
    SUPREME COURT.
    The People ex rel. Mary Ann Jackson agt. David McAdam, justice, &c.
    
      Bamma/ry proceedings commenced before one justice—How continued before another — Code of CimL Procedure, sections 26, 52 and 53.
    Summary proceedings under the statutes to recover the possession of lands, &c., commenced before one marine court justice may be continued before another by consent of the parties.
    
      Special Term, October 5, 1880.
    S. 0. Welch, as landlord, commenced summary proceedings under the statute, before chief justice Shea of the ETew York marine court, to dispossess Mary Ann Jackson, as an overholding tenant, from the premises 2128 Third avenue. The proceedings, after several adjournments, were, by the written consent of the parties, continued before Mr. justice MoAdam, who tried the proceeding and finally filed an opinion ordering judgment for the landlord.
    
      Mrs. Jackson thereupon obtained from the supreme court ■ an alternative writ of prohibition enjoining judge McAdam from issuing a warrant or proceeding further in the matter, upon the ground that he had no power to continue the proceeding.
    The hearing was had upon the motion to make the writ absolute.
    
      Geo. P. Avery and O. J. Hockstader, for relator,
    claimed that consent did not confer jurisdiction, and cited Benjamin agt. Benjamin (5 N. Y., 383).
    
      H. M. Helm, for S. 0. Welch, landlord.
    
      David McAdam, the justice, in person,
    cited sections 26, 52 and 53 of the Code of Civil Procedure (applicable tos the marine court as a court of record), permitting any special proceeding instituted before one justice of the court to be continued before any other justice thereof, and also cited McGregor agt. Comstock (16 Barb., at p. 427) and Dresser agt. Van Pelt (15 How. Pr., 19), and contended that all questions as to jurisdiction was put at rest by the written consent of the parties; that having jurisdiction of the subject matter, consent gave him jurisdiction over the parties, citing Cowen’s Treatise [Kingsley’s 5th ed.] sec. 20; McCormick agt. The Pennsylvania Central Railroad Company (49 N. Y., 303). He claimed that the case of Benjamin agt. Benjamin (5 N. Y., 383) was inapplicable because the statute in force at that time provided that if the tenant filed a counter affidavit, the matters controverted “'must be t/ried by a ju/ry ” (2 R. S. [2d ed.], p. 423, sec. 34). In other words, that the justice should not try the issue. The matters were controverted and the justice, in that case, instead of trying the issues by a jury as required by statute, tried them himself. The court, therefore, held that he had no powers and that as the statute did not give him jurisdiction, consent could not confer it. Whereas, Under the present statute, justice McAdam was authorized to try this or any other summary proceeding without the aid of a jury,-and that the distinction between the two cases was, therefore, marked and apparent. The conduct of the relator’s counsel in signing a stipulation which they intended to be binding only in case the justice decided in favor of their client was condemned, as not only trifling with a confiding adversary but with the court itself.
   Lawrence, J.

I am of opinion that this writ ought to be dismissed, and I refer to the points presented by the learned justice of the marine court with approval.

Writ dismissed.  