Kelly agt. Sheehy et al. not a bare possession without title; but under color of title and claim of right, and being peaceable in its character, it should have been assailed by appropriate legal proceedings or not at all. In addition to the paper title under which he holds, the complainant has regularly paid all the taxes, assessments and other charges upon the property for many years past, and has in every way asserted and maintained his claim of title to the property. When the defendant Edward C. Sheehy took the lease from Olivia G. Ranney and others, in May, 1880, he knew that the complainant had possession of the property under a title adverse (if not superior) to that claimed by his lessors, and must have known that possession would not be quietly yielded by the complainant to one who came with hostile intentions. The lease was not produced upon the trial and is said to be lost. The term was one year, and the rental $100 for the term. No effort was made to enter under it until Sunday morning, the 28th of November, 1880, over six months after the term demised commenced. The fact that the complainant's possession made his title impregnable against attack from any source except by one having superior title of an invulnerable nature, makes it apparent that the complainant would not have welcomed an adverse claimant to the protecting ægis of his possession, when he must have known that he was surrendering to an enemy nine-tenth of the struggle in a prospective possessory common-law action of ejectment, where the plaintiff cannot litigate the inherent weakness of the defendant's title, but must rely solely upon the invulnerability of his own. The complainant naturally resisted the attempt to take possession, and yielded only after making the best resistance he could against an unexpected assault by superior numbers. The time and manner of taking possession were unlawful, and in clear violation of the statute. I need not cite authorities to sustain this conclusion, because it would be impossible to find anything in the annals of jurisprudence which sanctions a forcible Kelly agt. Sheehy et al. entry as a mode of possessing the property of another, even under adverse claim of title. The possession thus obtained is maintained and insisted upon and constitutes a forcible holding out, which the provisions of the Code I have cited were intended to redress. No injustice is done by restoring the complainant to the possession of which he is wrongfully deprived. The parties are merely returned to the position they occupied when the possession was wrongfully invaded on the Sunday morning in question. If the defendant Edward C. Sheehy, or those under whom he claims, have any title to the property in dispute, they may assert it in some appropriate mode by legal proceedings, but they must not take the law into their own hands and decide disputed questions of possession by acts or menaces of physical power. The complainant's counsel, upon the trial, for some reason of his own, elected to rely upon the forcible holding out, from which it may be inferred that he abandoned the forcible entry as a ground of recovery. This he had a right to do (People agt. Anthony, 4 Johns., 198; Same agt. Richett, 8 Cow., 226; Same agt. Godfrey, 1 Hall, 240; Same agt. Field, 1 Lans., 232; S. C., 52 Barb., 216), for the forcible detainer is a mere continuation of the first offense. The proof of the entire transaction is in evidence, however, and characterizes the holding out complained of. Patrick Sheehy and Cornelius Lynch disclaim any forcible holding out, and as to them the proceeding will be dismissed. Edward C. Sheehy insists upon the right to maintain the possession acquired in the manner before stated, and as to him a final order will be made, awarding to the complainant the possession thus wrongfully withheld. Under section 2250 (supra), the complainant will be awarded twenty-five dollars costs, and the defendants Patrick Sheehy and Cornelius Lynch will each be awarded twelve dollars and fifty cents costs. The disbursements actually incurred are to be added to these amounts. The technical point made in regard to section 2233 (supra) is without force The People ex rel. Higgins agt. McAdam. for two reasons: First. The petition filed clearly gives the court jurisdiction, which is not divested by the phraseology of that section. Second. The proper interpretation of section 2233 is that the proceeding for forcibly holding out may be maintained, not only in cases of forcible entry, but in cases where one "peaceably enters upon real property," without right, and "holds the possession thereof by force." In this case the entry was forcible and without right, and a fortiori the section applies. The final order in accordance herewith, together with the warrant, must be drawn and submitted to me for my fiat. COURT OF APPEALS. THE PEOPLE ex rel. FRANCIS HIGGINS, receiver, &c., respondent, agt. DAVID