Jackson v. Whedon

1 E.D. Smith 141

Opinion

By the Court. Ingraham, First J.

The defendant has no right now to avail himself of the objection, that the plaintiff was not the real party in interest. He should have raised that point in his answer, if he intended to rely upon it. By his answer he set up, as a defence, that he never hired or occupied the premises, and if he did occupy them, he had surrendered the premises to the plaintiff, who had possession since, and that the premises were untenantable. After making these issues, he has no right, upon the trial, to set up as a defence, that a third person was the real plaintiff.

It may be said that the plaintiff admitted that Blake was the real party in interest, and, therefore, he is concluded by his own admission; but this admission was made after the court had decided that it was a legitimate inquiry on the part of the defence. The admission was merely to save the examination of the witness, and is nothing more than if the witness had so testified after the plaintiff’s objection.

The action was for rent. The agreement was admitted, by the defendant, to have been made with the plaintiff, as his landlord, and he is not permitted to deny his landlord’s title. It was not necessary to prove an actual occupation, but if necessary, it was fully made out by the conversation proven to have taken place with the defendant, and on this point the court below has found against the defendant, which is conclusive.

The remaining ground of appeal is in regard to the security given before the issuing of the summons.

Both parties have argued this point, on the supposition that the provisions of the revised statutes, relating to justice’s courts, apply to this city.

Footnotes

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(a) By a section at the end of that title, it is expressly provided that that title shall not apply to the courts in New York. The laws governing these courts will be found in the 2d R. Laws of 1813.(b)

By the 90th section of that act, provision is made for the security in the case of non resident plaintiffs. The act does not require the surety to be a resident, nor does it prescribe his qualifications.

This section is applied to the marine court, by section 112. In the 120th section, the court may examine the surety or not, but he is not required to be sworn, as necessary to give jurisdiction.

By the 32d section of the act to abolish imprisonment, &c., these proceedings are applied to the summons instead of a warrant, but nothing requires any particular qualification from the surety, as necessary to give jurisdiction. From these references, it is apparent that the court obtained jurisdiction by the security given, and having once obtained jurisdiction, the subsequent order in regard to the additional security did not affect it. I think it more doubtful whether the court could relieve the first surety by ordering other security to be filed.

The judgment below should be affirmed.

Note by Reporter.—These provisions are in 2 R. S., title 4, “ Of courts held by justices of the peace,” chap. 2, part 3, pp. 225 to 274.

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Rote by Reporter.—Pages 370 to 399 ; and see laws of 1831, chap. 300, § 29 and onward. (2 R. S., 4th ed., p. 229, marg. p. 61.)