author: Bischoff, J.

text:
    John Carling, App’lt, v. William Purcell, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 14, 1893.)

    1. Appeal — Security.
    .The amendment of _§ 1341 of the Code by § 7 of chapter 450, Laws 1890, dispensing with security to perfect an appeal from an inferior court, has no application to appeals from the city court of New York to the common pleas, and to render such appeal effectual security must still be given.
    2. Same — Order dismissing appeal.
    Where no security has been given upon such an appeal, an order of the special term of this court dismissing such appeal is not appealable.
    . Appeal from an order made at special term of this court, which dismissed an appeal from the general term of the city court of New York to this court because of appellant’s omission to perfect the last mentioned appeal by giving security for costs.

      Thomas J. Farrell, for app’lt; Edw. W. S. Johnston, for resp’t.
   Bischoff, J.

Plaintiff sought to appeal to this court from a judgment of the general term of the city court of New York which affirmed a judgment for defendant. To that end he served his notice of appeal, but did not give the security required to perfect the appeal by § 1341 of the Code of Civil Procedure before its amendment by chap. 450, Laws of 1890. Defendant thereupon, under the provisions of rule 11 of the special rules, applied to this court at special term, and on notice to plaintiff, for an order dismissing the appeal. This order was granted and from it the present appeal is attempted to be taken.

Section 1341 of the Code of Civil Procedure, as originally enacted, see chap. 448, Laws of 1876, provided that upon an appeal to the supreme court from an inferior court security must be given to render it effectual, and the security intended "is the same as provided for in case of an appeal to the court of appeals. Code Civ. Pro., § 1326; Lane v. Hun bert, 16 Daly, 186; 31 St. Rep., 277. Sections 3191-3194 regulate appeals from the city court of New York to this court, and § 3192 declares that titles first and third of chapter twelfth of the act of 1880, chap. 178, comprising §§ 1293-1323, 3140-1345, shall be applicable to such appeals except as §§ 3193 and 1394 may otherwise prescribe. By § 7, chap. 450, Laws of 1890, § 1341 of the Code of Civil Procedure was so amended as to dispense with security to perfect an appeal to the supreme court from an inferior court, and the query is whether, or not, this amendment applies to appeals from the city court of New York to this court.

. It is a rule which governs the interpretation of statutes that a statute which expressly, or by necessary implication, adopts another, must be deemed to have incorporated the statute adopted ipsissimis verbis, and that future additions to or modifications of the latter are not included in the adoption, unless a contrary intention is clearly manifested. Sutherland on Statutory Construction, § 257; Endlich on Interpretation of Statutes, § 85, p. 115 ; Knapp v. Brooklyn, 97 N. Y., 520; Matter of Main street, etc., 98 id., 454. Section 1341 .of the Code of Civil Procedure, at the time of the enactment of § 3192 (May 6,1880), required security to render the appeal effectual, and as the last mentioned section contains nothing from which an intention to include future additions to or modifications of § 1341 in the adoption is inferable on apparent, the rule of interpfetation referred to precludes the application of the amendment which dispenses with the security to appeals from the city court of New York to this court. Hence, to render such an appeal effectual security must still be given.

Pursuant to the provisions of § 1347 of the Code of Civil Procedure, an appe'al to the general term of a superior city court, of which this court is one, § 3343, sub. 1, from an order made at special term, can only be taken when the order (1) grants, refuses, continues or modifies a provisional remedy, (2) grants or refuses a new trial, (3) involves some part of the merits, (4) affects a substantial right, (5) in effect determines the action and prevents a judgment from which an appeal might be taken ; or (6) determines a statutory provision to be unconstitutional. Clearly, the the oi’der dismissing the appeal is not among the cases provided for, unless it may be successfully claimed that it affects a substantial right. But the effect of the omission to give the required security was to render the appeal ineffectual and the notice of appeal to this court a nullity. Raymond v. Richmond, 76 N Y., 106; Benedict & Burnham Mfg. Co. v. Thayer, 82 id., 610. No appeal was pending; the order dismissing it was unnecessary; no right whatever of the plaintiff was involved, and the order was, for that reason, not appealable.

