In re Shotwell

10 Johns. 304 | N.Y. Sup. Ct. | 1813

Dissenting Opinion

Per Curiam. (Spencer, J. dissenting.)

This case comes before the court on motion, on behalf of Gilbert Shoiwell, that Isaac Clason, George Depeyster, and William A. Thompson, show cause why the said Gilbert Shotwell and Samuel Briggs, or either ef them, should not be restored to the possession of a house and farm in Yonkers, in Westchester county, from which they or one 0f them was expelled on the 5th of last February.

The motion is grounded upon affidavits, and several affidavits have also been produced in opposition to the motion.

Without going into the facts at large, as detailed in the affidavits, it is sufficient to state that Briggs was ousted by order of a justice, on the complaint of George Depeyster of a forcible entry and detainer. That a certiorari issued to the justice to return the proceedings, and that he died before a return was made. It is then a matter of necessity that the court should decide the case upon affidavits; and it appears from the books that proceedings under the statutes of forcible entry and detainer, have frequently been quashed in the K. B. for irregularity, and restitution of the party aggrieved awarded, and that too upon motion and affidavits. (King v. Stacy, 1 Sid. 287. King v. Bengough, 3 Salk. 170. King v. Challenors, 1 Sid. 156. King v. Layton, 2 Salk. 450.)

The proceeding of the justice was clearly irregular and void, in permitting restitution, upon his own view, without an inquisition by jury. When the justice acts upon his own view only, he can punish the party guilty of the force, by fine and imprisonment} but he cannot meddle with the possession without the intervention of a jury. This is the plain meaning of the second and third sections of our statute on this subject, when taken and compared together; (Laws, sess. 11. c. 6. p. 102, 103.) and the English decisions on the statutes, of which ours is a copy, are expressly and decidedly to this effect. (King v. Challenors, 1 Sid. 156. 1 Vent. 308. 12 Mod. 495. Anon. 12 Mod. 516. King v. Brown.) As far as we can collect from the imperfect notes of the proceeding, as made by the justice, and from the affidavits which go to supply their deficiency, no proceeding could have been more irregular and unwarranted. There was not even a fine imposed upon the party, and which alone has been deemed a fatal omission. (King v. Elwell, Str. 794.) Nor, in fact, did there exist any thing like a forcible detainer, within the meaning of the law. The proceeding was lawless and violent. In quashing the proceeding, restitution is a matter of course. It is demanded in this case under the exercise of a sound discretion. We cannot investigate the title, upon affidavits. The only inquiry is as to the force, and the regularity and equity of the proceeding. (People v. Shaw, 1 Caines' Rep. 125. The People v. King, 2 Caines’ Rep. 98.)

• Borne of the affidavits in opposition to the motion seem to conhder the ouster of Briggs and his family as done by private authority, and not by the sanction of the justice. But as the justice attended on the complaint of the party principally concerned in effecting the ouster, and considered himself as acting under the? authority of the statute, and the parties were sheltering themselves at the same time under his sanction, they cannot now be heard.to say it was an act of private trespass, aiid to be redressed by private action. The act was done under the colour of the authority of the magistrate, and the honour of the law is concerned in affording the injured party the prompt and effectual redress which the lav/ has provided for such cases, under the superintending authority of this court.

We are, therefore, of opinion that the motion be granted, and a writ of re-restitution awarded.

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Dissenting Opinion

Spencer, J. (dissenting.)

We are applied to for a writ of re-restitution, to put the applicant in possession of a house, Sec. whereof Samuel Briggs was dispossessed on the 5th of February last.

It appears that a certiorari has been issued to jEJ. Williams, a justice of the peace oí Westchester county, and that he died in April last, without having made any return. It appears also, that the justice delivered to Mr. Munro a paper to aid him in drawing up a return, which was intended for, and purports to be, a conviction of Briggs of a forcible detainer, but it sets no fine upon him, nor does it show that the justice ordered the possession of the house, See. to be delivered up; but from a memorandum made by Mr. Munro, on the paper, in the handwriting of the justice, and from his admissions to him, it appears, that on Briggs’s refusal to deliver up possession, he was ordered into custody ; and Mr. Munro states that the justice informed him, that when the goods of Briggs had been removed from the premises,1 the justice then ordered him to be enlarged.

