9 Wend. 227 | N.Y. Sup. Ct. | 1832
By the Court,
It is objected by the defendant in error preliminarily, that a certiorari in this case does not lie to the supreme court, but to the superior court of the city of New-York. The 24th section of the act of 1828, establishing the superior court, enacts that all writs of certiorari to the justices of the marine court and to the assistant justices of the said city, shall issue out of the superior court and be returnable therein in the same manner as was then practised in the supreme court, and that such writs should not thereafter issue out of, or be returnable in the supreme court. This section could only have reference to matters which were then cognizable before those courts, and removable by certiorari to the supreme court. Though the justices of the marine court and assistant justices had authority to execute the act of 1820,giv-ing the landlord a summary remedy against his tenant in certain cases, yet that statute gave no authority to the supreme court to review those proceedings. It was by virtue of the common law powers.of this court that certioraries were issued in such cases, and the legislature in establishing the superior court, did not confer on that court the common law powers of this court in reviewing the proceedings of inferior courts, being itself an inferior court. The certiorari then given to the superior court was the same which is now given to all the courts of common pleas to review the proceedings of justices in suits under the $50 act. But if the superior court had that power, the revised statutes being subsequent to the act of 1828, and having given the power to this court to award a certiorari for the purpose of examining any adjudication made on any application authorized by the statute in question, 2 R. S. 516, § 47, the jurisdiction of this court is placed beyond all question.
The plaintiff in error raises three points on which he relies for a reversal of the proceedings: 1. That the assistant justice had not jurisdiction, neither party residing nor the property being located in the wards for which he was appointed.
2. The second objection is not more tenable than the first. The officer must necessarily have the power of renewing the venire until a jury appears, otherwise there would be a failure of justice. It is a power incident to that of conducting an inquiry by means of a jury.
3. The main point below, and here, is, that the conveyance from Roach to Cosine, though absolute in its terms, was in reality a mortgage, as upon that depended the question whether the relation of landland and tenant existed between the parties. It was held by this court, in the case of Evertson v. Sutton, 5 Wendell, 281, that the act of 1820 authorized summary proceedings between those only who stood in the conventional relation of landlord and tenant, and not between those who became such by operation of law. The revised statutes have extended such authority to other cases, to wit, to a tenant who has been discharged under the insolvent law,or the actforthe relief of his person from imprisonment; and to any person holding possession of real property after a sale of it upon execution and a title perfected under color of such sale. The statute gives this remedy against tenants at sufferance. A
It cannot be contended that the statute under which these proceedings were had was intended to afford an expeditious mode of foreclosing a mortgage. It was intended to apply to the cases of landlord and tenant strictly, and the other cases specified.- It has often been said that a mortgagor, after forfeiture, is quasi tenant to the mortgagee ; but he is so only for the purpose of receiving notice to quit. 18 Johns. R. 488. 6 Cowen, 148, and cases there cited. He is not that kind of tenant who is to be dispossessed in the summary manner contemplated by this statute. That here was a verdict of a jury, forms no obstacle in the way of reversing these proceedings.