Grissler v. Stuyvesant

67 Barb. 77

Opinion

By the Court, Ingraham, P. J.

The only cause of action stated in the complaint is that the defendant had brought an action of ejectment in the Superior Court, against the plaintiffs, for the recovery of certain real estate, and had afterwards commenced summary proceedings to recover possession of the same premises, for non-payment of rent. That the proceedings of the defendant, in procuring such summons, are injurious to them and an abuse of the proceedings under the statute. To this the defendant demurs.

It is difficult to see any good cause of action above stated. It is no ground for an injunction that the proceeding is injurious to a party, if such proceeding is proper. If it is not legal for the party to take such remedy, it should be defended by showing such illegality in the proceeding sought to be enjoined. Success in either of those proceedings can be pleaded to defeat the other.

The demurrer was properly sustained, and the judgment should be affirmed only so far as to render judgment on the demurrer, with costs. So much as dismisses the complaint is vacated.

Ingraham, Fancher and Davis, Justices.]