The appeal should, therefore, be dismissed, with costs.

Daly, Oh. J., and Pryor, J., concur.


source: Caselaw Access Project

author: Maynard, J.

license: Public Domain

text:
    In the Matter of the Petition of George W. McLean, Receiver of Taxes, Resp’t, v. The Wyandance Brick & Terra Cotta Co., App’lt.

      (Court of Appeals,

      Filed April 18, 1893.)

    1. Corporations — Taxes—Waiver.
    Defendant, a domestic corporation, stated in its certificate of incorporation, filed in Suffolk county, that its business was to be carried on in Babylon, in that county. In 1889 and lb90, it had a place of business in New York, where its financial transactions were conducted, and the assessing officers of New York assessed the appellant for the amount of its stock. Appellant, in order to reduce its assessment, filed a statement, under oath, thatiits principal place of business was in the city of New York, and the commissioner largely reduced its assessment, and upon appellant failing to pay I he reduced assessment a fine was imposed. Held, that whatever objection might have been successfully urged as to the legal residence of ap pellant was waived by its appearance before the taxing officers and its statement then made, together with the reduction of the assessment.
    2. Same.
    The appellant’s conduct was such as to induce in the minds of the assessing officers the belief that it was the proper subject of personal taxation in New York, and it assented to such taxation there, disputing only the amount for which it was taxable, and it cannot now justly complain if it is compelled to pay the tax imposed.
    Appeal from judgment of the supreme court, general term, first department, affirming order directing appellant to pay to the clerk of the city and county of New York, for the benefit of Geo. W. McLean, as receiver of taxes, the sum of $1,038.96, the fine imposed upon it for neglecting and refusing to pay its personal tax for the. year 1890.

      D. G. Harriman, for app’lt; John G. H. Meyers, for resp’t.

       Affirming 49 St. Rep., 601.

   Maynard, J.

The appellant, a domestic corporation, has appealed from an order requiring it, as a delinquent taxpayer, to pay a fine equal to the amount of tax levied by the proper authorities of New York city upon an assessment of personal property during the years 1889 and 1890.

The principal ground upon which it seeks relief is nonresidence. It claims that the assessing and taxing officers had no jurisdiction to make the assessment and levy the tax, because it was a manufacturing corporation, incorporated under the act of 1848, and that in its certificate of incorporation, which was filed in Suffolk county, it is stated that “the name of the town and county in which the operations of the said company are to be carried on is the town of Babylon, county of Suffolk,” and it is alleged that the greater part of its business was in fact done there; and that it could not be lawfully assessed for personal property elsewhere than in Suffolk county.

Upon the facts disclosed in the record before us, we do not think this objection was available to the appellant in this proceeding. It is admitted that during these years it had a place of business in the city of New York, where its financial transactions were conducted, and it was thus apparently assessable for its personal estate in that city. The assessing officers, acting upon the visible evidences of the fact, between the 1st Monday in September and the 2nd Monday in January, when they are required by law to complete the books of assessment, assessed the appellant' for personal property valued at $200,000, being the amount of its capital stock, and which, in the absence of proof to the contrary, might be presumed to be the value of its personal property.

They then gave notice, as required by the statute, that they had completed the assessment records; and that they would be open for examination and correction until the first day of May.

Before that date, the appellant made application to the commissioners for a reduction of its assessment, and filed a written statement, under oath, showing its condition for the purposes of assessment on the second Monday of January, which also contains the following declaration: “ The principal office, or the place of transacting the financial business of the said corporation, is situated * * * at No. 19 Park place, in the city of New York.” It does not appear that the appellant then made any claim, or gave any intimation to the commissioners, that it was not within their jurisdiction because of non residence. In response to this application, and acting upon the evidence thus presented by the appellant, the commissioners reduced its assessment from $200,000 to $47,000, upon which the tax was subsequently levied in due conformity to law, for the non-payment of which the fine now complained of was imposed. We do not deem it necessary to consider where the legal residence of the appellant, for the purpose of taxation, might have been in 1890.

