THE PEOPLE, ex rel., BEAN against RUSSELL

THE PEOPLE, ex rel., BEAN against RUSSELL. Supreme Court, First District; Special Term, February, 1867. Writ of Prohibition.—Summary Proceedings. The court will not iásue a writ of prohibition to restrain a magistrate from entertaining a summary proceeding to remove a tenant, merely because the tenant has a clear defence to the proceeding. If the magistrate has jurisdiction of the proceeding, he must be allowed to hear and decide it. If he decides erroneously upon the merits, the remedy is by certiorari, or action for damages. The presumption of law is, that a judicial officer will decide a question submitted to him, correctly. Motion for a writ of prohibition. The relator, Mary G. Bean, apprehending that she might be dispossessed from leased premises, as the result of summary proceedings instituted under the statute, before the relator, as City Judge of the city of New York, now applied for a writ of prohibition to restrain him from entertaining such proceedings. [MAJORITY — Leonard, J.] Leonard, J. It is entirely clear, that there is no condition' or limitation to the grant of the term. The term granted is one year. It is well settled, that a condition contained in the covenants of a lease, and not embraced in the term named in • the grant, does not affect the continuance of the term; but the landlord must, in such case, resort to his action for damages against the tenant, on a breach of his agreement. But, conceding these positions taken by the counsel for the relator, it does not follow that she is entitled to the writ of prohibition. Although it is plain that the city judge cannot, in conformity with law, decide in favor of the landlord, he is not thereby deprived of jurisdiction over the proceeding. The question of jurisdiction is settled by the nature of the proceeding, and not by the terms of the contract. The proceeding is by the landlord, for the summary ejection of a tenant, holding over, as it is alleged, after the termination of the term. The city judge has jurisdiction to hear that class of proceedings. The claim of the landlord being denied, he is to try the question. The fact, that the term has not expired, does not appear until the tenant has produced her lease in evidence. It is sought to prohibit the city judge from adjudging upon the question of the termination or expiration of the term. It, cannot be assumed that the city judge will pronounce an erroneous judgment. The presumption of law is, that he will decide correctly. The tenant must, I think, wait for the decision; and, if erroneous, she has her remedy, by certiorari, to procure a reversal; and also an action for damages, if she should be illegally dispossessed. The application is denied, with costs.