| N.Y. Sup. Ct. | Mar 15, 1882
On or about May 1,1873, the “ Missionary Society of the Most Holy Redeemer in the city of Hew York,” leased the premises Ho. 228 South Fifth avenue, in the city of Hew York, to the relator for a term beginning at that time and ending on the day when said premises should be sold. The premises were conveyed Hovember 1, 1880, to the respondent Lersoher. On May 31, 1881, the latter instituted proceedings, in pursuance of the statute, before justice Parker, in the district court of the city of Hew York for the third judicial district, to recover possession of the property in question. The relator appeared on the return of such proceedings and moved to dismiss the same upon the following grounds :
First. That it did not affirmatively appear that the conventional relation of landlord and tenant existed between the parties.
*4 Second. That the alleged tenancy could be terminated only by the statutory notice to quit, which had not been given.
After hearing counsel, the justice denied the motion and adjourned the trial until June 14,1881, whereupon the relator obtained a writ of prohibition from this court restraining the justice from further action in the premises on the ground of want of jurisdiction.
Such jurisdiction is clearly conferred by the Code of Civil Procedure (sec. 2231 to sec. 2265, inclusive). The overruling of the preliminary objections by the justice is not necessarily conclusive as to his final decision of the case. A different conclusion may be reached, after further consideration, upon the merits. While a writ of prohibition lies to restrain a judicial tribunal from exercising jurisdiction in matters not within its cognizance, as well as those in excess of it (Thompson agt. Tracy, 60 N. Y., 31), it was never intended that this remedy should be used as a means of interfering with the orderly practice of the courts or as a method to stay summary proceedings (People agt. Steenbergh, 9 Albany Law J., 411).
The relator is not remediless. If the final order of the justice awards delivery of the possession of the property to the respondent the issuance of the warrant may be enjoined in pursuance of subdivision 2, section 2265 of the Code (See, also, Sherman agt. Wright, 49 N. Y., 227; Armstrong agt. Cummings, 20 Hun, 313).
Writ dismissed, with costs.