Whatever objection it might have successfully urged against the action of the taxing officers on that score has been waived by its appearance before them, and by its application for a reduction of its assessment, and by its statement, then made and filed, that its principal office and place for the transaction of its financial affairs was in the city of New York; and by the favorable determination of the commissioners secured upon the application so made, and the proofs so furnished. It voluntarily submitted itself to their jurisdiction, and elected to have a taxable residence for that year in the city of New York. While such election would not deprive the authorities of another municipality, where the appellant might actually reside, of the right to assess it there for its personal estate, it was sufficient to clothe the respondents with jurisdiction, and to sustain their action induced by the conduct of the appellant. It does not appear that the appellant was taxed elsewhere for personal property in the year 1890 ; and it may have obtained exemption from taxation in other localities on the ground that it was taxable in New York, and was in fact taxed there. There is not, at least upon the record, any question of double taxation involved.

It is a familiar principle that a party may waive an objection founded upon want of jurisdiction of the person, and he does waive it by a general appearance and proceeding to a trial upon the merits. Wheelock v. Lee, 15 Abb. Pr., N. S., 24. . The proceedings for the assessment of property are of a judicial character, and the assessors, in making an assessment, act judicially, and the law provides for the appearance before them of parties deeming themselves aggrieved by their proposed action, and the submission of proofs to support the complaint made, and a final determination by the assessors thereon, and the rule referred to is applicable to such a proceeding, and precludes a party who appears before them and asks to have his assessment reduced, and obtains a reduction, and makes no other objection, from subsequently claiming that they had no jurisdiction to tax him at all. In such cases the waiver may be implied when a state of facts is shown to exist which requires it, and the implication may arise from an omission to object when there is an opportunity, as well as by express consent. Matter of N. Y., W. S. & B. R. Co. v. Hart, 35 Hun, 575.

There is always the legal presumption that a public officer will properly discharge his official duties, and if the appellant, in making its application to the commissioners for a correction of its assessment, had disclosed the fact of its non-residence, it is to be presumed that its assessment would have been stricken from the roll, and this litigation would have been avoided. It has been held that where a party has an election to pursue one of several courses, and adopts one of them at a stage of the proceedings at which the election is to be made, he is deemed to have waived all others, and that this rule will be strictly enforced, when necessary, to prevent a multiplication of controversies. Northampton Nat. Bank v. Kidder, 50 Super. Ct., 246.

The precise point here presented was, we think, decided by this court in Hilton v. Fonda et al., Assessors of Saratoga Springs, 86 N. Y., 339, upon facts not materially different from those now under consideration. There the plaintiff was a non-resident, but was assessed as a resident for real property, a form of assessment which the assessors had no jurisdiction to make. The agent appeared before the board and asked to have the assessment reduced in valuation, and obtained a reduction, but not so much as he claimed to be entitled to, and made no objection to the assessment on the ground of the non-residence of the plaintiff.

It was held that a party may waive the observance by officials of a statute for his individual benefit, and that having knowledge of the course prescribed by law to an official, he cannot look on and see the officer innocently depart from the prescribed course, and by silence, acts, words or seeming acquiescence encourage him in his departure, and subsequently be heard to claim that his action was unauthorized. Chief Judge Folger, in commenting upon the course of the plaintiff’s agent, said (p. 350), that it was apparent that “ he was liable to be understood as tacitly assenting to all of which, he did not openly complain; that he was so understood; that he was bound to know that he was likely to beso understood; that he did not mean to be understood otherwise ; and did perceive t'uit he was not understood otherwise.”

In the present case we must conclude that the appellant’s conduct was such as to induce in the minds of the assessing officers the belief that it was a proper subject of personal taxation in New York, and that it assented to .such taxation there, disputing only the amount for which it was taxable; and that it cannot now justly complain if it is compelled to pay the tax thus imposed.

The order should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    John T. Cunningham, Resp’t, v. John M. Fitzgerald, App’lt.

      (Court of Appeals,

      Filed April 18, 1893.)

      1. Injunction — Change op grade op street by private individual.
    Where the owner of a tract of land has sold lots thereon fronting upon a street as laid out upon a map duly filed by him, and thereafter, without any ordinance or other public authority, such owner attempts to lower the grade by_ digging and carrying away the soil to he used on other streets as laid out in the general plan of the tract, the grantee is entitled to an injunction restraining the prosecution of the work.

