Alvord agt. Hetsel.

SUPREME COURT.

SUSAN ALVORD, plaintiff, agt. JOHN HETSEL, defendant.

Complaint-Necessary averments in action to recover real estate.

The complaint in an action to recover real estate ought to aver that the plaintiff is the owner or seized in fee, and is entitled to the possession or that defendant wrongfully or unlawfully witholds possession from plaintiff.

Montgomery Special Term, April, 1885.

DECISIONS on demurrer to complaint.

John M. Gardner, for plaintiff.

E. Blair, for defendant.

FISH, J.-I think the complaint in an action to recover real estate ought to aver that the plaintiff is the owner or seized in fee, and is entitled to the possession, or that defendant wrongfully or unlawfully withholds possession from plaintiff.

The complaint is defective in these particulars. The defendant may be rightfully in possession even though the fee is in the plaintiff (14 How. Pr., 439; Ensign agt. Sherman, 4 Abb. Pr. R., 307; 16 How., 308; Saunders agt. Leroy, 23 Bosw., 228; Walter agt. Sackwood, 28 Bosw., 240; People agt. Mayor, 31 Hun, 296; Van Voorhees agt. Kelly, opinion by DANIELS, J.).

Demurrer sustained.

NOTE.-Abbot's Forms (pp. 513, 514) unfavorably affected by decision.

[ED.

Kiernan agt. Reming.

NEW YORK SUPERIOR COURT.

PATRICK KIERNAN, plaintiff, agt. MARGARET REMING, defendant.

Injunction in summary proceedings- Code of Civil Procedure, sections 2239 to 2265.

The court may restrain, by injunction, summary proceedings, if the justice goes beyond his jurisdiction, either in taking cognizance of the proceedings or while he is acting in it, and if it appears that the justice who granted the warrant, the enforcement of which is sought to be restrained, was without jurisdiction, the injunction should be continued. A justice has no power in summary proceedings to adjourn the same except for the purpose of enabling a party to procure his necessary witnesses.

Where, upon the return of the precept, the tenant filed a verified traverse of the return and moved to dismiss the proceedings, and the justice, after hearing the testimony of the parties as to the service of the precept instead of rendering his decision upon the close of the evidence, adjourned the proceedings for the purpose of decision :

Held, to operate as a discontinuance of the proceedings.

A justice, other than the one before the precept is returnable, has no jurisdiction to issue the warrant.

Special Term, June, 1885.

MOTION to continue injunction to restrain the defendant from enforcing a warrant to dispossess the plaintiff from certain premises under a final order.

The opinion states the facts.

William H. Kelly and Leonard A. Giegerich, for plaintiff and motion.

Henry C. Botty and John W. Goff, for defendants and opposed.

INGRAHAM, J.-Summary proceedings for the recovery of the possession of real property in the city of New York are regulated by the Code of Civil Procedure. By sections 2239 VOL. II

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Kiernan agt. Reming.

and 2265, inclusive, the proceedings statutory must be strictly followed to give the court jurisdiction.

In Chadwick agt. Bray (1st Code of Civil Pro. R., 425) it is held that if the justice goes beyond his jurisdiction, either in taking cognizance of the proceeding or while he is acting in it, the court may restrain, and if it appears that the justice who granted the warrant, the execution of which is sought to be restrained, was without jurisdiction, the injunction should be continued.

Section 2243 provides that at the time the precept is returnable the petitioner must, unless the adverse party appears, make due proof of the service of the precept. In this case the adverse party appeared, but for the purpose of objecting to the service, and the court proceeded to take proof of the service of the precept.

Section 2249 provides when a final order awarding the petitioner the possession of the property shall be granted.

First, If sufficient cause is not shown upon the return of the precept, and

Second. Where there is a verdict of the jury, or a decision of the justice upon the trial in favor of the petitioner.

In this case no answer was interposed and there was no trial before the magistrate. It was the duty, therefore, of the justice present when the precept was returnable, if suffcient cause was not there shown, to have made the order awarding the petitioner the possession of the property. Such an order was not made, however, and an adjournment was taken for the purpose of decision. This adjournment was not taken at the request of the plaintiff, nor with his express consent. He insisted at the time that the proceeding should be dismissed.

It has been decided by the general term of this court, that where there is no provision of the statute authorizing an adjournment and an indefinite adjournment or postponement is taken for deliberation and decision, that the proceedings are discontinued and the justice or the court loses jurisdiction.

Kiernan agt. Reming.

(Boller agt. Mayor, etc., 40 N. Y. Supr. Ct. Repts., 537.) The only provision for the adjournment of these proceedings is contained in section 2248 of the Code, which provides that at the time when issue is joined, the judge or justice may in his discretion, at the request of either party and upon proof to his satisfaction by affidavit or orally, that an adjournment is necessary to enable the applicant to procure his necessary witnesses, or by consent of all the parties who appear, adjourn the trial of the issue.

This section would not authorize the adjournment in the case at bar. There no answer was interposed. There was no issue joined, and there could be therefore no necessity for an adjournment to procure witnesses.

In Boller agt. Mayor (supra) it was held that by expressly authorizing an adjournment for a specific purpose, and on a specific condition the statute impliedly prohibited all adjournments except such as are expressly authorized, and that by an unauthorized adjournment the magistrate before whom the proceedings were pending exceeded his jurisdiction, and his future proceedings are void. The adjournment in this case, therefore, under this authority worked a discontinuance of the proceedings, or at any rate a justice, other than one before whom the precept was returnable, had no jurisdiction to issue the warrant. The warrant issued, therefore, was void. I think, however, the security given by the plaintiff is insufficient, and the plaintiff should give an undertaking in the sum of $2,500, that he pay all damage sustained by the defendant in case it should finally appear that he was not entitled to an injunction. On giving such a bond the injunction is continued, plaintiff to have ten dollars costs of this motion to abide the event.

The People agt. Wise.

COURT OF SESSIONS.

THE PEOPLE agt. JAMES J. WISE.

Indictment must show on its face a criminal offense - Election law - Penal Code, section 94- Offense under · - Penal Code, section 649- What cases it covers- Repugnancy a fatal objection to an indictment.

The provisions of the Code of Criminal Procedure relating to indictments should be construed with the common law principles of pleading, and where no provision is made by the Code, the common law rule should prevail.

The Code has not changed the common law rule that an indictment must show on its face a criminal offense.

Under the general election laws the return of the results of an election to be given to or filed with the supervisor of the town or ward in which the election was held, must be the original return and not a mere certified copy.

Accordingly, where it appeared on the face of an indictment that a copy of a return was given to and filed with the supervisor of a ward, and that it was mutilated by him, no offense is shown under section 94 of the Penal Code, as it was not filed or deposited with him "by authority of law."

To constitute an offense against a statute for the protection of a document or paper of any kind, it must appear to be the kind of document or paper specified in the statute.

Section 649 of the Penal Code covers only cases of a messenger appointed by authority of law, or any person who interferes with such messenger. Repugnancy (there being two inconsistent allegations in one pleading) is a fatal objection to an indictment since, as before the Code of Criminal Procedure.

Cases stated as to how and when the words and figures of a document or paper should be set forth in an indictment.

Albany county, June, 1885.

Before Hon. JOHN C. NOTT, county judge, and associates.

THE defendant filed a demurrer to the indictment found against the defendant. The indictment is as follows:

The grand jury of the county of Albany, by this indictment, accuse James J. Wise of the crime of willfully and