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In the Matter of Pond, &c. agt. Wood, Mayor, &c.
lessen the efficacy of the facts stated in the complaint, or transfer the application made upon the complaint, to an application made upon affidavit.
This application is upon the complaint under the first clause of section 219 of the Code, and entitles the plaintiff to his injunction.
Motion for injunction granted, with $5 costs, without prejudice to defendant renewing motion upon answer, or answer and affirlarits.
In the Matter of the Petition of LOYAL S. Pond for a Writ of
Mandamus, to be directed to FERNANDO Wood, Mayor, &c.
A mandamus should not issue, except when it is necessary to enforce the rights
of the party seeking its aid, and in that class of cases only, where no other
adequate remedy exists. The powers of another tribunal should not be invoked, unless the court having
original jurisdiction should, from want of proper authority, be unable to en
force its own orders or decrees. If an order made by the superior court, directing the comptroller to procure a
warrant to be countersigned by the mayor, was one which the mayor himself was bound to obey, such order can be promptly enforced by the superior court,
or the justice by whom it was made, A mandamus by this court to compel obedience to such order, would be alto
New-York Special Term, Aug., 1855.
CoWLES, Justice. The writ of mandamus should not issue except when it is necessary to enforce the rights of the party
In the Matter of Pond, &c., agt. Wood, Mayor, &c.
seeking its aid, and in that class of cases only, where no other adequate remedy exists.
In this case it is unnecessary to inquire whether the order made by the superior court, directing the comptroller to procure the warrant to be countersigned by the mayor, was one which the mayor himself was bound to obey; nor is it necessary to determine whether an order could properly be made for the payment of moneys due by the corporation of this city, un. til such corporation had itself been made a party to the proceeding. All of those questions the superior court, which made the order, can determine for itself, whenever that question shall arise before that tribunal.
It is sufficient for all the purposes of this motion to say, that that court possesses ample power, by process of attachment, to enforce its own orders. That remedy is open to the relator here, provided the order made by the superior court is one which the mayor was bound to obey. In such case the remedy of the relator is simple, direct, and effective; and being so, the most proper form in which to enforce the rights of the applicant, is the one in which his proceedings have been initiated. The powers of another tribunal should not be invoked, unless the court having original jurisdiction should, from want of proper authority, be unable to enforce its own orders or decrees. Even if this order is to be regarded as the order of the judge at chambers, and not that of the superior court, yet by § 302 of the Code, the judge is vested with full and ample authority to enforce obedience, if obedience is the duty of the mayor.
If, on the other hand, as the respondent contends, the order itself is not binding—a question I leave to be solved by the superior court—then, manifestly, no writ of mandamus should issue from this court.
I base a denial of the motion upon the single ground, that the order, if binding upon the mayor, can be promptly enforced by the court, or judge by whom it was made.
The motion must be denied, with $10 costs.
Campbell agt. Shields.
JAMES CAMPBELL agt. ROBERT SHIELDS.
Where a landlord wilfully evicts his tenant from part of the demised premises,
he can recover no rent subsequently accruing, although the tenant remains in
possession during all the rest of the lease. But if the landlord only commits a trespass on the premises, and does not evict
by taking possession, or permitting a nuisance, &c., the tenant is left to his action for the trespass, and must continue to pay the rent.
New-York Special Term, Nov., 1855.
Motion by defendant to dissolve injunction. ficiently appear in the opinion.
The facts suf
MITCHELL, Justice. The plaintiff is the assignee of the lease of a house and lot of land, No. 512 Greenwich-street, and the defendant the landlord.
Where the landlord wilfully evicts his tenant from part of the demised premises, he can recover no rent subsequently accruing, although the tenant remains in possession during all the rest of the lease. This is sufficiently severe, and is not to be extended. But if the landlord only commits a trespass on the lands, (and does not evict either by actually taking possession of part of the land, and depriving the tenant of it, or by what is called a moral eviction-rendering the place unfit for the tenant to occupy, as by introducing women of ill fame into other parts of the house,) the tenant is left to his action for the trespass, and must continue to pay the rent.
If this complaint be carefully examined to find the facts al. leged, as distinct from conclusions, it will be found to set up only a trespass; and, in connection with the answer, this becomes very clear.
Campbell agt. Shields.
The answer states, that about October, 1854, the owner of the adjoining lot, having commenced to tear down the building thereon, gave notice to the defendant to protect his buildingthe house in question; and that to uphold this building while the other was being torn down, the defendant, with the consent of the plaintiff and of the lessee, entered on the premises and repaired; and that the repairs were absolutely necessary to uphold and preserve the house; and that in consideration of the inconvenience the lessee was put to, he was, by consent, excused from paying the rent due 1st Nov., 1854.
The complaint is, that the defendant evicted the plaintiff from a portion of the house and lot—and then states the eviction)—taking out the whole side of the house, and making the inclosure of the house and rooms considerably less than they were before ; and that he contracted the rear of the premises several inches—and then states the contraction)—taking away a part of the stairs, and leaving them in that condition, and left the chimneys, for a length of time, and the house open-having torn down the chimneys—and authorized the neighbor to run a nuisance into these premises.
The landlord then being warned to protect his house, and being bound to do so, did take down the whole side of the house, that being necessary, and repaired it again; he also took down the chimneys and stairway, and left the chimneys down for some time, and the house open during these repairs; and narrowed the stairway in the rear several inches; and in making his new side-wall, narrowed the inclosure—that is, the rooms. If this were done wrongfully, it was no eviction; it left the tenant in possession of the whole of the demised premises; and if wrongful, it was a trespass for which the landlord must pay damages, but still the tenant must pay the rent.
If the defendant's answer is correct, and it is the most probable, he did nothing unlawful in all this: he was obliged to take down and repair the side-wall, and did no damage except what was necessary for this purpose. If the side-wall is thicker than before, that was with a view to greater strength and security; and if the house is a frame house, the fire-laws Martin agt. Kanouse.
required the new wall to be of brick, and that would necessarily widen the wall and narrow the rooms. If, as the plaintiff suggests, the defendant built the new wall inside of the old boundary, on the allegation of the neighbor, that the old encroached on the neighbor's line, then, if the allegation of title were true, the landlord did no more than the law would compel him to do, and yielded to a paramount title, and the plaintiff can only claim a small reduction of rent. If the landlord were mistaken as to the true boundary, and yielded under that mistake, that is not the wilful eviction for which he is to be punished, in being deprived of rent during the residue of the term.
The allowance of the nuisance, as it is called, is not an eviction; it is at most a trespass.
The injunction granted is dissolved, with $10 costs.
MARTIN agt. KANOUSE.
A judgment in favor of a party, whether for costs only, or for damages and costs,
prima facie, belongs to him. And in order to change this prima facie conclusion of law, a third person in pleading that the judgment belongs to himit being for costs of the attorney, or for any other reason-must state definitely
and certain how and in what manner he is entitled to it. To make a pleading definite and certain, the remedy is by motion, not by de
New-York General Term, Dec., 1855.
This is an appeal from an order of the special term, pronouncing the defendant's answer frivolous.
It appears that Oothers & Blucher obtained a judgment against Kanouse, Blucher died, and Oothers, as the surviving partner, assigned the judgment to the plaintiff. Kanouse also