      Z, Same.
    The referee awarded a judgment restraining defendant from in any manner lowering the grade “ or changing the condition of St. John’s Park from the east line of plaintiff's premises to the Boulevard.” Held. error; that the extent of the relief to which the plaintiff was entitled was to enjoin the defendant from cutting down the grade of the street in front of his lot in such a way as to render access to and from his premises less convenient in some material and substantial respect.
    (Earl, J., dissents.)
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered upon report of referee.

      Quincy Van Voorhis, for app’lt; Arthur E. Sutherland, for resp’t.

       Modifying 43 St. Rep., 904.

   O’Brien, J.

The judgment in this case awards an injunction to the plaintiff restraining the defendant from cutting down the grade of a street in front of his lot or interfering with the same. A small money judgment was also awarded as damages. Thé referee who tried the case found that about the year 1884 the defendant became the owner of a considerable tract or parcel of land in the village of Charlotte, which had been mapped and plotted into village lots, with streets and avenues running through and intersecting each other, upon which the lots were bounded. The map upon which the streets and lots were exhibited was duly filed in the county clerk’s office, but no lots had been sold prior to the time that the whole parcel was purchased by the defendant. Subsequently the defendant conveyed one of the lots to the plaintiff, describing it as lot number eighteen on the map, “ being fifty feet in front on the north side of Hughes Park, and extending back therefrom, of equal width throughout, one hundred and twenty-five feet.” This park was an avenue one hundred feet wide, intended for sidewalks twelve feet wide on each side, and a roadway over seventy feet wide. When the plaintiff purchased,, the roadway up to the east line of his lot had been improved and graded by raising the bed of the road in the centre and forming gutters on each side. The name of the park was subsequently changed to St. John’s Park. It runs east and west through the tract, and at the west end intersects a boulevard running north and south. The defendant has sold all the lots fronting on the park or avenue west of the plaintiff’s lot, but he still owns numerous lots on the east, and the avenue in front of them remained in substantially its natural state. Since the plaintiff’s purchase the defendant opened a new street running southerly from St. John’s Park at nearly right angles therewith, and terminating at the south in a cul de sac. The plaintiff has built a dwelling upon and graded his lot to correspond with the grade of the -highway in front of it, established a driveway and planted ornamental trees on the side of the street in front of the lot.

The defendant, before the commencement of this action, and without the plaintiff’s consent, entered upon this highway in front of and east and west of the plaintiff’s lot, and dug up and carried away quantities of the soil from the roadway, and put the same upon the new street referred to, cutting down the grade of the street in front of the plaintiff between one and two feet, and was so engaged cutting it down still more when he was restrained by the injunction. It has been found that this interfered with the plaintiff's access to his property from the street and damaged the-same, and that the defendant’s purpose was to remove the earth from St. John’s park, in front of plaintiff’s lot, and east.and west of it, for the purpose of taking it to the new street and grading it up to correspond with the grade of the park where the two-intersect. The defendant owned the lots on the new street and on the park east of plaintiff, and they will be benefited by this improvement, but the finding is that the change, if carried out, will work irreparable injury to the plaintiff. These facts and others have been found by the referee in great detail, and as we cannot say that any of them are wholly unsustained by the evidence, we are concluded by them in the disposition of the case. The avenue, on the north side of which the plaintiff’s property is, has become a public highway by dedication. The parties who have purchased lots bounded thereon have an easement in the street for the purpose of access to their lots, and this easement is property which cannot be invaded without subjecting the party to liability in damages, and in a proper case it will be protected by injunction. The defendant did not act under any public authority, but for his private benefit. Indeed, it appears that the public authorities had never accepted the street in question or exercised any jurisdiction over it, but that circumstance does not affect the plaintiff’s rights in the street for the purpose of access. The language of the description of plaintiff’s lot in the deed from the defendant can be construed as bounding the lot upon the street, and if so, the plaintiff owned to the centre of the street, and the removal of the soil thereupon in the manner found by the referee would clearly amount to a trespass. Story case, 90 N. Y., 122; Perrin v. N. Y. C. R. R. Co., 36 id., 120.

