73 N.Y.S. 472 | N.Y. App. Div. | 1901
Lead Opinion
This is a suit in equity to have an assignment of a lease by defendant’s husband to her declared null and void, on the ground of fraud and illegality, and to perpetually enjoin the execution of a warrant issued upon a final order in a summary proceeding- instituted in the Municipal Court of Hew York by the appellant, as petitioner, for the removal of the respondent from premises. Ho. 45 Whitehall street in the borough of Manhattan. The lease in question was executed by Isaac Seckle, the owner of the premises, to Robert Garcewich, for the term of five years from the 1st day of January,'1897. It was thereafter assigned to Morris Garcewich, appellant’s husband, who entered into possession thereunder and conducted thereon a men’s furnishing business; and it is the contention of the plaintiff that he continued to occupy the premises until about the 27th day of July, 1901, but that is controverted. On the 11th day of July, 1901,. three creditors of Morris Garcewich petitioned the United States District Court for the southern district of Hew York, praying that he be adjudicated a bankrupt, and his consent thereto was filed therewith. The court on that day duly appointed a receiver of the property, assets and effects of said Garcewich,. and on the twentieth day of the same month Garcewich was duly adjudged a bankrupt. The respondent also claims that
The question presented by this appeal is, whether on these facts
It follows from these views that the injunction order was improperly granted, and it should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Van Brunt, P. J., and Hatch, J., concurred; Ingraham and Patterson, JJ., dissented.
Dissenting Opinion
1 do not think that the Municipal Court had any jurisdiction to pass upon the question as to whether the assignment of the lease to the defendant by her husband should be set aside. Until that assignment was actually set aside, there was no defense to the summary' proceeding before the Municipal Court; and as that court had no jurisdiction to pass upon that question, its determination was not an adjudication binding upon the plaintiff. ' The Municipal Court has no equitable powers, and any attempt of the Legislature to ■ confer upon it equitable jurisdiction would be prohibited by the Constitution (Art. 6, § 18). I think this was clearly a case in which the
' I think, therefore, the order should be affirmed.
Patterson, J., concurred.
Order reversed, with ten dollars costs. and disbursements, and : motion dismissed, with ten dollars costs.