CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF NEW YORK, IN FEBRUARY TERM, 1824, IN THE FORTY-EIGHTH YEAR OF OUR INDEPENDENCE. SCHERMERHORN and CLUTE against MILLER and wife. Right of tenant by the cursold on execu tesy initiate tion. By the seisin of the wife undivided third part of certain premi. ses, and the in fee, of one IN partition. Schermerhorn and Clute, and Maria the wife of Miller, were seised in fee as tenants in common in equal shares of a house and lot in the city of Schenectady. Miller had issue by his wife, born alive. Proceedings were then commenced in partition, and this Court ordered a sale of the premises by the commissioners pursuant to the act, (1 R. L. 510, s. 5,) and on the 25th day of December, 1823, the premises were sold to Resolved Given, for $344 50. Before this, on the 26th July, 1823, Given had purchased all the alive, the husinterest of Miller, at a Sheriff's sale upon execution, and band became tenant by the taken a certificate as required by statute, (sess. 43, ch. 184, curtesy initis. 1.) And now, (on proof, by affidavit, that notice of the ate then his motion had been given to Miller,) birth of a child interest was sold to R. G. tion then the whole premises were sold to R. G. under the statute of partition. On application by R. G. before the expiration of fifteen months from the first sale, the court ordered one-third of the proceeds of the sale to be put at interest by the clerk, to be disposed of by the court, at the expiration of the fifteen months, according to the rights of the parties at that time. ALBANY, Philips V. Brainard. A. C. Paige, moved for a rule, that the commissioners pay one-third of the $344 50 to the Clerk, to be put at interest during the life of Miller, for the benefit of Given, the purchaser. Curia. This application is warranted by the 14th section for the act for the partition of lands. (1 R. L. 513.) By the marriage and birth of the child, Miller became tenant by the curtesy initiate; and by the sale upon the execution, Given succeeded to his rights, and would be entitled, under the statute of partition, to the interest during Miller's life; but the period for redemption has not expired, and we cannot grant the rule as applied for. Let one-third of the proceeds of the sale by the commissioners be paid to the Clerk and be put at interest, which we will dispose of, on further application, when the period for redemption has expired, according to the rights of the parties at that time. Rule accordingly. PHILIPS against BRAINARD. It is not essen- J. A. SPENCER, moved to set aside a writ of certiorari to tial, that affia Justice's Court. The affidavit, on which the certiorari davit for a certiorari to a jus- was founded, detailed the facts so as to exhibit the errors retice's court, state the ver- lied upon, but omitted to state the verdict or judgment. The diet or judg- jurat was dated August 9th, 1823, and on the 4th November The omission thereafter the defendant below made another affidavit stamay be supplied by an affi- ting the verdict and judgment, and the certiorari was laid davit made af- before the Hon. N. WILLIAMS, Circuit Judge, and alter the thirty lowed on that day. Judgment was, in fact, rendered July 11, ment. days. The 90 days, 1823. within which the affidavit is Spencer made two points: 1. That the affidavit showing to be laid be- the verdict and judgment, though of the substance of the fore the judge for allowance affidavit on which the certiorari was allowed, was not made are computed from the time within 30 days; and 2. That the affidavit was not laid beof making the fore the Circuit Judge within 90 days after the judgment. He affidavit. cited Dickson v. Selye, (6 John. Rep. 326,) and Clark v. Lawrence, (1 Cowen, 48,) and 1 R. L. 396. J. Platt, contra, said, the verdict and judgment are not a material part of the proceedings. The 17th section of the act, (1 R. L. 396,) provides, that the party applying for the certiorari shall, within 30 days after the judgment, make affidavit, satisfying the officer who allows the writ, that there is reasonable cause for granting it, for error in the judgment, which shall be specified in the affidavit; and within 90 days thereafter cause the affidavit to be presented to the officer. Where the affidavit discloses material, errors in the pleadings or proofs, the legislature never could have intended that the mere formal statement of the verdict or judgment should be essential. There is no use in such a statement, The very application for a certiorari is an averment that there is a judgment of some sort. If at all material the 6th of Johnson's Reports, cited on the other side, presents a class of cases, in which the present is included, allowing a supplemental affidavit, to supply the