But it is unnecessary to decide that question. Whether the plaintiff owned to the center of the street or not, the defendant could not impair his right of access. He could not cut dqwn the roadway so as to render the plaintiff’s right of ingress and egress more difficult. It is, no doubt, true that -the plaintiff purchased in contemplation of the improvements to be made upon the street, and as the defendant still owned a large part of the tract he was interested in making the improvements. But the roadway in front of the plaintiff had become graded and established, and the change made and contemplated by the defendant was not for the benefit of the street at the point in question, but for the benefit of other localities. When the public authorities undertake to improve a street, and it becomes necessary to change the grade, there are many cases where private interest or convenience must yield to the public good. But the defendant’s original right, as owner of the whole tract, to lay out and grade streets at his pleasure, was abridged whenever he sold a lot bounded upon the street, and when he had sold all of the lots on the street, his right to regulate or grade that street was the same as any other member of the community, unless the right to do the particular thing claimed had been expressly reserved in his grants.

A private individual, engaged in improving streets for the benefit or convenience of his own property, cannot cut down the grade of an existing street to the detriment of an abutting owner. If the cutting of the grade impairs the abutting owner’s right of access to his property, his consent is necessary under such circumstances, as he may resist a projected improvement by his neighbor which he could not resist if undertaken by the public authorities. A party cannot impair his neighbor’s easement in a street, and force what he calls a benefit upon him against his will. As against any mere private interest, the property owner can resist an attempt to change the grade of a. street whenever he can show that such change will injure him. In this case, the plaintiff has satisfied the referee with respect to the injury committed and contemplated, and that was largely, if not entirely, a question of fact. It is true that when the plaintiff purchased his lot he was chargeable with knowledge of the fact that the whole tract was mapped and plotted, and that a plan for the general improvement of the' lots and streets was contemplated. A purchaser might have such knowledge or information with respect to changes in the grade of the street from the map or from the surroundings or situation visible at the time of his purchase that his assent to it could be implied. But there does not appear to be anything in this case to show that the plaintiff expected, or had any right to expect, that the grade of the street would be cut down after it was established and the roadway completed, and the surface of his lot made to conform thereto. The improvement which rendered this necessary, in the view of the defendant, was not projected until after plaintiff’s purchase, and after the improvement of his lot and the street adjoining. The point is made by the defendant that the facts stated in the complaint are not sufficient to confer jurisdiction upon a court of equity to grant relief by injunction. It is sufficient to say that such an objection cannot be raised for the first time upon an appeal, but should be raised by answer and presented at the trial.

The judgment awarded by the learned referee is, we think, too broad. The words of the judgment are, that the defendant be perpetually enjoined and restrained from plowing, excavating or carrying away earth from the roadway of St. John’s park in front of plaintiff's premises, * * * and from excavating, interfering with, or in any manner lowering the grade, or changing the condition of St. John’s park from the east line of plaintiff's premises to the boulevard’'

This virtually enjoins the defendant from improving the park west of plaintiff’s easterly line. A private citizen, whether moved by public spirit or private interest, may improve and beautify parks and streets, especially when he stands in such relations to the locality as the defendant does. The plaintiff has no right to enjoin the defendant from improving St. John’s park west to the boulevard if he desires to, so long as he does not interfere with the property rights of others. The extent of the relief to which the plaintiff was entitled was to enjoin the defendant from catting down the grade of the street in front of his lot in such a way as to render access to and from his premises less convenient in some material and substantial respect. The evidence to show that the defendant has actually interfered with the plaintiff’s rights within this rule is not very strong, and it is possible that it was open to another view, but as the finding is not destitute of all evidence for support, and as it has been approved by the general term, we cannot disregard it.

The judgment should, therefore, be modified as above indicated, and, as so modified, affirmed, without costs to either party in this court.

All concur, except Earl, J., dissenting.


author: Earl, J.

text:
    In the Matter of the Petition of James Blewitt.

      (Court of Appeals,

      Filed April 18, 1893.)

