
    SUPREME COURT.
    The People ex rel. Francis Higgins, as receiver of John H. McCunn, respondent, agt. David McAdam, justice, appellant.
    
      Summary proceedings — Jurisdiction—Prohibition.
    
    The statute permitting summary proceedings founded upon an execution sale, affords the vendee of real estate a summary remedy against the judgment debtor in possession. It was not intended to extend the remedy to those in possession under the judgment debtor or his legal representatives.
    Where the admitted facts take the litigation without the operation of the statute and, consequently, without the jurisdiction of the court, a writ of prohibition is the proper remedy {Affirming S. 0., 59 Sow., 443).
    
      First Department, General Term, November, 1880.
    
      Before Davis, P. J., Brady and Barrett, JJ.
    
    Appeal from an order granting a writ of prohibition to restrain summary proceedings in a landlord and tenant case to recover the possession of certain leasehold property.
    
      Alfred McIntyre, for appellant.
    
      Butler, Stilman & Hubbard, for respondent.
   Per Curiam.

1. The tenant against whom these proceedings were instituted was not “ a person holding over and continuing in possession of real estate which had been sold by virtue of an execution against such person.” Her tenancy was not under McCunn’s executors but under the receiver. Ho execution had been issued against her, nor against the receiver under whom she holds. This receiver did not take under McCunn’s executors, but under the order of this court in certain actions pending therein. Nor was such receiver the servant or agent of the executors; nor was there collusion between the person in actual possession and the persons against whom the execution ran. The magistrate was, therefore, without jurisdiction. Prohibition will lie, because although there was jurisdiction in summary proceedings in general, there was none upon the facts set out in the applicant’s affidavit. It is said that as the magistrate had jurisdiction in summary proceedings generally, he necessarily had jurisdiction to decide whether the case was within the statute. This argument is fallacious. The jurisdiction is special and limited, and the magistrate is strictly confined to the terms of the act. The original application and affidavit must show a ease within the statute before the magistrate has authority even to issue the original summons to show cause. Under any other view these proceedings, which are useful enough if strictly pursued, would become a subject of grave apprehension. Ordinarily ejectment is the natural and appropriate common law remedy to recover the possession of lands, and we should not favor any attempt to effect the purposes of such an action under the forms of these summary proceedings. The object of the statute was to afford the vendee of real estate sold under execution a summary remedy against the judgment debtor in possession. It was not intended further to extend the summary jurisdiction of magistrates in these proceedings.

In this connection the fact should not be lost sight of that these proceedings cannot be stayed, and that there is no redress for the defeated and ejected tenant save restitution after judgment of reversal on certiorari, followed by an action for the damages sustained.

2. The receiver was authorized to institute the present proceedings. It was his right and duty to protect and defend his tenant. As an incident thereto he could institute a proceeding looking to that end.

For these reasons, as well as those assigned by Hr. justice Beach, we think the order should be affirmed, with costs.  