People ex rel. Pierce v. Covill — 27 N.Y. Sup. Ct. 460

Majority

p. 460

THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES H. PIERCE, Respondents, v. OATMAN COVILL, EDGAR TROMBLY AND OLIVER TROMBLY, Appellants.

Headnote

Certiorari to reoiew summary proceedings for forcible entry and detainer — at what stage of the proceedings it may issue.

A certiorari, to review summary proceeding's for a forcible entry and detainer, may be issued after the defendant has traversed the inquisition, and before the proceedings upon the said traverse have been completed.

Appeal from an order made at Special Term, quashing a writ of certiorari.

On the 11th day of March, 1878, proceedings were commenced under article 1, title 10, chapter 8, part 8 of -the Revised Statutes, before the county judge of Franklin county, by the plaintiff, James H. Pierce, against the defendants, for an alleged forcible entry and detainer, and upon the complaint of Pierce the county judge issued a precept for a jury, returnable at his office at Malone, N. Y., upon Saturday, the 16th day of March, 1878, at which time the parties appeared and such proceedings were had, that an inquisition was found on March sixteenth, by the jury which had been summoned, to the effect that the defendants had forcibly entered the premises described in the complaint, and had forcibly withheld the same from the plaintiff Pierce. This inquisition was the same day, March sixteenth, traversed by the defendants, and the county judge, upon the twentieth day of March, issued a precept for a jury to try such traverse, returnable March 27, 1878. On the 20th day of March the defendants obtained a writ of certiorari, commanding the county judge to certify all proceedings herein to the Supreme Court, -which writ was made returnable at a Special Term appointed to bo held at Schenectady April 16, 1878, and a return was dujy made to this writ by the county judge on the 9th day of April, 1878.

Upon the sixteenth day of April, the return day named in the writ, an order was made, directing that the hearing, upon the return of the writ, should be had at the Special Term to be held

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at Canton, May seventh, but by consent of the parties the hearing was had at' a Special Term held at Plattsburgh, N. Y., upon the 17th day of April, 1878, and an order was then made dismissing the writ on the ground “ that the defendants, having traversed the inquisition, obtained the writ before the proceedings before said county judge upon said travérse had been completed.” From this order the defendants appealed to the General Term of the Supreme Court.

W. P. Gantwell, for the appellants.

Palmer, Weed & Smith, for the respondents.

Ordinary writs of certiorari do not issue until a final determination has been had in the inferior court or tribunal. (People ex rel. Dickinson v. Super’s Livingston, 43 Barb., 232 , affirmed 34 N. Y., 516 , and cases cited.) But this is not strictly true in cases of summary proceedings for forcible entry and detainer. Such proceedings may be removed into the Supreme Court by certiorari at any time after inquisition (2 R. S., 510, §§ 19, 20, 21, 22), but not before inquisition. (Haines v. Backus, 4 Wend., 213 .) The proceedings on such removal are given in the sections above referred to. By section twenty-one, “the Supreme Court, shall proceed therein (after the return is made) and cause the defendant to traverse the inquisition, if no traverse has been had, and shall direct a trial.”

So it appears the traverse may be made before or after the granting of the writ. The object to be attained is the trial of the traverse in the Supreme Court. The practice indicated is sustained by authority. (5 Wait’s Pr., 313; People v. Hickox, 3 Hill, 446 ; Carter v. Newbold, 7 How., 166 .) We conclude, therefore, that the learned judge erred in quashing the writ in this case as prematurely issued.

The respondents urge other defects in the proceedings for which the writ should be quashed. We do not consider these questions properly before us upon this appeal. They should first be heard and passed upon by the Special Term. If there be defects which

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are serious, they may, perhaps, be remedied by means of amendment or additional papers.

The order of the Special Term is reversed, with ten dollars costs and disbursements.

Learned, P. J., and Bockes, J., concurred.

Order quashing writ of certiorari reversed, with ten dollars costs and printing disbursements.