144 N.Y.S. 135 | N.Y. Sup. Ct. | 1913
It appears from the petition of Harry Hill, the relator, that, on or about the fourteenth day of October of the present year, one George Georgetson of Olean, Cattaragus county, commenced a summary proceeding under the provisions of subdivision 4 of section 2232' of the Code of Civil Procedure against the said Harry Hill to dispossess the latter from certain premises in the city of Olean., such proceedingbeing instituted before G. Frank Kelsey, a justice of the peace of said city. The ground on which the proceeding was based was that the relator had entered into possession of the said premises without the consent of said George Georgetson, who claimed to be entitled to the possession of said premises under a lease,from one Marcia Bradner, who was alleged to be the owner of said premises. The relator alleges in his petition that “ issue was joined in said action (proceeding) by the petitioner herein, Harry Hill, by the service and filing of an answer on the 22d of October, 1913, and that said answer denied that Marcia Bradner was the owner of said premises, and denied that George Georgetson was entitled to the possession thereof,” and that the relator objected to the jurisdiction of the justice on the ground that the question of title to real property was in issue, and that the said justice on the 30th day of October, 1913, overruled said objections and set the issues for trial before him on the 3d day of November, 1913. These allegations are followed by the proper formal matters, and the prayer of the petitioner is that a writ of prohibition issue out of this court directed to G. Frank Kelsey, the justice of the peace before whom the said summary proceedings are returnable and to George Georgetson, the plaintiff herein.
It will be assumed, without discussion, that this court may, in a proper case, issue a writ of prohibition to
No question of the sufficiency of the allegations of the moving papers are suggested, and no question is raised that the justice had jurisdiction of the summary proceedings, but the contention of the relator is that the petition in the summary proceeding having alleged ownership in Marcia Bradner, with right of possession in George Georgetson, and the relator having denied ownership in said Marcia Bradner, that under the provisions of sections 2951 and 2956 of the Code of Civil Procedure the justice is ousted of jurisdiction, and the writ of prohibition is asked to prevent the justice from going forward with the trial. We think this contention arises from a misapprehension of the purpose of the statute. Section 2951 of the Code of Civil Procedure, which is a part of chapter 19 of the Code in reference to justice’s court pleadings, provides that: ‘ ‘ The defendant may, either with or without other matter of defense, set forth in his answer facts, showing that the title to real property will come in question, ’ ’ but it should be remembered that a plea
It is not claimed that the defendant has 1 ‘ set forth in his answer any facts* showing that the title to real property will come into question.” A denial of an allegation of a complaint or petition is not a setting
We have so far treated the questions involved as though sections 2951 to and including 2957 were applicable to a special proceeding, but such is not the case. In Quinn v. Quinn, 46 App. Div. 241, the court says: “ The Municipal Court is not ousted of jurisdiction in summary proceedings by reason of the fact that the title to real property is involved. Those provisions of the Code of Civil Procedure which require a dismissal in oases of disputed title relate only to actions as distinguished from special proceedings.” People v. Goldfogle, 23 Civ. Proc. 417; Van Deventer v. Foster, 87 App. Div. 62, 64 and authorities there cited; Hollister v. Wohlfeil, 115 id. 400; Drake v. Cunningham, 127 id. 79, 80; Wetterer v. Soubirous, 22 Misc. Rep. 739, 742. The case last above cited, after laying down the broad proposition, quotes People v. Goldfogle, supra, as follows: “ The question in summary proceedings
See also La Rue v. Smith, 153 N. Y. 428, 430, 431 and authorities there cited.
The application should be denied, with costs.
Application denied, with costs.