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People ex rel. Browne v. McAdam.

premises were demised had not expired by limitation, and that therefore the justice was wholly without jurisdiction to entertain the proceeding, and that the tenant's direct and immediate remedy was the writ of prohibition.

Ludlow Fowler (Kobbê & Fowler, attorneys), for appellant:

Summary proceedings will not lie for a breach of a condition subsequent, and the only remedy is by an action of ejectment; Beach v. Nixon, 9 N. Y. 35; Oakley v. Schoonmaker, 15 Wend. 226, 229; Linden v. Hepburn, 5 How. 188; Clark v. Jones, 1 Denio, 516.

Prohibition was the tenant's remedy to restrain the proceeding; Quimbo Appo's Case, 20 N. Y. 531, 540; People ex rel. Faile v. Ferris, 76 N. Y. 326, 328, 329.

The case of Miller v. Levi (44 N. Y. 489), does not conflict with Beach v. Nixon, supra. In the former case, the lease was to terminate on a written notice at the end of a year; but, in the case at bar, there is no limitation independent of the condition subsequent ; and the notice has no effect on the demise, except to show that the landlord elected to profit by the breach of the condition subsequent.

Summary proceedings are in derogation of the common law, and must be strictly construed; Benjamin v. Benjamin, 5 N. Y. 383, 385.

Wm. H. Haeselbarth, for respondents.

Per Curiam.-The object desired to be accomplished by the issuing of the writ was, to prohibit the justice, to whom it was proposed to direct it, from entertaining summary proceedings to remove the relator from the possession of certain demised property. The application for that purpose was based upon the misconduct of the tenant in the use of the property, and for withhold

People ex rel. Browne v. McAdam.

ing it from the petitioner after the service of a notice, which it was provided by the terms of the lease, should terminate the tenancy. In a case, therefore, appearing to be within the provisions of the statute, and which the officer to whom it was made was authorized to entertain, and to make a judicial determination upon it (Code Civil Procedure, § 2234).

Whether the case, as it was stated in the petition, was sufficient within the provisions made by section 2231 of the Code, it is not actually necessary now to decide; although it seems to have been, so far as it depended upon the right of the petitioner to repossess himself of the property after the expiration of the time mentioned in the notice (Matter of Miller v. Levi, 44 N. Y. 489.)

However the merits may be viewed, the inquiry aris ing under the allegations of the petition was a proper one for the consideration of the officer to whom it was directed. For the tenant could be lawfully removed from the demised premises if they had been devoted to any illegal business other than the purposes specifically mentioned in subdivision 4 of section 2231 already referred to, or in case he held over after his term had ended, under the limitation provided for by the terms of the lease.

The case possibly may not be broad enough to bring it within either of the provisions of this section. But even if it should be so construed, it will not follow that the relator is entitled to restrain its prosecution by means of the writ of prohibition. For it would still be one which the officer to whom the petition was presented could lawfully consider, and it is not to be assumed, in support of such an application as the present, that he would improperly determine it. The regular course of the proceeding, as it has been provided for, required the tenant to appear before the officer, and either deny the facts set forth as the foundation of the proceeding,

People ex rel. Browne v. McAdam.

or move for their dismissal because of the insufficiency of the causes assigned for the removal of the tenant.

It is true that an erroneous decision may be made against him, and that such an application may be sustained when it should be dismissed. But for the correction of the error, the same remedy has been provided as the tenant is entitled to resort to for the correction of any other improper determination in the course of such a proceeding;* and he should be restricted to this mode of redress when it can be seen, as it plainly can in this case, that it will afford the tenant all the protection which his rights may entitle him to claim.

It was not contemplated that he should resort to this writ of prohibition from the mere apprehension, that the case before the officer entitled to entertain it, might be improperly decided against him. Something further than such a possibility should be made to appear, before this court can legally be expected to interfere with the proceedings by issuing a writ of prohibition. As it was progressing before the officer, it was in entire accordance with the provisions adopted for this purpose by the Code of Civil Procedure, and the tenant should avail himself of the means of protection which have been so prescribed, and which are sufficient to prevent injustice being done to him, instead of applying for the intervention of this court to arrest the proceeding, when no real necessity for its interference has been made to appear.