    1. Lunacy — Supersedeas
    There is no provision of the statute entitling a lunatic, who has been so adjudged and a committee appointed, to have the question of his sanity submitted to a jury. The manner in which the judge, to whom an application for a supersedeas of the commission has been made, will ascertain whether the alleged lunatic has become sane and competent to take care of himself and his property rests in his discretion.
    2. Same.
    In June, 1890, petitioner was adjudged a lunatic and his wife appointed as committee, but with no notice to him. The court refused to vacate the proceedings but permitted him to traverse the allegations of the original petition and to have his sanity tried before the commissioners and a jury. He refused to avail himself of the permission, although a jury was empanelled and kept in existence for a month, but, the petitioner leaving the state, the jury was discharged, and now a third application for a supersedeas, upon the same affidavits, is made again asking for a hearing by a jury, lie Id, that the court, in the exercise of its discretion, properly denied the application.
    Appeal from judgment of the supreme court, general term, first department, affirming an order denying motion for supersedeas under the petition of James Biewitt in lunacy proceedings.

      Abram Kling, for app’lt; Lorenzo Semple, for resp’t.
   Earl, J.

In June, 1890, a proceeding de lunático inquirendowas instituted against James Biewitt by his wife, and in that proceeding he was adjudged a lunatic, and his wife was appointed the committee of his person and estate. Thereafter he made a motion at a special term to vacate and set aside the proceedings in lunacy and the appointment of the committee on the ground that he had had no notice of the proceedings, and that they were otherwise irregular. Upon that motion the court made an order refusing to vacate the proceedings, but permitting him to traverse the allegations contained in the original petition, and it directed the trial of the issue as to his sanity before the commissioners appointed and a jury. From that order he appealed to the general term and from affirmance there to this court, and here the order was affirmed, 131 N. Y., 541; 43 St. Rep., 926.

While we held that the lunacy proceedings were irregular, because no notice had been served upon Biewitt, yet we upheld the order which refused to vacate them for the reason that it gave him full opportunity to litigate the question of his sanity before a competent tribunal in the manner prescribed. It is not now questioned that the original lunacy proceedings were valid, and that the committee was regularly and legally appointed.

Biewitt now presents his petition supported by affidavits claiming that he is no longer insane and praying for a supersedeas of the commission, and that the issue as to his sanity be determined by a jury at a circuit court. The motion based upon the petition was-opposed upon the affidavit of Mrs. Biewitt, and was denied by the court, .and we are now to determine whether any legal error was committed in such denial.

Upon this application for a supersedeas the counsel for the petitioner seems to be of the opinion that his client has the right to have the question of his sanity submitted to a jury, and to have it determined in that way. There is no provision of any statute entitling the lunatic to such a trial. Section 2343 of the Code provides that where the alleged lunatic becomes competent to manage himself and his affairs, the court must make an order terminating the committee of his person and property. When an application is made for a supersedeas of the commission, the court must exercise its discretion. The presiding judge may cause the lunatic to be brought before him for his personal examination. He may appoint an expert to examine him, and report as to his condition. He may cause the witnesses to be brought before him, and examined in open court, or he may refer the matter to a referee to take the evidence of the witnesses, ^and make his report thereon; or he may hear the application upon affidavits if he is satisfied to dispose of it in that way. He may also, in the exercise of his discretion, although we have found no reported case in this country or England where it was done, order the question as to the sanity of the alleged lunatic to be tried before a jury. But the manner in which he will ascertain whether the alleged lunatic has become sane and competent to take care of himself and his property rests in his discretion. In re Hanks, 3 Johns. Ch., 568; In re Weis, 16 N. J. Eq., 318. The discretion should be exercised with great care and patience, so as to protect the alleged lunatic against the wrongful deprivation of his liberty and property.

