Haight agt. Holcomb.

garded as the equitable asignee of the judgment to the extent of his claim for services. The mode in which the extent of his interest is ascertained is changed, but the grounds upon which the courts act in protecting that interest, are unchanged. (See Sherwood agt. The Buffulo and New-York City Railroad Company, 12 How. 136; Sweet agt. Bartlett, 4 Sund. 661; Ward agt. Wordsworth, 9 How. 16; 1 E. D. Smith, 598.) In the latter case, the question directly before the court was, whether the lien of the attorney for his services had been abolished by the Code? The whole subject has received at the hands of Judge DALY, a more complete and thorough examination than I have met with elsewhere. The opinion itself is a fine specimen of juridical learning and sound argument. "All that the Code has done," says the learned judge, "has been to abolish the fee bill, and take away all restraints upon attorneys making agreements with their clients for their services. It has left the attorney to agree with his client for a greater or less sum than is given to the party, by way of indemnity for his expenses; but I cannot see how this legislation can be regarded as abolishing or affecting the attorney's lien. He did not derive it from these statutes. It existed long before any fee bill was enacted. The right to a lien for services rendered is one thing, and the measure by which the value of these services is ascertained, is another. The latter has been the subject of statutory enactment, the former has not. The statute has not interfered with the right of lien, except to limit the extent of it; and when that limitation is removed by the repeal of all statutes regulating the fees of attorneys, the right of lien, upon the authority of adjudged cases, stands precisely as it stood before."

My conclusion in this case is, that Mr. Olney is entitled to a lien upon the judgment for the amount due him for services. rendered in the prosecution of the suit, whether as attorney or counsel, and that notwithstanding the settlement between the parties, as the equitable assignee of the judgment to the extent of the amount due him, has a right to enforce payment by execution.

Duigan agt. Hogan.

Before making a final order upon the motion, and for the purpose of ascertaining the amount justly due to the attorney for his services as attorney and counsel in the action, I shall direct a reference to inquire and report upon that fact. An order will be entered appointing Rufus H. King, Esq., a referee for that purpose, and directing that the further hearing of the motion stand over until the coming in of the report.

SUPERIOR COURT.

JAMES T. DUIGAN, respondent agt. ROBERT HOGAN, appellant.

By the terms of section 47 of title 10, chapter 8, part 3 of the Revised Statutes, in an application for the dispossession of a tenant, upon certain specified allegations, the landlord may require that the tenant be summarily removed. The tenant may interpose certain specific grounds of resistance. The issues made between them shall be tried by a jury. Upon a determination in favor of the landlord, he shall be put in possession; and neither by writ of certiorari, (although the proceedings may be reviewed by certiorari,) nor by any other writ or order of any court or officer, (by injunction or otherwise,) shall the proceedings be stayed.

There is no inconsistency between section 219 of the Code and the said 47th sec

tion of the Revised Statutes. The Code provides, that where a case is made upon which, by existing laws, the plaintiff will be entitled to an injunction, he may have an injunction pendente lite. And by the 47th section of the Revised Statutes, the court are in substance forbidden to grant an injunction staying the proceedings arising under that act.

In this case, it appeared that a warrant of dispossession had been issued in favor of the landlord against the tenant by the magistrate after a trial by jury, on proceedings instituted by the tenant, and a judgment in the landlord's favor. The tenant brought his action against the landlord, and in his complaint prayed that the performance of the covenant to repair be adjudged a condition precedent to the defendant's right to rent, or to institute proceedings to dispossess; that the expenses to which the tenant had been subjected, be adjudged payment of the rent; and that he have judgment for the damages sustained by the landlord's neglect to repair; that the landlord be directed to put the premises in repair, &c.; and that in the meantime the landlord be restrained by injunction from taking any warrant to dispossess the plaintiff, &c.

Duigan agt. Hogan.

Held, that the plaintiff had mistaken his remedy; he should have paid his rent, and if he had a just claim against the defendant, sue and collect it; there was nothing new in this course.

General Term, May, 1858.

Before BOSWORTH, HOFFMAN, SLOSSON, WOODRUFF and PIERREPONT, Justices.

