the opinion that the injunction should not have been granted, and that the order appealed from should be reversed, with $10 costs and disbursements, and the motion for an injunction pendente lite denied, with $10 costs. All concur.