Schneider v. Leitzman — 33 N.Y. St. Rep. 351

Majority

p. 351

Mary Schneider, Resp’t, v. Edward Leitzman et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1890.)

Headnote

1. Summary proceedings—Petition—Code Civ. Pro., § 2235.

" To authorize the issuing of a precept under § 2235 of the Code the petition must contain a description of the particular title, estate or interest under which the petitioner claims. A petition stating that petitioner was “ in the peaceable possession and occupancy of the premises, and lawfully entitled to remain and continue in possession thereof,” is not sufficient to. confer jurisdiction.

2. Same—Injunction.

Such proceedings may he restrained by injunction when void for want of jurisdiction.

Appeal from an order of the special term (Monroe, May, 1890), denying the defendants’ motion to vacate an injunction.

J. Sullivan, for app’lts; P. McIntyre, for resp’t.

The action was in equity to restrain the defendants from enforcing a warrant issued by a justice of the peace in the town of Irondequoit, in Monroe county, to dispossess the plaintiff of premises situate in that town in summary proceedings for forcible entry and detainer. The complaint alleged, among other things, in effect, that the warrant was void for want of jurisdiction in the justice to issue the precept by which the proceeding was commenced; and the want of jurisdiction was predicated upon the failure of the petition, presented to the magistrate, to comply with the requirements of the statute by which the proceeding is given.

The statute referred to is § 2235 of the Code of Civil Procedure. It prescribes, among other requisites of the petition, that it shall contain a description of the premises of which possession is claimed and of-“ the interest therein of the petitioner or the person whom he represents.” _ The petition in this case contains no description of any interest claimed in the premises described. In that respect it alleges only that the petitioner was on the day of the forcible entry complained of “ in the peaceable possession and occupancy” of such premises, “ and lawfully entitled to remain and continue in possession thereof.” This is manifestly not in compliance with the statute. It was not a description of the interest of the petitioner in the premises, but at most an allegation by inference that the petitioner had some interest therein which entitled him to the possession. The statute plainly requires a description of the particular title, estate or interest under which the petitioner claims.

p. 352

It is an elementary rule that in every purely statutory proceeding the statute must be strictly pursued in order to give jurisdiction to the court or officer called upon to apply its provisions. The magistrate to whom the petition in question was presented was, therefore, without jurisdiction to issue the original process in the proceeding sought to be commenced before him. On the return,of that process the defendant therein, plaintiff in this action, made the objection to the jurisdiction here considered, but it was overruled, and the magistrate proceeded to issue the final warrant for her removal from the premises. She thereupon took an appeal to the county court from the supposed judgment or final order of the justice upon which the warrant should have been based, but the proofs before the special term, upon which the motion to vacate the injunction was denied, tend to show,.and the court was justified in finding, that at the time the appeal was taken no judgment or final order in the proceeding had been made or entered by the justice. That appeal was, therefore, a nullity, and the only remedy of the defendant in the proceeding against the void warrant was by an injunction to restrain its enforcement.

There has been much discussion by the courts of the question in what cases an injunction will lie to restrain this particular proceeding, especially under the apparent restrictions imposed by § 2265 of the Code of Civil Procedure; but all the cases agree that that statute does not affect the power of the courts to restrain those proceedings when void for want of jurisdiction. Chadwick v. Spargur, 1 Civ. Pro. Rep., 422, and note; 7 id., 311; Bokee v. Hamersley, 16 How. Pr., 461 .

We can have no doubt that this action was well brought, and that the motion to dissolve the injunction herein was properly denied.

The order appealed from should be affirmed.

Coelett, J., concurs; Macombeb, J., not sitting.

Order appealed from affirmed, with ten dollars costs and disbursements.