MCADAM, justice, &c., appellant. -- Summary proceedings― Jurisdiction of the marine court · The terms "landlord" and "tenant" construed― Leasehold estates defined — Judg ment liens thereon. Summary proceedings under the statute founded on an execution sale may be maintained against the judgment debtor personally, or against any person in possession under him subsequent to the lien of the judg ment (Reversing S. C., ante, 139, and 58 How., 442). Decided March, 1881. APPEAL from a judgment entered on an order of the general term of the supreme court of the first department, affirming an order of the special term granting a perpetual writ of prohibition enjoining Mr. justice MCADAM from continuing a summary proceeding against one Virginia Ierring, founded upon an execution sale against the executors of the estate of The People ex rel. Higgins agt. McAdam. the late judge McCUNN. Upon the return of the summons it was objected that justice McADAM had no jurisdiction because the proceeding (which was commenced before the present sections 2231-2265 of the Code of Civil Procedure went into operation) would lie against the execution debtors only, and not against those who entered under them subsequent to the sale. This objection was overruled by Mr. justice MCADAM, and the matter ordered to proceed at a time then designated. Before the adjourned day Francis Higgins, the receiver of the McCunn estate (who succeeded the executors thereof) procured the alternative writ of prohibition, which was, after argument, made absolute by Mr. justice BEACH, Sitting in the supreme court, special term (opinion of the special term judge, 58 How. Pr., 442). Upon an appeal therefrom, the order was affirmed at the general term (opinion reported, 22 Hun, 559; 60 How. Pr., 139; 11 Weekly Dig., 112) and from the judgment entered on such affirmance, the defendant (justice MoADAM) appealed to the court of appeals. Edward Jacobs and Alfred McIntyre, for appellant. A. H. Joline, for respondent. FOLGER, Ch. J.- Section 28, article 2, title 10, chapter 8, part 3 of the Revised Statutes (vol. 2, page 512) provides that any tenant of premises may be removed therefrom, if they live in the city of New York, by any justice of the marine court. The statutes, in subsequent sections, prescribe the manner in which the removal may be made. There is no question in this case, but that the proceedings had before justice MCADAM were formally in accordance with the statute. The defendant in them, Virginia Herring, was the tenant of the premises, and they lay in New York city. So far, it seems that the justice of the marine court had jurisdiction. But the 28th section (supra), in four subdivisions, limits the general The People ex rel. Higgins agt. McAdam. character of its first declaration, and therein designates the particular cases in which the power to remove may be exercised. The case in hand, if it meets either of those, meets the fourth. That is for the case of a person holding over and continuing in possession of real estate, which shall have been sold by virtue of an execution against such person after a title under such sale shall have been perfected. In the case before us there has been a sale of the premises of which Herring is in possession; the sale was by virtue of an execution, and the title under the sale has been perfected. The execution, however, was not against her. She is not literally the person against whom the execution was issued. If the provisions of the fourth subdivision are to be strictly applied, she is not amenable to them. There have been, however, judicial interpretations of it, which have declared that it may be applied liberally; thus, it has been held, that the proceedings may be had against the tenant of the person against whom the execution issued (Birdsall agt. Phillips, 17 Wend., 464); that the conventional relation of landlord and tenant need not exist between the purchaser at the sheriff's sale and the occupant of the premises, arising from a lease or a compact between them; that the purchaser takes all the rights of the landlord; that there does thereupon arise between the purchaser and the tenant the relation of landlord and tenant; that the statute does not mean a holding over by his own personal act, but that if he do it by agent, servant or tenant at will, he may equally be said to hold over; that the statute is equally applicable to the judgment debtor and all who hold under him under pretense of title acquired posterior to the judgment. In Hallenbeck agt. Garner (20 Wend., 22) the authority of 17 Wendell (supra) is recognized, and that a servant, or agent, or one entering upon the premises under title derived subsequent to the lien of the judgment under which the sale has been made, is amenable to the statute. And in Spraker agt. Cook (16 N. Y., 567) it is declared that by this statute the legislature has applied the designation of tenant to the judg |
