45 Barb. 164 | N.Y. Sup. Ct. | 1865
The defendant has not sued out the certiorari in this case, and does not, appear. For aught that appears, he acquiesces in the determination of
It is claimed by the plaintiff’s counsel that Leonard has no right to the writ of certiorari to review the proceedings before the county judge, inasmuch as he was not there a party in form or substance, having according to his own showing no conventional relation as tenant to aiiy one, and certainly not to the plaintiff or landlord id the proceedings. In the view I have taken of this case it is not perhaps necessary to decide this question. I am inclined to the opinion, however, that the objection is well taken. He might have” made himself a party.
The 34th section of the statute, above referred to, authorizes any person in possession .of the demised premises, or any person claiming possession thereof, at the time appointed for showing cause, to come in and file Ms affidavit with the
I think the true test as to the right of review is, was the person seeking to review, a party in form or in substance to the proceeding sought to be reviewed so as to be concluded by the determination thereon ? If not, although his rights may have been infringed by an improper execution of the process, I think he can not bring up the matter for review. If my brethren agree with me in this view, the writ should be quashed. Proceeding upon the other view, that Leonard is a party in substance and effect, and has properly sued out this writ as such, if no error appears upon the record, the determination and proceedings should be affirmed. Such a determination of this proceeding might possibly conclude him, or at least greatly embarrass him in the prosecution of another remedy. I am of the' opinion that the writ should be quashed, and Leonard pay the plaintiff’s costs.
Judgment accordingly.
Johnson, E. Darwin Smith and James C. Smith, Justices.]