7 N.Y.S. 917 | N.Y. Sup. Ct. | 1889
Code Civil Proc. § 2265, provides that before final order summary proceedings shall not be stayed by any court or judge, “except in a case where an injunction would be granted to stay the proceedings in an action of ejectment.” “Proceedings of the plaintiff in an action of ejectment will not be enjoined where the questions involved can be determined at law, or where the ground relied upon for an injunction would be equally available, if urged as a defense to the action. ” Chadwick v. Spargur, 1 Civ. Proc. R. 424; High, Inj. § 325. “If the questions raised by the answer in this proceeding are within the jurisdiction of the justice to decide, the question of the correctness of his rulings must be raised by appeal.” Chadwick v. Spargur, supra; Jessurun v. Mackie, 24 Hun, 624. There is no allegation that the proceedings before the justice were fraudulent or collusive,—the grounds relied upon being that, by reason of certain defects in the petition, the justice acquired no jurisdiction to entertain the proceedings; and the second ground relied upon is that the plaintiff was unable to avail herself of the defense of a former action pending. Upon authority, it is clear that an injunction should not be granted where the respondent has an opportunity of being heard, and the injunction is an irregular attempt to review the rulings of the magistrate. Armstrong v. Cummings, 20 Hun, 313. Where all the questions raised may properly be inquired into and determined by the magistrate before whom the summary proceedings have been instituted, an injunction will not be granted. Bean v. Pettingill, 2 Abb. Pr. (N. S.) 58; affirmed, 7 Rob. (N. Y.) 7. In Cramer v. Amberg, reported in Daily Register, November 8,1888, in denying an application for a writ of prohibition, Mr. Justice Barrett said: “The justice had jurisdiction of the parties and of the subject-matter. If he errs, the remedy is by appeal. At all events, prohibition will not lie where he proceeds regularly under the Code with regard to summary proceedings.”
The preliminary objections raised before the justice—First, that the petition does not describe the premises; second, that the petition does not state the interest of the petitioner; third, that the petition is not verified according to law—were within his jurisdiction to pass upon, and, if any error had been committed, the remedy is by appeal. In other words, the justice, having jurisdiction of the parties and the subject-matter, could determine the validity of the objections raised, and his error, if any, in ruling thereon, should be remedied by appeal. The other ground relied upon, namely, that the plaintiff was unable to avail herself of the defense of a former action pending, is not sufficient to warrant the issuance of an injunction. This defense was raised by the answer, passed upon by the justice, and to the ruling made thereon an exception was taken. Applying the test fixed by the Code, would this be a sufficient ground for the granting of an injunction in an action of ejectment? The proceedings in such an action will not be enjoined when, as before stated, “the questions relied upon for an injunction will be equally