
    Launitz v. Dixon.
    At common law, a certiorari suspended all further proceedings, hy the court, or officer, to which it was issued, and all such subsequent proceedings were erroneous. In the case of summary proceedings, under the statute, to recover the possession of land, the rule has been altered, so far as the proceedings upon the application to the justice, are ooncerned. Hence, when a certiorari is issued, it suspends the effect of the judgment of the justice, in every collateral matter, and in every thing else, except, what remains to be done hy the justice himself. It does not prevent him from issuing his warrant, to dispossess the tenant, but this is all.
    Accordingly, where on summary proceedings, instituted by a landlord, for the removal of a tenant, a warrant was granted, and the proceedings were subsequently removed to the supreme court, by writ of certiorari, and the cause was pending in that court, on the return to the writ: Held, that the effect of the judgment of removal, rendered by the justice, was suspended, during the pendency of the writ, and that it could not be made the foundation of an action, to recover the fractional part of the rent, which had accrued at the time of the issuing of the warrant, nor the expenses of the summary proceedings.
    A judgment for the removal of a tenant, if removed to an appellate court, by certiorari, does not, in a collateral suit, prove the landlord’s right to re-enter, or that the tenancy had ceased.
    In such cases, if a certiorari be issued, it stays the landlord’s action, to recover for rent, or use and occupation, as well as the expenses of the summary proceedings. If issued while the actions are pending, the certiorari suspends the force of the judgment, before the justice, as well as the right to recover expenses.
    Motion to set aside the report of a referee,' on a case made.
    (Before Oakley, Ch. J., Sandfoed and Dveb, J. J.)
    (Nov. 20,
    Nov. 29, 1851.)
    This was an action brought to recover a balance of account, alleged to be due from the defendant-, for the rent of certain premises, in the city of New York, and for marble, sold and delivered to the defendant.
    The complaint set forth :—(1.) That plaintiff furnished warehouse room to the defendant, in premises, situated on the third floor of a building, then located at No. 536 Broadway, in the city of New York, from the 1st February, 1849, to the 1st February, 1850, and that the same was worth $50. (2.) That he furnished certain other rooms, being two garret rooms, on the same floor of said building, to the defendant, at the rate of $100 per year, and that the sum of $5 55, was due for the use of the same from February 1st to February 20th, 1850. (3.) That the plaintiff sold to the defendant, between the 18th of September, 1849, and the 21st of February, 1850, marble work of the value of $105 16. (4.) That by the terms of the letting of the two garret rooms before mentioned, it was ¿greed by and between the plaintiff and the defendant, that the plaintiff should be entitled to possession of the said rooms, on giving the defendant a notice of his intention to build. That he did give the defendant such notice, but that the defendant refused to give up to the plaintiff the possession of said rooms. That the plaintiff applied to the justice of the third district of New York, for process to remove the defendant. That process was granted, and that the costs and expenses of obtaining the same, and which were paid by the plaintiff, amounted to the sum of $31 75. The complaint admitted a payment by the defendant, of $75, and claimed a balance due of $106 16.
    The answer of the defendant, denied that the plaintiff had furnished to him warehouse room, as alleged in the complaint, and that the defendant was indebted to the plaintiff in any amount for the same; and averred that the defendant hired the premises thereinafter mentioned from the plaintiff, with the understanding, that he should have whatever room he might want for the necessary storage, Ac., without additional charge, as he and his partner had used and occupied the same prior to the 1st day of May, 1849. (1.) That defendant hired the said premises, at 536 Broadway, for the full end and term of one year from May 1st, 1849, at the rate of $100 per year, payable quarterly, on the usual quarter days, and that he had regularly paid the rent therefor, according to agreement, and that no rent was due as alleged in complaint. (2.) That the plaintiff had not sold to the defendant, marble work, of the value of $105 16, but of the value of $100 16, only.
    The answer also denied that the plaintiff was to have possession of the premises, on giving notice of his intention to build, and that such notice, as averred in the complaint, was given; and averred that the defendant had caused a writ of certiorari to be issued out of the supreme court, to remove the proceedings before the justice, which writ had been allowed, and that the same was now pending, undetermined, in the supreme court.
    The cause was referred to P. T. Woodbury, Esq., as sole referee, by consent of parties, on the 21th December, 1850. The referee reported in favor of the plaintiff, and his report stated, as facts proved before him, that prior to the commencement of the action, the plaintiff had sold and delivered to the defendant a quantity of marble, at a price agreed upon between the parties; that said marble had been paid for in part, and that on the day of the commencement of this action there remained unpaid on said marble the sum of twenty-four dollars and eleven cents; that from the 1st to the 20th of 21st of February, 1849, ■ the defendant used and occupied the garret rooms belonging to the plaintiff, situated at 536 Broadway, in the city of New York, under a rent agreed upon between the parties of one hundred dollars per annum, and under a further agreement that whenever the plaintiff should notify the defendant to vacate said premises in order that he might remove the building situated upon the same for the purpose of rebuilding, the defendant should then vacate the same ; that the plaintiff did give such notice, and the defendant was finally removed from said premises in the manner hereinafter stated, and that the proportional rent for the period intermediate, February 1st and February 20th aforesaid, was five dollars and fifty-five cents ; that from the 1st of February, 1849, to the 1st of February, 1850, the defendant had the partial use and occupation of a room known as the polishing shop, on the second story of the building there situated at 536 Broadway, New York,, belonging to the plaintiff, and that the use and occupation defendant had of the said rooms was not as appurtenances to the other rooms he rented of the plaintiff in the same building, and was not included in the lease of the same, and that the fair value of such use and occupation was twenty dollars for the period aforesaid; that on or about the 20th day of February, 1850, the defendant was removed from the possession of the two garret rooms hereinbefore mentioned, under certain summary proceedings to obtain possession thereof in favor of the plaintiff, had before the justice of the third district justice’s court of the city of New York, and that the legal disbursements incurred therein by the plaintiff were nine dollars and twenty-five cents. The sums so reported, with interest, amounted to. the sum of $62 33. It appeared in evidence before.the referee, that the summary proceedings before the justice had been removed by certiorari to the supreme court, and were still pending there, as averred in the answer of the defendant. The main question raised before the court, and passed upon by them in their decision, was, as to the right of the plaintiff to recover the rent feom February 1st to February 20th, and the costs of the summary proceedings, while the certiorari was pending in the supreme court.
    
