34 How. Pr. 1 | N.Y. Sup. Ct. | 1867
It was held at the circuit, that the warrant issued by the justice was void, and consequently, that it furnished no justification to the defendant. In order to affirm this ruling it is necessary to maintain either that the security given on bringing the appeal stayed the issuing of a warrant, or that by the operation of the appeal itself the proceeding was transferred to the county court, so that the justice could no longer act in it. These propositions will be considered in the order in which they are stated.
The question whether the issuing of a warrant was stayed by the security given, depends upon the construction of certain statutory provisions respecting summary proceedings to recover the possession of land, to which it becomes necessary to refer.
In 1849, an act was passed amending the revised statutes relating to summary proceedings, so as to confer jurisdiction of such proceedings upon justices of the peace. (Laws of 1849, p. 291, eh. 193.) One of the sections of said act pro
The Revised Statutes provide that summary proceedings to remove tenants may be resorted to in four distinct classes of cases : 1. Where the tenant holds over after the expiration of his term. 2. When he holds over after default in the payment of rent. 3. When the tenant has taken the benefit of an insolvent act, or of an act relieving him from imprisonment ; and 4. Where such person continues in possession of real estate which has been sold under execution against him, after title under such sale has been perfected. (2 B. S. 512, § 28.) Section 43 provides that whenever a warrant shall be issued for the removal of the tenant, the relation of landlord and tenant between the parties shall be deemed to be canceled and annulled. The next three sections provide for a stay of the issuing of the warrant in each of the last three clauses, on security being given by the tenant as required by the statute. In the case of a proceeding for the non-payment of rent, the tenant is to pay the rent due and the costs, or to give security for the payment of them in ten days ; and by an amendment adopted in 1857, if he does not
The construction above adopted gives full effect to the language of the section; leaving it to operate on the three classes of cases in which a right to stay the issuing of a warrant is given to the tenant, by the Revised Statutes.
The proposition that the appeal, of itself, deprived the justice of authority to issue a warrant, requires but a moment’s consideration. If the legislature intended that an appeal should have that effect, it was useless and unmeaning to enact that in order to stay the issuing of a warrant, security should be given, in addition to that required on appeal. The appellate court could not issue a warrant upon the judgment of the justice, and if the justice could not do it, by reason of the appeal, the giving of further security to prevent it would be an idle ceremony. I apprehend that an appeal taken by virtue of this statute, of itself, merely transfers the proceedings to the county court for the purpose of review, and does not affect the power of the justice to issue a warrant to enforce his judgment.
If these views are correct, the warrant was regular and valid, and the defendant having been put into possession of the premises by virtue of it, was justified in using so much, force as was necessary to defend himself and maintain his possession.
But as the construction of the statute is not altogether free from doubt, and there are other views of the case leading to the conclusion above stated, I will briefly consider them:
If it be assumed that the justice had not power to issue a warrant after the appeal, nevertheless his judgment, until reversed or set aside, was of force as an adjudication, and it determined that the lease had expired, and Harpending was entitled to the possession of the premises. The fact that an appeal had been taken, to another court, did not affect the conclusive nature of the judgment as a bar, while it remained
But let it be further assumed, not only that the warrant was void, but also that the judgment had ceased to be a bar, and that it was an open question whether the tenancy had terminated or was still in force ; how then stands the case ? The landlord, and the owner in fee, claiming that the term had expired, enters without process and without force, during the temporary absence of the tenant, but the tenant attempting soon after to oust him by violence, the landlord resorts to force to maintain his possession. Which committed the first assault ? There is not a particle of evidence that the plaintiff was entitled to the premises. His lease is not shown, and nothing appears on that point, except that he claimed that the term continued till. April, 1866, and the defendant disputed the claim. The defendant, when he entered, was not guilty of an assault, or a breach of the peace. Even if it be assumed that he was a trespasser, his position was very different from that of a mere stranger. He owned the premises in fee) and claimed to be entitled to the possession. Under these circumstances, the plaintiff had no right to take the law into his own hands, and attempt to dislodge the defendant by force, although his intrusion was but recent. The defendant, being in the actual possession, had a right to maintain it, and to use force, if necessary, for that purpose. This precise point was adjudged by this court in the case of Parsons v. Brown, (15 Barb. 590.)
The defendant being justified in using so much force as was
The result is, that a new trial should he ordered.
Ordered accordingly.
J. C. Smith, E. D. Smith and Johnson, Justices.]