10 A.D. 62 | N.Y. App. Div. | 1896
This action seems to have been instituted for the purpose of procuring a stay pending the appeal from a judgment entered in dispossess proceedings against the plaintiffs. There is no ground for the maintenance of such an action. The law has provided for the procedure in cases of this description, and courts of equity cannot be appealed to to secure stays of proceedings which the statute prohibits.
It is sought to maintain this suit, however, upon the ground that the District Oourt which entertained the dispossess proceedings had no jurisdiction, because it did not appear from the record that the plaintiff Isidor Ludwig was served with the precept in the manner prescribed by the Code. It appears from the papers that Bernhard J. Ludwig, the plaintiff, was the lessee of the premises in question and that they were occupied by Ludwig Bros, as undertenants, said firm being composed of Bernhard J. and Isidor Ludwig. It further appears from the papers, as presented upon the part of the defendants, that Isidor Ludwig is a person of unsound mind and absent from the city. There is no dispute but that Bern-hard J. was duly served with the precept; and we are not aware of any rule in proceedings of this nature where the premises are in the possession of a firm, which requires that each member of the firm shall be served with the precept in order to authorize the District Court to entertain the proceeding and to issue its warrant for the dispossession of the firm. Bernhard J. Ludwig, a member of the firm, being duly served, the magistrate had jurisdiction to entertain the proceeding and to issue the final warrant. The lessee and the undertenants were served. Hence the proceeding was regular.
We are, therefore, of the opinion that the injunction should not have been granted; and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for an injunction pendente lite denied, with ten dollars costs.
Barrett, Rumsey, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
