McIntyre v. Hernandez

7 Abb. Pr. 214, 39 How. Pr. 121

Opinion

Monell, J.

If an appeal could be taken from the determination in the proceeding before the justice of the marine court to the court of common pleas, I am inclined to think enough was done by the plaintiff to perfect the appeal, and that such appeal would stay all proceed ings before the justice. But it seems to be quite settled that no such appeal can be taken (People v. Willis, 5 Abb. Pr., 205 ; Freeman v. Ogden,

Footnotes

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* 17 Id., 326 note).

The case of Davis v. Hudson (5 Abb. Pr., 61) merely decided that proceedings before a justice of a city district court could be removed by appeal; but even that case has since been disapproved (Romaine v. Kinshimer, 2 Hilt., 519).

The only mode of reviewing proceedings of this nature, instituted before any officer other than justices of the peace, is by certiorari out of the supreme court.

It is not necessary to decide whether the justice of the marine court could properly treat the appeal as a nullity, and refuse to regard it as a stay of proceedings ; for, even assuming that the appeal was well taken, I have not found the other facts sufficient to sustain the •injunction.

The cases in which this court will restrain by injunction proceedings of this nature, are those where the tenant has been deprived of an opportunity to make his defense, or where the defense was of an equitable nature, not cognizable by the officer (Deguid v. Hogan, 1 Bosw., 645 ; Seeback v. McDonald, 11 Abb. Pr., 95; Griffith v. Brown, 28 How. Pr., 4; Marks v. Wilson, 11 Abb. Pr., 87; Ward v. Kelsey, 14 Id., 106; Roberts v. Matthews, 18 Id., 199).

In such cases, a court of equity will sometimes relieve a tenant, and enable him to show by action that he ought not to be deprived of the possession.

But I have never known a case where a plaintiff has a legal defense to the proceedings, and interposes it and is defeated, that the court will interfere. Even when he has failed to interpose his defense an injunction is not allowed, unless in a strong case of fraud or surprise.

For errors committed by the officer, other remedies are provided. In the case of justices of the peace an appeal is allowed ; to other officers, a certiorari lies.

Whether these remedies are adequate in all cases may be questioned ; but they are such as the legislature has provided, and we can neither alter nor enlarge them.

The motion to continue the temporary injunction must be denied, and the temporary injunction dissolved, with ten dollars costs.

Affirmed in 40 N. Y., 105.