No such case was made out as would warrant the issuing of a writ of prohibition, and the order made should therefore be affirmed, with $10 costs and the disbursements.

BRADY and DANIELS, JJ., sitting.

* Appeal is now the remedy (section 2260), that mode of review having been substituted for certiorari. See Mr. Throop's note to section 2261 of his edition of the Code.

Dusenbury v. Dusenbury.

DUSENBURY AND ANO., RESPONDENTS, v. DUSENBURY, ADMINISTRATOR, &c., APPELLANT.

N. Y. COMMON PLEAS, GENERAL TERM; MARCH, 1882. SS 481, 713, 1207.

Receiver pendente lite.— Appointment of, when not sustained on concurrent requests in answer and reply.-- Demand for relief not binding on suitor. When demand given controlling effect.— In accord

ance with what, judgment is given.

When the appointment of a receiver pendente lite was a part of the relief * demanded by the defendant, in his answer, and the plaintiffs, in their reply, also demanded such appointment, and then, on these concurrent demands only, moved for the appointment of such receiver,— Held, reversing the special term, that the plaintiffs' application not having been brought within the provisions of subdivision 1 of section 713 of the Code, the appointment could not be sustained on the concurrent demands.

A party should ask that relief to which he supposes himself entitled; but, by so doing, he is not precluded from declining to take any part of such relief, or from demanding additional relief warranted by the facts. Judgment is given by the court in accordance with the facts, and not the requests of the suitors.

The demand for relief is given controlling effect, only when there is no

*

* From Mr. Throop's notes to sections 481 and 1207 of his edition of the Code (1880) it seems that, strictly speaking, the use of the term “relief,” as applied to that aid which the suitor demands as a conclusion supposedly following from the facts set forth in his pleading, is no longer proper. Subdivision 3 of section 481 is as follows: "A demand of the judgment to which the plaintiff supposes himself entitled." And he says in his note to this section: * * "In subdivision 3, 'judgment' has been substituted for 'relief;' the latter expression having led to much confusion, especially with respect to prayers for provisional remedies, etc." * And in his note to section 1207 he says: "Co. Proc., 275. The material portions of the original section have been preserved intact, except that the word 'judgment' has been substituted in place of 'relief,' in accordance with the plan followed throughout this act."

* *

* *

Dusenbury v. Dusenbury.

answer; then, judgment cannot exceed that which is asked for in the complaint; but, if an answer is interposed, the court grants any relief within the case shown by the complaint and embraced within the issue. (Decided June 5, 1882.)

Appeal by defendant from an order of the special term appointing a receiver pendente lite.

This action was brought by the plaintiffs as the alleged surviving partners of the firm of Thomas Dusenbury & Sons, against the defendant, as the administrator of Thomas Dusenbury, deceased member of said firm, to recover possession of the assets of said firm, or for damages in case delivery thereof could not be had.

The answer admitted possession of the property claimed, put in issue the fact of partnership and set up a counterclaim; and, among other demands for relief, including an accounting, prayed that pending the action which would determine the ownership of the property, a receiver might be appointed. The plaintiffs, in their reply, among other demands for relief, also prayed for the appointment of a receiver as demanded by the defendant. Because of these concurrent requests for the same relief, the plaintiffs moved for the appointment of a receiver, although there was nothing in the motion. papers showing that there was danger that the property claimed would be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed. The defendant opposed the motion, but a receiver was appointed.

Ira D. Warren, for appellant:

A receiver cannot be appointed before final judgment, except in a case within subdivision 1 of section 713 of the Code. Goodyear . Betts, 7 How. 187; Gregory v. Gregory, 33 N. Y. Super. 1, 39; Patten v. The Accessory Transit Company, 4 Abb. 235. It does not appear that the property in dispute is not as safe in the

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