In this case, by the order -which came to this court in 131 N. Y., 541; 43 St. Rep., 926, supra, Blewitt had an opportunity to have the question of his lunacy determined before a commission and a jury. But he refused to avail himself of the permission. Subsequently, another opportunity was given to him bv ah order of the general term, to have the question of his recovery tried by a jury, and in accordance with that order, a jury was empanelled, and the lunatic and his attorney again declined the opportunity, and, on the contrary, the alleged lunatic withdrew from the state. That commission and jury were kept in existence from December 8, 1891, to January 16, 1892, at great expense to the lunatic’s estate, and were finally discharged and dissolved because the lunatic failed to appear. An appeal was taken from the order of discharge to the general term, where it was affirmed. Upon that application an allowance was made to the petitioner’s counsel of $250, to defray the expenses, and now, without any change, so far as can be ascertained from the affidavits, the petitioner has made a third application for a supersedeas, upon substantially the same affidavits, again asking for a hearing before a jury. We think the court, in the exercise of its discretion, could properly, and did properly, deny the application. The petitioner has had abundant opportunity to have his case submitted to a jury, but each time he seems to have neglected to avail himself of it.

There was absolutely no ground for the present application, and the order should be affirmed, without costs to either party.

All concur.


text:
    Emily A. Moulton, Resp’t, v. Nehemiah N. Cornish, App’lt.

      (Court of Appeals,

      Filed April 18, 1893.)

    1. Mortgage — Strict foreclosure — Redemption.
    Plaintiff was misled by a county clerk’s search in commencing a foreclosure action and omitted to make defendant, a subsequent mortgagee of the same property, a party to said action. Prior to the date fixed for the sale plaintiff discovered that defendant was a necessary party and procured the saleto be postponed, and on her motion an order was entered that she might, if she so elected, open the judgment in the foreclosure suit and amend all the papers by making defendant a party and that he be served and have the usual time to answer, but, she did not avail herself of this privilege and on the adjourned day sold the premises and bid off the farm in question, went into possession and brought this action in strict foreclosure, obtaining a judgment that defendant give n./tice that he would redeem within ten days or be forever barred and foreclosed, etc., as to any lien by reason of his mortgage. Held, error; as under such circumstances no case was made for a resort to the unusual, exceptional and severe remedy of a strict foreclosure.
    .2. Same.
    Plaintiff occupied no better position with respect to the defendant than it she had taken a deed from the mortgagor and an assignment of the other incumbrances and had gone into possession.
    3. Same.
    Plaintiff under the pleadings and proofs in this action was only entitled to obtain leave to amend by bringing in the necessary parties; foreclose her mortgage as against defendant, and sell and have the equities of the parties interested adjusted by the court.
    4. Same — Appeal.
    Such a judguient by the expiring of the time within which the notice could be given had become final and subject to review by this court.
    Appeal from judgment of the supreme court, general term, fourth department, modifying and affirming judgment entered in Oneida county upon a decision made at a special term in that county, requiting defendant to redeem premises described in the complaint within a period of time, or be forever barred from the right to redeem.

      E. J. Richardson and Samuel Keeler, for app’lt; C. M. & G. E. Dennison, for resp’t.

       Reversing 41 St. Rep.,

   Maynard, J.

In 1886 the plaintiff was the owner of a mortgage, given to secure the payment of $8,650 and interest, upon three several lots of land in the town of Floyd, Oneida county, known as the Klock, Bells and Tavern farms, and the defendant was the owner of a subsequent mortgage upon the same property given to secure the payment ot' $2,500 and interest, which, with the assignments to him, were recorded in the Oneida county clerk’s office.

On May 16th, the plaintiff commenced an action in the supreme court for the foreclosure of her mortgage, but omitted to make the defendant a party thereto. This omission was not intentional, but the plaintiff was misled by an abstract of a search obtained from the clerk’s office, from which it might have been fairly inferred that the defendant’s assignment was one in a series of transfers, and that the title to his mortgage was in another, who was made a defendant, and who appeared from the abstract to be a subsequent assignee. If a full statement of the search, in the usual form, had been obtained by the plaintiff, the interest of the defendant in the mortgaged property would have correctly appeared. The action resulted in a judgment entered December 27, 1888, decreeing a foreclosure of the plaintiff’s mortgage, and a sale of the mortgaged premises by a referee, pursuant to the provisions of the Code and the practice of the court in such cases. The premises were first advertised by the referee to be sold on March 2, 1889. Before that time the plaintiff discovered that the defendant was a necessary party to the complete foreclosure of her mortgage, and she procured the sale to be postponed until March 16th, and made a motion, at a special term held at Syracuse on that day, for an order granting her leave to amend the summons, complaint, Ms pendens and judgment in the action by inserting therein the name of this defendant, and adjudging and decreeing that he be forever barred and foreclosed of all right, title, interest and equity of redemption in the mortgaged premises, or for such further order or relief as the court might deem proper to grant.

