The present injunction was granted upon two grounds : First. That only the street and number (omitting the ward) were specified in the landlord's affidavit. Second. That furniture was included in the lease.
At the outset it is apparent that these questions could, and should properly, have been raised by certiorari. The statute expressly forbids any court or officer by any writ or order from staying or suspending such proceedings. There are an exceedingly limited class of cases where for fraud, surprise, or undue advantage, in the actual conduct of the proceedings., courts of equity have interfered. But the proceedings in the case at bar were entirely regular, the tenant had every proper opportunity of being heard, and the .present action is simply an irregular attempt to review the rulings of the justice.
It is insisted that the justice was without jurisdiction. If that were so it should have been proved, as a matter of fact, that the premises were not situated in either the nineteenth or the twenty-second ward. The absence of an affirmative statement on that head, in. the landlord's affidavit, is no ground for what in substance, if not in form, is a writ of prohibition. Overruled ■ objections to the preliminary affidavit can only be reviewed by certiorari. Where, in truth, the subject-matter is not within the justice’s jurisdiction, that fact is the gravamen of the complaint and should be affirmatively averred and established. It is proper, however, to say, that the courts will take judicial notice of the statute cre'atmg these wards, and, doing so, we find the premises in question within their boundaries.
What has been said upon the subject of jurisdiction applies equally to the point with regard to the furniture. But we have no doubt of the correctness of the justice’s ruling. “ Rent,” as defined by Bouvier and other writers, “is a return or compensa*315tion for tbe possession of some corporeal inheritance and is a profit issuing out of lands or tenements in return for their use.” (See too Hilliard on Real Property, 227; Co. Littleton, 141, c ; 2 Black., 42, n. 53 [Wend. ed.])
The furniture was but an incident. As was said by Bockes, J., in Fay v. Holloran (35 Barb., 297), “rent cannot be reserved out of chattels personal. If such chattels are demised with land, at an entire rent, the rent issues out of the land only.” (See also, 2 Platt on Leases, 85; Archibald, Land and Ten. Marg., 106; Newman v. Anderton, 2 Bos. & P. [N. S.], 224.)
In the latter case it was hold that a landlord is entitled to distrain for the rent of ready furnished lodgings, Mansfield, Ch. J., observing that: “It must occur constantly that the value of demised premises is increased by the goods upon the premises, and yet the rent reserved still continues to issue out of the house or land and not out of the goods; for rent cannot issue out of goods.” So, the lessor may declare as on a demise of the land or house without noticing the goods. (2 Platt on Leases, 85; and cases cited.)
Were this otherwise, the statute would be practically valueless. If fully furnished houses are not within its provisions, neither are the partially furnished. And so on, whenever the slightest element of personalty enters into the rental, the statute becomes inapplicable; e. g., if gas fixtures are included or a portable heater or portable washtubs.
This contention proceeds upon the idea, that where the rent of premises and the hire of furniture are mingled, there can be no apportionment. The fallacy of this reasoning becomes apparent, when we consider the legal quality of rent and the rule that it issues solely out of the land. There is, therefore, no question of apportionment and consequently no such practical inconvenience as the plaintiff suggests.
Upon this latter branch of the case we have been assisted by, and have substantially followed and adopted a MSS. opinion of Mr. Justice McAdam, in the case of Sivicley v. Jones (filed in the Marine Court November 2, 1878). If this opinion had been reported we would have contented ourselves with a simple reference to it.
*316The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the injunction dissolved.
Davis, P. J., concurred. Present — Davis, P. J., and Barrett, J.Order reversed, with ton dollars costs and disbursements.