defect, after the thirty days. The 90 days are to be computed from the time of taking the affidavit-not the rendition of the judgment. Curia. We are clearly with you that the affidavit was presented to the Judge in proper season. The only question is, whether the supplemental affidavit was admissible. Spencer, in reply. By the statute, the officer allowing the certiorari is to be satisfied by affidavit showing for cause that there is error in the judgment. These are the very terms of the statute. The affidavit must necessarily show a judgment, before it can point out the errors which it contains. The judgment is a part of the merits on which the writ is founded. Dickson v. Selye settles this question. The Court say, in that case, that every thing relating to the merits must be stated in the affidavit which is made within the 30 days. Curia. The only question is, whether the Judge was warranted in receiving the supplemental affidavit. We think the mere omission to state the judgment might be supplied ALBANY, Feb. 1824. Phillps V. Brainard. Feb. 1823. ALBANY, by an affidavit made after the 30 days. There was no error complained of in the judgment itself. The party stated all which he relied upon for error within the 30 days, which was a substantial compliance with the statute. Jackson V. Lytle. Motion denied. The lessor in ejectment is not bound, of Form of a in common, leave to enter into it. JACKSON, ex dem. PRINDLE and PRINDLE, against STILES, THE defendant made an affidavit thus: "That no actual ouster of the lessors of the above plaintiff, or either of them, course, to en- has been committed by this deponent; and that he, this deter into special consent rule, ponent, is advised by his counsel, and verily believes truly, but only on that this ejectment may involve a question between tenants application to the court. in common ;" and his attorneys, instead of the common conspecial consent sent rule, drew up a special one, which after proceeding in rule by tenant the usual form to the words, "plead thereto not guilty," ran and of rule for thus: "And upon the trial of the issue confess lease and entry, and also ouster of the nominal plaintiff, in case an actual ouster of the plaintiff's lessors, by the defendant, shall be proved at the trial, but not otherwise, and insist upon the title and such actual ouster only; otherwise let judgment be entered for the plaintiff against the now defendant John Stiles, by default; and if upon the trial of the said issue, the said David (the tenant,) shall not confess lease and entry, and also ouster upon the condition aforesaid, whereby the plaintiff shall not be able further to prosecute his bill against the said David, then no costs shall be allowed for not further prosecuting the same, but the said David shall pay costs to the said plaintiff in that case to be taxed. And it is further ordered, that if upon the trial of the said issue a verdict shall be given for the said David, or it shall happen that the plaintiff shall not further prosecute his said bill, for any other cause than for not confessing lease and entry and also ouster subject to the condition aforesaid, then," &c. The defendant's attorney signed this special consent rule with a duplicate, and tendered it to the plaintiff's attorney, requesting him to join, at the same time delivering to him a copy of the above affidavit, and showing to him the original. The plaintiff's attorney refused to join in the rule. Willard, now moved for leave to enter into a special consent rule as above drawn. He cited Adams on Ejectment, 236; Jackson v. Denniston, (4 John. Rep. 312) Langendyck et ux. v. Burhans, (11 John. 461,) 2 Archbold, 47. He said the lessors of the plaintiff ought also to pay the costs of this motion for not accepting the tenant's offer in the first instance. S. Stevens, contra, cited Oates v. Brydon, (3 Burr. 1897,) Jackson v. Lyons, (18 John. 398,) and 7 Modern Rep. 39, per Holt, Ch. J. But we Curia. If the plaintiff was bound to accept the special consent rule, he doubtless ought to pay costs. think he was not bound to do this. Entering into a special consent rule is not a matter of course, but should be on a special application to the Court; especially where the affidavit is so general and loose as the one which was served upon the plaintiff's attorney. We grant the application, without costs. The following rule was entered: ' "On, &c. ORDERED, that David L. Lytle, the tenant in possession of the premises in the declaration of ejectment mentioned, have leave to enter into a special consent rule, requiring him to confess lease and entry at the trial, but not ouster also, unless an actual ouster of the plaintiff's lessors, or one of them, by the said David, shall be proved." ALBANY, Jackson V. Lytle. |