
    (81 Hun, 376.)
    SKINNER et al. v. HANNAN, Sheriff, et al.
    (Supreme Court, General Term, Fifth Department.
    November 13, 1894.)
    1. Ejectment—Execution—Validity.
    An execution directing the sheriff to put plaintiff in possession of the whole premises, issued on a judgment in favor of plaintiff for an undivided interest in such premises, is irregular, and may be set aside.
    2. Same—Restitution—Inherent Power of Supreme Court.
    Where plaintiff is put in possession under an execution which is after-wards set aside for irregularity, it is within tne inherent power of the supreme court, as court of equity, to oruer restitution to defendant, though neither the Code of Civil Procedure nor the rules of court provided for such relief.
    Appeal from special term, Monroe county.
    Action by Frederick W. Skinner and George W. Skinner against George W. Hannan, as sheriff of Monroe county, and Frederick Odenbach. From an order vacating a preliminary injunction granted in the action by the special county judge, and directing the sheriff to execute a special term order theretofore made in an action wherein one Falding W. Skinner was plaintiff and the defendant Odenbach was defendant, plaintiffs appeal. Modified.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    John Van Voorhis, for appellants.
    Edward Harris, for respondents.
   LEWIS, J.

An action was brought in this court by one Falding W. Skinner against the defendant Odenbach to recover the possession of the undivided two-fifths of a parcel of land in the county of Monroe, upon which the defendant had constructed an hotel. The action was duly referred, and the referee made his report in favor of the plaintiff. Immediately' upon the receipt of the report, and without notice to the defendant, the plaintiff caused to be entered a judgment in said action adjudging that he was entitled to the possession of an undivided two-fifths of said premises; and he at once caused to be issued, and directed to the sheriff of Monroe county, an execution directing him to put the plaintiff into possession of the whole of said premises. The judgment was entered and the execution issued on the 3d day of May, 1894. The sheriff, armed with this process, assumed to and did remove the defendant from the premises, and placed the plaintiff in said execution in possession thereof; leaving, however, the furniture of the defendant in the hotel. The plaintiffs in this action, claiming to be the owners of an undivided two-fifths of the said property, accompanied the sheriff and the plaintiff Falding W. Skinner to the premises, and entered thereon in company with the sheriff, and thereupon asserted and claimed that they were in lawful possession, to the exclusion of the defendant As soon as Odenbach learned of the entry of the judgment, he caused an appeal to be taken therefrom, and gave the undertaking required in such cases, with sufficient sureties, and, upon due notice, obtained an order of the special term vacating and setting aside said execution, and directing that the plaintiff, his agents- and servants, and each and every person, other than the defendant, who may have taken or who may be in possession of said premises, or any part thereof, to immediately vacate the same, and permit the defendant to occupy them unmolested pending the appeal-taken to the general term, and restrained the sheriff from taking further proceedings under the execution pending such appeal, and directed him forthwith to reinstate the defendant in possession of the premises, and remove therefrom each and every person, other than the defendant, who might be in possession of the same, or any part thereof. An appeal was taken by the plaintiff from said order,, but in no manner was the execution thereof stayed. The defendant sought to regain possession of the property under this order. The-plaintiffs in this action still remained in the hotel, and refused to surrender possession thereof; and thereupon they commenced this action to restrain the defendants from, in any manner, attempting to regain possession of the property, and obtained from the special county judge of Monroe county an order in said action restraining-the defendants or their agents from, in any manner, interfering with the plaintiffs’ possession of the premises. At a special term of this court, held in connection with a circuit in the county of Monroe, an order was granted, upon due notice, vacating and setting aside said order made by said special county judge, and from the-order thus made this appeal was- taken. The order further directed the sheriff to fully execute an order theretofore granted in the ejectment action, and restrained the plaintiffs and their attorneys from,, in any manner, interfering with the execution of that order.

