People ex rel. Pierce v. Covill

27 N.Y. Sup. Ct. 460

• Court: New York Supreme Court
• Decided: April 15, 1880
• Status: Published

Opinion

Boardman, J. :

Ordinary writs of certiorari do not issue until a final determination has been had in the inferior court or tribunal. (People ex rel. Dickinson v. Super’s Livingston, 43 Barb., 232, affirmed 34 N. Y., 516, and cases cited.) But this is not strictly true in cases of summary proceedings for forcible entry and detainer. Such proceedings may be removed into the Supreme Court by certiorari at any time after inquisition (2 R. S., 510, §§ 19, 20, 21, 22), but not before inquisition. (Haines v. Backus, 4 Wend., 213.) The proceedings on such removal are given in the sections above referred to. By section twenty-one, “the Supreme Court, shall proceed therein (after the return is made) and cause the defendant to traverse the inquisition, if no traverse has been had, and shall direct a trial.”

So it appears the traverse may be made before or after the granting of the writ. The object to be attained is the trial of the traverse in the Supreme Court. The practice indicated is sustained by authority. (5 Wait’s Pr., 313; People v. Hickox, 3 Hill, 446; Carter v. Newbold, 7 How., 166.) We conclude, therefore, that the learned judge erred in quashing the writ in this case as prematurely issued.

The respondents urge other defects in the proceedings for which the writ should be quashed. We do not consider these questions properly before us upon this appeal. They should first be heard and passed upon by the Special Term. If there be defects which are serious, they may, perhaps, be remedied by means of amendment or additional papers.

The order of the Special Term is reversed, with ten dollars costs and disbursements.

Learned, P. J., and Bockes, J., concurred.

Order quashing writ of certiorari reversed, with ten dollars costs and printing disbursements.