      M. Be Molte, for defendant, argued the following, points :
    The pleadings admit the proceedings to have been removed to the supreme court by certiorari. If removed, the plaintiff could not recover for the reasons stated below.
    The referee erred in ruling “that the claim for disbursements incurred in the summary proceedings, in favor of the plaintiff, to dispossess the defendant, although there was then pending a certiorari on said proceedings in the supreme court,, was a legal cause of action.” (1.) The removal by certiorari, from its nature, keeps the proceedings pending, and the rights and liabilities of the parties as open as though the parties-were still before the court of original jurisdiction. Nothing is changed except the tribunal having jurisdiction (4 Black. Com. 321, 472; 2 Rev. Stats. 607, § 48 to 51, 3d Ed.). (2.) The superior court has no jurisdiction of a suit or proceeding between the same' parties, involving the same subject matter, which is pending in another court; and such objection may be taken by answer (Code, § 144, 147). (3.) At common law a certiorari operates as a stay of proceedings (2 Bac. Ab. Cert. G. & K.). (4.) It still so operates, except when limited by statute (Lynde v. Noble, 20 Johns. R. 82). (5.) The Rev. Stats, do not limit it as regards, the subject matter in controversy. The statute applies simply to the landlord’s right of being placed in possession (2 Rev. Stats. 607, § 48, 3d Ed. Reviser’s notes to 2d Ed., R. S. (vide 3 R. S. 766, § 47, 2d Ed.) Smith v. Moffatt, 1 Bar. S. C. R. 68). The right of the plaintiff to recover his disbursements, is of course subject to the usual restriction, viz.: the ultimate determination of the proceedings (2 Rev. Stats. 607, § 48 to 51; 3d Ed.). (6.) The court will not construe the statute differently.
    
      a. The statute is in derogation of the common law, and is to be construed strictly. (Prouty v. Prouty, 5 How. Pr. R. 93.)
    
      b. The construction contended for, will leave the defendant without a remedy in case the proceedings are ultimately decided in his favor (Vide sections cited supra 2 R. S.).
    c. If it does not destroy the defendant’s rights, such a construction will be highly and unnecessarily inconvenient.
    If the referee held correctly as to the last point, still he was not authorized in finding the sum of $9 25 (2 Rev. Stat. 738, § 56, 3d Ed.; Id. 728, § 36; Id. 343, § 127; Id. 736, § 54. Sess. Laws, 2849, Chap. 193, § 5).
    
