Guernsey v. Powers

16 N.Y. Sup. Ct. 78

• Court: New York Supreme Court
• Decided: November 15, 1876
• Status: Published

Opinion

Per Curiam:

Section 455 of the Code declaring that the general provisions of the Revised Statutes relating to actions concerning- real property should apply to actions brought under the Code, would seem to indicate that no material change in the rights of parties to such actions was contemplated by the new practice.

By those provisions waste might be stayed by order pending the action (2 R. S. [6th ed.], m. p., 336, § 13), and after judgment the rents and profits might be recovered. (2 R. S., 310, § 36.) The plaintiff in this actiop does not claim that a receiver could have been appointed under the old practice pending the action.

The very general language of section 244 of the Code should be construed with reference to familiar and well settled doctrines of law which existed before the enactment.

We think the views stated in Thompson v. Sherrard (35 Barb., 593) are sound and should be followed. The case of Ireland v. Nichols (37 How., 222) was peculiar. Even if that case was, under the circumstances, correctly decided, it should not be followed in cases like the present. There are many evils which would arise from the practice of taking the defendant’s real estate away from him pending the action.

The order should be reversed, with ten dollars costs and disbursements.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order reversed with ten dollars costs and printing, and motion denied with ten dollars costs.