In re White

12 Abb. N. Cas. 348

Opinion

Lawrence, J.

The provisions, of the Code of Civil Procedure relied upon by the petitioner’s counsel are not applicable to the “summary proceedings to recover the possession of real property,” which are provided for by title 2 of chapter 17 of the Code, sections 2231 to 2265 inclusive; sections 2951 and 2952 relate to actions in which the question of the title arises. In this summary proceeding the question is not as to title, but as to the right to the possession of the property, and the case here arises under the 4th subdivision of section 2232 relating to squatters. By section 2247, the issues joined by the petition and answer must be tried by the judge or justice, unless a demand is made for a trial by jury. It would be anomalous in the face of this provision to issue the injunction which is prayed for in this case. Furthermore, under section 2365, if I have the power to grant an injunction, I cannot exercise it, until there has been a final order. The motion will therefore be denied, with costs.