The principal question presented by this appeal is whether the-court had the power to include the provision in said order relating to-the dispossessing of the plaintiffs in this action. The order was granted upon the return of an order to show cause, which recited that it was granted upon the affidavits of the defendant r-l his counsel, Edward Harris, and all the papers and proceedings reierred to in the affidavit, both in this action and those used upon the motion in the ejectment action. It was stated in the affidavit of the defendant that the only possession the plaintiffs obtained of the premises they got by means of the execution aforesaid, and by the acts of the sheriff thereunder. This was not denied by the plaintiffs’ affidavit. The court had the right to assume from these facts that the plaintiffs' possession was obtained by their accompanying the sheriff when he went with the execution to place the plaintiff therein in possession of the premises, and they entered the premises by the consent of the sheriff, and under his protection. The defendant, being in possession of the property, claiming to be the owner thereof, was entitled to remain, notwithstanding the judgment, for that, as we have seen, was for but the undivided two-fifths of the premises. The execution was irregular in so far as it directed the sheriff to put the plaintiff in possession of the entire property. While, as joint owner with the defendant, he had the right to enter upon the possession of the property by virtue of his judgment, the defendant had an equal right to the possession. The defendant having been unlawfully deprived of the possession of the premises by an officer of the court, who had assumed to act under a process of the court which was thereafter set aside, so much of the order as directed the sheriff to reinstate the plaintiff in the possession of the property was unquestionably proper. It would be strange, indeed, if a court was powerless to restore to the defendant that which he had been deprived of in such manner. Had his undertaldng been given before the sheriff had placed the plaintiff in possession of the property, he would have been entitled to retain possession during the pendency of the appeal. Code Civ. Proc. § 1331. It may be true that there is no provision of the Code, or rule of court, expressly providing for the granting of the order for restoring possession to the defendant, but it does not follow that the court had no power or jurisdiction to grant the' order. All the practice is not contained in the Code and rules. The court possesses inherent power to adopt a practice or grant a remedy to meet the exigencies of a particular case, and thus give effect to the provision of the Code. Stricker v. Wakeman, 13 Abb. Pr. 85. The common-law and chancery practice is not abolished. Insurance Co. v. Bigler, 79 N. Y. 571; Granger v. Craig, 85 N. Y. 619; Hastings v. McKinley, 8 How. Pr. 175. Section 1311 of the Code provides for the discharge of a levy on personal property. Where a judgment is set aside for any reason, the court will award restitution, under the common-law practice. Adams, Ej. § 225, and notes. The court of chancery assumed the power to supersede executions and discharge levies, and restore property to the appellant. Clark v. Clark, 7 Paige, 707. In the latter case the defendant had appealed, and given an undertaking, but on account of an informality it did not stay the execution, and the plaintiff issued .an execution, and levied; and upon the bond being perfected the court of chancery superseded the levy, and directed the sheriff to restore the property to the plaintiff, and this was done in the absence of any express provision of the statute or rules authorizing it, the court assuming the right under its equitable power over its own process.

The supreme court now possesses all the powers formerly exercised by the old supreme court and the court of chancery. Section 1311 ■of the Code does not confer any new powers upon the court, considered- as a court of equity; hence, no argument can be derived from it that it impliedly prohibits the court from exercising a similar power in respect to land. Instances are numerous where the courts have applied equitable principles and rules to purely legal actions, and the fact that the comm°”-law courts disclaim the power to act in such ■cases is no reason why the court is prevented from exercising its equity powers.

The plaintiffs in this action having obtained possession in the manner they did, and, in effect, forcibly ejecting the defendant from the possession of the property, illegally assuming to avail themselves of the authority of a process which gave no such authority, the special term, having jurisdiction of the parties, did not, we think, exceed its ■equitable powers when it directed the sheriff to reinstate the defendant in the possession of the property, and remove the plaintiffs therefrom. Courts of equity, in exercising their equity jurisdiction over the executions of writs of possession, sometimes award a writ of restitution where a defendant, or even a stranger, has been wrongfully evicted under a writ. Sedg. & W. Tr. Title Land, § 60. The writ of assistance is the equitable equivalent of the common-law writ of ejectment. Id. 548. The courts of general jurisdiction have an inherent supervisory power over their process, and may quash, stay, or set aside an execution whenever it is necessary to prevent or correct abuse thereof, according to the justice or equity of each particular case. 7 Am. & Eng. Enc. Law, 148. When the process of the court has been abused, and no innocent party has obtained rights under it, the court, in setting it aside, may restore what has been wrongfully seized thereunder. Campau v. Coats, 17 Mich. 235. In this case, however, judgment was set aside. The same doctrine was held in Keith v. Wilson, 3 Metc. (Ky.) 204.

While we have no hesitation in holding that the order, so far as it set aside the injunction order, and directed the sheriff to reinstate the defendant in possession of the property, was properly granted, it is not so clear that the court had power to direct the removal from the premises of the plaintiffs. Entertaining the motion and granting the order at a special term held in connection with a circuit was a matter in the discretion of the court. Falding W. Skinner not being a party to the action in which the order appealed from was granted, the court did not have jurisdiction to direct his removal. The order appealed from should be so modified as to limit its operations to the vacation of the injunction, and the restitution of the defendant to the possession of the undivided three-fifths of the premises; and, as so modified, it should be affirmed, without cost of the appeal to either party. All concur.  