APPEAL from order at special term granting an injunction. The complaint of the plaintiff, fortified by affidavits on his behalf, represented in substance, that the defendant leased thirteen dwelling-houses, then out of repair, to the plaintiff, and covenanted that he would put them in complete repair; that the defendant neglected and refused to make such repairs, and that the plaintiff had sustained great damage thereby, and had been himself put to expense in making repairs that were necessary; that the making of such repairs was a condition precedent to the defendant's right to claim any rent; that the plaintiff was entitled to apply such expenses on account of the rent, and to be allowed such damages in extinguishment of the rent which had accrued; that the defendant, nevertheless, upon the allegation that the rent for the quarter ending the first of April last, was in arrear and unpaid, had instituted proceedings under the act authorizing summary proceedings for the dispossession of a tenant holding over after non-payment of rent, before a magistrate, who refused to permit the said matters to be given in evidence, and on the trial gave judg ment that the plaintiff be dispossessed; and the defendant threatens to apply for, and the justice threatens to issue a warrant to put the landlord in possession of the demised premises. The complaint prays that the performance of the covenant to repair be adjudged a condition precedent to the defendant's right to rent, or to institute proceedings to dispossess; that the expenses to which the plaintiff has been subjected, be adjudged payment of the rent, and that he have judgment for the damages sustained by the defendant's neglect to repair; that the defendant be directed by the judgment to put the premises in repair, &c.; and that in the meantime the defendant be

Duigan agt. Hogan.

restrained by injunction, from taking any warrant to dispossess the plaintiff, &c.

The answer of the defendant showed that a warrant for the dispossession of the plaintiff had been actually issued to put the defendant in the possession of the demised premises, and was already in the hands of the constable for execution; that it was issued by the magistrate after a trial by jury, in the proceedings instituted by the defendant, and after a full hearing upon the matters in controversy in those proceedings, and a judgment in the defendant's favor therein.

The answer further denied the several allegations in the complaint, upon which the claim of the plaintiff to be allowed for expenses and damages, by reason of the alleged want of repairs was founded; avers that the defendant performed his agreement by putting the premises in repair according to the terms of the lease, &c. The answer was also corroborated by affidavits annexed, on behalf of the defendant.

Upon an order to show cause, an order was made at special term, that upon condition that the plaintiff deposit the amount of rent in arrear, to abide the event of this action, with a further amount to cover any costs which may be awarded to the defendant, the defendant be enjoined from issuing or serving any warrant to dispossess the plaintiff, or taking any other proceedings to dispossess him of the demised premises. From this order the defendant appealed to the general

term.

NELSON SMITH, for appellant.

JOHN W. ASHMEAD, for respondent.

By the court-WOODRUFF, Justice. By the plain terms of the 47th section, [now 48th section,] of title tenth of chapter 8th, part 3d of the Revised Statutes, proceedings on an application for the dispossession of a tenant under that title, may not be stayed by the writ or order of any court or officer.

The legislature, in granting the remedy furnished by that title, have prescribed with entire precision, what allegations

Duigan agt. Hogan.

must be made on behalf of the landlord, and what issues the tenant shall be permitted to take and submit to the determina tion of the jury. If those issues are found by the jury against the tenant, the magistrate is imperatively required to issue his warrant to put the landlord in possession.

It is wholly unnecessary for us to inquire what considerations induced the legislature to give the landlords this summary mode of obtaining possession of demised premises, or why they have not enlarged the grounds of resistance or defence which the tenant might interpose to defeat the application. It is enough that it is so enacted, and when the legislature have given a specific defence, and have allowed no other, it is not for any court to say that although no fraud has been practiced, and the tenant has had all the benefit of a fair trial, which the statute has provided for him, there are yet other defences, which had the legislature permitted him to use them, might or ought to have availed him, and upon such conclusion to repeal the statute, and restrain the landlord of his express statute redress.

And again, the statute has prescribed a specific mode of reviewing the proceedings had before the magistrate by certiorari to the supreme court, but their intention that the parties should be permitted to act on the presumption that a determination in favor of the landlord, is according to the right of the matter, and their purpose to make the proceedings in fact what they are in name, summary, is shown in their declaring that the proceedings to dispossess shall not be stayed by such certiorari. No allegation of error shall, therefore, prevent the execution of the warrant, even while a review is taking place which may vacate the whole proceedings.

To this is then added the provision for the recovery of damages by the tenant, by reason of the proceedings, in case they shall be reversed or quashed by the supreme court. And finally, no writ or order of any court or officer, shall stay or suspend the proceedings thus authorized. The whole scheme of the statute is this: Upon certain specified allegations, the landlord may require that the tenant be summarily removed.