      W. Bachard for the plaintiff.
    Tn cases of summary proceedings to recover possession of land, the prevailing party recovers costs, and may bring an action for the recovery thereof, and the proceedings on such application are not stayed by a writ of certiorari, nor any other writ or order (2 R. S. p. 607, secs, 48, 49, 50; Dyett’s Summary Proceedings, p. 51, 104, § 50, 351, 180).
   By the Court.

Sandford, J.

There is no complaint of the first item allowed by the referee, the $24 11 balance of the marble account. As to the $20 allowed for the use and occupation of a part of the room adjoining those described in the plaintiff’s lease to Dixon & Stoney, in 1845, if the question were submitted to us as jurors, we think we should have decided against the plaintiff. The language of the receipt for rent, dated February 2d, 1850, together with the mode of occupying the room during the whole time the defendant was a tenant, goes far to show that it was considered as a part of the demised premises, iind that the words “ except that part,” in the lease dated March 15,1850, were intended to be confined to so much of the room ;as was occupied as a polishing shop, and not to extend to the whole room. But the referee has found, on the evidence, that the occupation by the defendant of a part of this room, was distinct from, and not embraced in the premises demised by the lease in 1845, and the subsequent parol lettings of the same ; and the preponderance of testimony is not such as to warrant us in disturbing his conclusion.

The remaining items allowed by the referee, viz., the rent from February 1st, to February 20th, 1850, and the costs of the summary proceedings to remove the defendant from the premises, depend upon the same question.

The defendant was removed from the premises under the proceedings for that purpose before the justice, but the proceedings were removed to the supreme court by a writ of certiorari, allowed March 9,1850, and the cause is still pending in that court on the return to that writ.

At common law, a certiorari suspended all further proceedings by the court, or officer to which it was issued, and all such subsequent proceedings were erroneous. (Bac. Abr. Certiorari, G. & K; Patchin v. Mayor, &c., of Brooklyn, 13 Wend. 664.) Except in the single particular of an execution, already issued and in the process of being executed, the certiorari suspends entirely the force of the judgment sought to be renewed. This rule has been altered by the statute relative to summary proceedings to recover the possession of land, &c., so far as the proceedings upon the application to the justice are concerned. (2 R. S. 516, § 41.) Except as to these, the common law still prevails. Hence, when a certiorari is duly issued in such a case, it suspends- the effect of the judgment of the justice in every collateral matter, and, indeed, in everything, except what ■ remains to be done by the justice himself upon the application before Mm. It does not prevent the justice from issuing his warrant to dispossess the tenant. He may proceed to judgment and execution,, that isr to such execution of his judgment as the law points out. But this is all. His judgment does not, in a collateral suit,, prove the landlord’s right to re-enter, or that the tenancy has ceased, if it appear that the judgment has been removed to the supreme court by a certiorari.- The same principle applies to a suit by the landlord to recover his expenses incurred before the justice The justice can grant no execution for those costs. They can only be recovered by an action against the tenant. The action for such costs, as well as an action for rent, or use and occupation, up to the date of the dispossession, is not a proceeding on the application before the justice. Both grow out of it, but the justice has nothing to do with either, and they are in no sense proceedings before him, or on the summary application.

To such suits, therefore, the common law rule applies. If a certiorari be issued before they are commenced, they are stayed altogether until the writ is in some manner finally disposed of. If issued while such suits are pending, as the certiorari suspends the force of the judgment before the justice, the landlord’s right to recover his expenses there is also suspended. If the justice's judgment be reversed, he has no right to the expenses ; if it be affirmed, his right to them revives. While the certiorari is pending, the suspended justice’s judgment furnishes to the landlord no evidence of a right to those costs.

So as to the rent for the fraction of a quarter, for which the referee, in this case, reported in favor of the plaintiff. His whole right to sue for that rent before the end of the quarter, rested on the justice’s judgment in the summary proceedings. But the certiorari, while pending, took away the efficacy of that judgment. So far as the right to the fractional rent is concerned, the case stands by reason of the certiorari, as if no such judgment had been given. The plaintiff, therefore, had no evidence to warrant him in suing for the rent until the end of the quarter, that is, until May 1st, 1850, and the referee erred in permitting him to recover for it. The report is equally erroneous as to the expenses before the justice. No right to recover them was shown, or could be shown, while the certiorari was pending.

We must, therefore, reverse the judgment, and set aside the report, unless the plaintiff will consent to reduce his recovery to the amount of the two items first mentioned.  