People ex rel. Levy v. Third District Court , 57 How. Pr. 443 ( 1879 )

Sedgwick, J.

The Bevised Statutes, before the act of 1877, was that any tenant, &c., might be removed, &c., “ by any one of the justices of the district court of the city of New York,” in the manner and case provided. The act (chap. 187, April 28, 1877) did not, in my opinion, repeal this provision or any part of it. It only restrained its general operation. The act of 1877 did not profess to give jurisdiction. No word in it authorized any justice to remove a tenant. It declared that no justice of a district court should have jurisdiction, unless the premises were within his judicial district. The act of -1879 (March 22, chap. 101) restates the provision, for the purpose only of inserting an amendment which had no relation to the provision in question.

Before the act of 1879 the Bevised Statutes, on this point, was the same as after the act was passed. Beiterating it, for the purpose designated, does not show that the legislative intent was to annul the act of. 1877, which did not affect the substance of the amendment.

An extreme but pertinent illustration might be given: Suppose the act of 1879 was, viz., the Bevised Statutes shall read as follows, giving the Bevised Statutes, excepting the word subtenant, instead of undertenant. There would be the same reason as now for insisting that the provision in question was a new enactment had from the meaning of the act of 1877.

There would be no doubt on this subject, if the legislature had said, between such and such words of the Bevised Statutes, the amendment, as given in the act of 1879, shall be inserted.

The act of 1879 said, section 28, &c., of the Bevised Statutes shall read: “ Any tenant, &c., may be removed by any one of the justices of the district court of the city of New York.” What was the meaning of these words? It is not different from the meaning of the same words with the same limitation that were in the Bevised Statutes before the act.

I, therefore, am of opinion that the act of 1877 is in full force. I, yesterday, made a mistake in construing the second proviso of the first section of that act. It does not refer to a proceeding that concerns premises out of the judicial district.

It follows that the justice has no jurisdiction of the proceeding.

Note.— In the case of James Smith agt. John McDonough amd, others, the premises were situated in the seventh district of the city of Hew York, and the proceedings were instituted before Frederick G. Gedney, justice, in the eighth district, on the 1st day of May, 1879. McDonough demanded a jury, and the case was tried before William H. Kelly, justice (acting in the place of judge Gedney), and a jury. The jury rendered a verdict in favor of the landlord, but justice Kelly refused to sign the warrant upon the ground that the premises were not situated in that district, the eighth.

An application was made to judge Donohoe for a mandamus to compel justice Kelly to sign the warrant to dispossess the tenant, and, after argument, judge Donohoe granted the motion that a mandamus should issue, thereby holding adversely to the decision of judge Sedgwick. [Ed.