In the case of The People v. Shaw, (1 Caines’ Rep. 129.) this court recognised the decision in The People v. Beebee and others, that if the indictment be bad, re-restitution must follow oí course; and in the case of The People v. King, (2 Caines’ Rep. 99.) the same principle was adopted. In the case of The People v. Shaw, the Chief Justice observed, that “ from the general discretionary power this court has in these cases, they may set a restitution aside and award a re-restitution, whenever it shall appear that restitution hath been illegally awarded, either for insufficiency, or defect in the indictment, or other cause.” Now, from the paper ¿¡ejrverecL by the justice to Mr. Munro, or from any instructions given by the justice to him to prepare the return, we cannot presume that the justice ordered restitution; and admitting that the’ conviction, if it be considered such, be quashed, a re-restitution would not be the consequence; the paper purports merely the conviction of Briggs of a forcible detainer; it neither sets a fine nor awards restitution. The complainant, then, has not been devested of his possession by any judicial proceeding of the magistrate. Hawkins (b. 1. c. 64. s. 65.) lays down the law with accuracy, and the cases he refers to bear him out, that “ neither can a defendant, in any case whatsoever, ex rigore juris, demand a restitution, either upon quashing the indictment, or a verdict for him on a traverse thereof, See. for a power of granting a restitution is vested in the K. B. only by an equitable construction of the general words of the statutes, and is not expressly given by those statutes, and is never made use of by that court, but when, upon consideration of the whole circumstances of the case, the defendant shall appear to have some right to the tenements, the possession whereof he lost by the restitution granted to the prosecutor.”

The complainant, Shotwell, obtained possession of the house, &c. occupied by George Depeyster, in • October last, according to Depeyster’s affidavit, by force, and according to his own, by fraud, provided Depeyster was Isaac Clason’s tenant. Shot-well’s right to claim the premises was derived from a sale of them under a judgment against B. F. Haskin. Haskin swears that he never had the fee of the farm in him, and that he had but a short and temporary interest therein, and that Clason, on the 6th of February last, and for several months previous, as he believed, had a good title to the same, Clason swears that he claims the fee of the farm, having purchased and paid therefor a full consideration; that G. Depeyster and C. Stacy were his tenants under written leases, and had been several months in quiet possession thereof, until about the 1 fth of October last, when G. Shotwell entered thereon, without his knowledge or consent; that Stacy, the co-occupant, remained in possession, as his tenant. Caleb Stacy swears he has occupied the farm, house and premises under Isaac Clason for better than 13 months past, accorditig to written agreements; that he went on in March, 1812, and has ever since resided in a house on the said farm, within a few yards of the house in which Briggs resided, both of which houses are in the same yard; and that he used, in common with Depeyster, before his expulsion, the same garden, pump, barn, cattle, and farming utensils, and that he took care of the stock of the premises, and that the principal work and labour xvas under his directions. Lavinia Stacy and Silvanas Stacy confirm all the facts stated by Caleb Stacy.

With respect to the conduct of Justice Williams, on the 5th of February, there is great discordance in the affidavits for and against the motion. I think the weight of evidence is, that the justice illegally and unwarrantably lent his aid in inducing Briggs to surrender up the possession. But I am of opinion, that in the exercise of a sound and just discretion, we ought not to grant a re-restitution. The complainant himself, having originally become possessed by force or collusion with Depeysler, Clason’s tenant, comes with an ill grace to ask a restoration; it is impossible. to say, were we inclined to interfere, how far, and to what he ought to be restored. I think, that inasmuch as the justice never judicially awarded a writ of possession, nor pretended expressly to restore Depeysler to his possession, that we have no right to grant a restitution; and if we had, this case is presented with such accompanying circumstances, as not to call forth the exercise of ■the discretionary poxver with which we are armed.

Proceedings quashed an.d a xvrit of re-restitution awarded;