232 N.Y. 47, Mulkins v. Snow

Citation:232 N.Y. 47
Party Name:IDA MULKINS, Appellant, v. NELLIE SNOW et al., Respondents.
Case Date:October 25, 1921
Court:New York Court of Appeals
 
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232 N.Y. 47

IDA MULKINS, Appellant,

v.

NELLIE SNOW et al., Respondents.

New York Court of Appeal

October 25, 1921

Argued October 7, 1921.

Page 48

COUNSEL

Thomas H. Larkin for appellant. The court below committed reversible error in holding that a plaintiff in the Supreme Court of this state must allege jurisdiction facts. (N.Y. Const. art. 6, § 1; Hart v. Hatch, 3 Hun, 375; Alexander v. Bennett, 60 N.Y. 204; People ex rel. Ryan v. Green, 58 N.Y. 295; People v. Nichols, 79 N.Y.

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582; People ex rel. Swift v. Luce, 204 N.Y. 478; Matter of P. S. Com. v. Bklyn. H. R. Co., 105 Misc. 254; Gervaise v. C., R. I. & P. R. R. Co., 58 Hun, 610; Carter v. Herbert Booth King Bro. Pub. Co., 56 N.Y.S. 382; Bushausky v. Latinberg, 145 N.Y.S. 898; Matter of Moore, Inc., v. Canadian L. Co., 120 A.D. 735; Johnson v. Adams Tob. Co., 14 Hun, 89; Barber v. Barber, 137 A.D. 565; Young v. Carter, 10 Hun, 194.) The Special Term erred in holding that the Indian Law conferring exclusive jurisdiction on the Peacemakers' Court and divesting the Supreme Court of its jurisdiction is controlling in the case at bar. (N.Y. Const. art. 6, § § 1, 18; Popfinger v. Yutti, 102 N.Y. 38; People v. Johns, 141 N.Y.S. 225.)

Hudson Ansley for respondent. Plaintiff cannot maintain the action. ( Bohn v. Hatch, 133 N.Y. 64.) The Seneca Nation of Indians cannot maintain an action to quiet title under section 1638 of the Code. ( Seneca Nation v. Appleby, 196 N.Y. 318.) Neither can a member of the tribe. ( Johnson v. Long Island R. R. Co., 162 N.Y. 462.) Assuming that the action can be maintained, the complaint does not state facts sufficient to constitute a cause of action. (Indian Law, § 46; Silverheels v. Matie, 82 Misc. 48; Harris v. White, 81 N.Y. 532; Gilbert v. York, 111 N.Y. 544; Cobb v. Met. C. Agency, 31 Misc. 319.)

POUND, J.

The action is brought by plaintiff to determine her right of possession of land on the Cattaraugus Indian Reservation in Chautauqua county, New York, now in her possession and to bar defendants from any right therein. On a motion for judgment on the pleadings the complaint was dismissed. The parties are Seneca Indians. The defendants reside on the reservation. It does not appear where plaintiff resides. She

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alleges that she resides 'outside the territorial jurisdiction of the peacemakers' court of said reservation, ' but this is not the allegation of a fact. It does not appear on the face of the complaint that the Peacemakers' Court is without authority to determine the dispute between the parties.

The Indian Law (Cons. Laws, ch. 26), section 46, providing for Peacemakers' Courts on the Cattaraugus Reservation, declares that the peacemakers elected for the reservation shall constitute the Peacemakers' Court; that such court 'shall have authority to hear and determine all matters, disputes and controversies between any Indians residing upon such reservation, whether arising upon contracts or for wrongs, and particularly for any encroachments or trespass on any land cultivated or occupied by any one of them, and which shall have been entered and described in the clerk's books of records' and 'exclusive jurisdiction * * * to hear and determine all questions and actions between individual Indians residing thereon involving the title to real estate on such' reservations. The Indian...

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