Koster v. Van Schaick. KOSTER AND ANO. v. VAN SCHAICK ET AL. N. Y. COMMON PLEAS, SPECIAL TERM; OCTOBER, 1882. §§ 2233, 2254, 2262, 2265. Forcible entry and detainer. — Proceedings for, conform to summary proceedWhen execution of warrant in, cannot be enjoined by injunc ings. tion, pending appeal.—Injunctions in summary proceedings, upon what allegations dependent. — In what case may be stayed pending appeal. By section 2233 of the Code, proceedings for forcible entry and detainer are made to conform to summary proceedings to recover the possession of real property.['] The language of subd. 2 of section 2265 does not give the court any general power to enjoin the execution of a warrant in summary proceedings, pending appeal; but simply provides that an injunction may be granted in a case where it would be granted to stay the execution of the final judgment in an action of ejectment. This is merely declaratory of an equitable jurisdiction which has long been exercised; but which depends upon the allegations of fraud, or collusion, or the want of jurisdiction.* [3] Where there is no claim that proceedings for forcible entry and detainer were fraudulent, or that the magistrate acted without jurisdiction, the court has no power to grant an injunction restraining the execution of the warrant, pending appeal from the final order under which such warrant was issued, merely on the ground that the magistrate has committed errors in the proceeding which rendered it void,[*] [7] such errors may be reviewed upon appeal. [*] The only express provision made by the Code for staying summary proceedings, pending appeal, is in a case where the lessee or tenant holds over after a default in the payment of rent. There is no provision for a stay upon appeal in the case of a tenant holding over after the expiration of his term, nor in the case of forcible entry and detainer, unless it can be found in subd. 1 of section 2265; [2] [] and query, whether a judge of the marine court before whom summary proceedings for for *See Note on Injunctions in Summary Proceedings, 1 Civ. Pro. R. (1 McCarty), 425. Koster v. Van Schaick. cible entry and detainer are tried has power, pending appeal, to stay the execution of the warrant, by order, upon the giving of an undertaking, or otherwise, under subd. 1 of section 2265.*[*] . Motion by plaintiffs for a temporary injunction to restrain the defendants from executing a warrant in proceedings for forcible entry and detainer, pending an appeal by plaintiffs from the final order under which said warrant was issued, and also to restrain the execution of said warrant during the pendency of this action. One of the defendants, Alida Van Schaick, was the owner of certain premises situate in the city of New York, which were leased to the plaintiffs in this action. In May, 1882, said Alida Van Schaick began summary proceedings to recover possession of the premises in question, on the ground that the said plaintiffs held over and continued in possession after the expiration of their term, and the final order in such proceedings awarded delivery of possession to her, and a warrant was accordingly issued and executed. *The earliest case holding that the provisions of the Code of Civil Procedure, in relation to staying the execution of a warrant in summary proceedings, pending appeal, apply only to a case where the tenant holds over after a default in the payment of rent, is Shaw v. McCarty, reported in full for the first time, post, p. 235. See, to the same effect, Knox v. McDonald (25 Hun, 268, 270); and under the R. S, Sage v. Harpending, 49 Barb. 166, S. C. 34 How. 1. The query suggested in Koster v. Van Schaick, supra, was involved and decided in Van Schaick v. Koster, reported post, p. 239, where it was held, on the reasoning of Shaw v. McCarty, supra, that the execution of the warrant in proceedings for forcible entry and detainer could not be stayed, pending appeal. It may be observed, that while a stay of the warrant can be granted, pending appeal, only where the lessee or tenant holds over after a default in the payment of rent, even this exception is, it seems, denied to a lessee or tenant in the city and county of New York. Section 2262 provides that: "Where an appeal is taken from a final order, awarding delivery of possession to the petitioner, which establishes that a lessee or tenant holds over, after a default in the payment of rent, Koster v. Van Schaick. Thereafter, in June, 1882, the said Alida Van Schaick, on the ground that the said plaintiffs, after the award of possession to her as aforesaid, had made entry upon said premises, began summary proceedings under section 2233 of the Code as for a forcible entry and detainer. The proceeding came on for trial before McADAM, J., and a jury, and the evidence was conflicting upon the question of actual force, but there was an admission of constructive force, and the said Alida Van Schaick recovered a verdict, and the final order awarded her possession, and a warrant was accordingly issued. The plaintiffs appealed from this final order and applied for a stay of proceedings pending appeal, and offered to give an undertaking to stay the execution of the warrant, but MCADAM, J., declined to grant a stay upon the ground that the Code, in such a case, made no provision for a stay of the warrant. The plaintiffs, upon the ground that the said Alida Van Schaick had, by certain acts, waived her right to * * * * the issuing and execution of the warrant may, except in the city and county of New York, be stayed by order of the county judge." Mr. Throop, in a note to section 2262 of his edition of the Code (1881), says: "The remainder of § 52, added to the R. S. by L. 1849, ch. 193 (3 R. S. [5th ed.], 840; 2 Edm., 534). The exception, where the proceedings are taken in New York city, is but declaratory of the existing provision of law, the retention of which is required by circumstances peculiar to that city." * * And in a note to section 2261 of his edition of the Code (1881), M:. Throop says: * * "Under the former statute, it would seem that the decisions of the district courts of New York could be reviewed only by certiorari. The last section will transfer the jurisdiction to review them, as in other cases, to the common pleas, and require them to be reviewed by appeal; and the prohibition of a stay, preserved in this section and in § 2265, post, which is not affected by the next section, will remove the only serious objection to the change." * The foregoing extracts from Mr. Throop's notes would seem to show, that when he said, "The exception, where the proceedings are taken in New York city, is but declaratory of the existing provision of law," he had in view the act of 1849, chap. 193, § 5, adding to article 2, title 10, chap. 8, part 3 of the R. S. three additional sections (see 3 R. S. [5th ed.] * * Koster v. Van Schaick. enforce the warrant in the summary proceedings, and that the verdict in the proceedings for forcible entry and detainer was improper, and that the refusal to stay the execution of the warrant in that proceeding was erroneous and would work irreparable injury, thereupon brought this action for an injunction to restrain the execution of said warrant pending appeal and the determination of this action, and moved for a temporary injunction as above stated. Chas. W. Brooke (L. Ansbacher, attorney), for plaintiffs. A. H. Stoiber (Van Schaick, Gillender & Stoiber attorneys), for defendants. VAN BRUNT, J.-This is an application for an injunction to restrain the execution of a warrant issued in a proceeding for forcible entry and detainer, pending an appeal from the judgment entered in said proceeding. 840, §§ *52, *53, *54), and providing that where the proceedings were taken before a justice of the peace, a stay might be granted on appeal to the county court (3 R. S. [5 ed.], 840, § *52); that while this act gave at least another mode of review elsewhere (People ex rel. Williams v. Bigelow, 11 How. 83; People ex. rel. Van Allen v. Perry, 16 Hun, 461), it did not affect the city and county of New York, where the writ of certiorari still remained under 2 R. S. 516, § 47 (People ex rel. Nevins v. Willis, 5 Abb. 205; Freeman v. Ogden, 17 Abb. 326, note, affirmed 40 N. Y. 105; McIntyre v. Hernandez, 7 Abb., N. S., 214, S. C., 39 How. 121; Romaine v. Kinshimer, 2 Hilt. 519, disapproving Davis v. Hudson, 5 Abb. 63); and that said § 47 contained an express prohibition against a stay pending review by certiorari, People ex rel. Grissler v. Fowler, 55 N. Y. 675; Sherman v. Wright, 49 N. Y. 232; Sage v. Harpending, 49 Barb. 172; Smith v. Moffatt, 1 Id. 68; Duigan v. Hogan, 16 How. 167; People ex rel. Nevins v. Willis, 5 Abb. 208; People ex rel. Williams v. Bigelow, 11 How. 86; Cure v. Crawford, 5 Id. 295; Wordsworth v. Lyon, Id. 464; Launitz v. Dixon, 5 Sandf. 254. In McAdam on Landlord and Tenant (2d. ed.) 666, it is said: "Section 2261 of the Code provides, that the issuing of the warrant cannot be stayed by the appeal, or by the giving of an undertaking thereupon, otherwise than as prescribed in the next section. The next section (2262) contains 'no Koster v. Van Schaick. It is claimed upon the part of the plaintiffs that, under section 2265, this court has authority to issue such an injunction. [1] By section 2233, proceedings in cases of forcible entry and detainer are made to conform to summary proceedings for the possession of real property. An examination of those sections shows that, in many respects, they are but a re-enactment of the provisions of the Revised Statutes. Subdivisions 1, 2 and 3 of section 2254, which provide for the cases in which a party may obtain a stay where a final order is made requiring the delivery of possession of property to the petitioner, are but a re-enactment of sections 44, 45 and 46, pages 515 and 516 of the second volume of the Revised Statutes. Section 47 provides that the supreme court may award a certiorari for the purpose of examining any adjudication made upon any application thereby authorized. Instead of certiorari, the Code provides for an appeal. The section then provides: "But the proceed provision for a stay, except in cases where the judgment is for non-payment of rent, and even in those excepted cases, the provisions in reference to a stay is declared to be inapplicable to the city and county of New York (Code, § 2262), so that in that county there can be no stay of the warrant in any case." We have Mr. Throop's statement that circumstances peculiar to the city of New York, require that tenants in that city should be denied a stay pending appeal, on a state of facts which would secure it in every other county in the State. Except that it previously existed, Mr. Throop omits to state the circumstances which require the city of New York to be invidiously excluded from participating in the relief elsewhere enjoyed. If it were the intent to lessen the rigor of these proceedings, a very slight acquaintance with the practical operation of the law in the city of New York would show that, upon the tenants of no other locality could the right to a stay be conferred with the prospect of mitigating more hardship. In the marine court alone, for the year ending January 31, 1881, there were about six thousand cases of summary proceedings. This number, taken together with those in the district courts, probably exceeds the number brought throughout the entire remainder of the State. |