Upon the hearing of that motion the court made an order, which was entered, and which has not been reversed or vacated, directing that, upon payment of ten dollars costs, the plaintiff might, if she so elected, open the judgment in the foreclosure suit, and amend the summons, complaint, Ms pendens and all subsequent proceedings, by making this defendant a defendant in that action, and inserting the necessary allegations for that purpose, and that the amended summons and complaint be served on him, and that he have the usual time to answer. The plaintiff did not avail herself of the privilege afforded by this order, and on March 16, 1889, the referee proceeded to sell the mortgaged premises. At the opening of the sale, and before selling, the referee announced and read the conditions of sale, which were in the usual form, except the last paragraph, which was in these words: “ 7. The property is sold free and clear of any and all rights of dower, charge or lien upon the same, except that it is claimed by one Behemiah B. Cornish (the defendant in this action), that he is the owner by assignment of a mortgage made by Ichabod C. McIntosh to Miriam M. Kellogg, covering the premises in question, dated February 1, 1818, to secure the payment of $2,500, which mortgage was recorded in Oneida county clerk’s office February 13, 1878, and is a second lien upon said mortgaged premises. Cornish has not been made a party defendant to this action.” The plaintiff bid off the .property known as the Tavern farm, and the referee on the same day executed to her a deed, and very soon thereafter she went into possession. The sale was confirmed on the 6th of April, and on April 9th this action for a strict foreclosure was brought. The other farms were bid off by other parties, who have not been made defendants in this action. The plaintiff has recovered a judgment which, as modified by the general term, decrees: First. That the defendant’s mortgage is an existing lien on the lands purchased by plaintiff upon the foreclosure-of her mortgage, and was not affected by such foreclosure because not made a party to the action; second, that if the defendant desires to redeem the land bid off by the plaintiff upon her mortgage he shall, within ten days from the service of a copy of the judgment, give the plaintiff notice of his desire and intent to do so.

If such notice is not given within the time specified, it is ordered and adjudged, that the defendant and all persons claiming under him do stand and be forever barred and foreclosed of and from all right, title, interest and equity of redemption of, in and to such premises, and all liens which he may have had thereon at the time of the commencement of the foreclosure action, by virtue of his mortgage or otherwise, are to be adjudged as cut off and foreclosed, and the plaintiff shall hold the title thereto free from such liens, and the defendant shall pay the costs of the action; third, if the defendant gives notice of his intention to redeem, within the time required, the plaintiff may apply on notice to the special term for the appointment of a referee to take and state the account of the plaintiff, and to determine her interest in the mortgage debt, as applicable to the lands bid off by her, and the referee’s report shall be made up according to certain directions contained in the judgment, and shall fix and determine the amount the defendant shall be required to pay upon such redemption, and the amount so found due by the referee, with the interest thereon, shall be paid by the defendant within six months from the service of a copy of the report, and if paid within such time the payment shall operate as a redemption of the premises from the plaintiff’s mortgage, and her title acquired at the sale shall become vested in him, and she shall, by a proper conveyance, convey the premises to him free and clear from the lien of her mortgage, and neither party shall have costs of the action ; but if the defendant fails to complete the redemption in the manner, and within the time specified, it is ordered and adjudged, that the lien of his mortgage is cut off and removed, and the plaintiff is deemed to hold the premises free 'and clear of such lien, and the defendant shall pay the costs of the action.

The material facts are not disputed, and we are of the opinion that upon the proofs submitted and the findings of the trial court, the plaintiff was not entitled to the relief granted to her in this judgment. The equitable remedy known as a strict foreclosure of a real property mortgage has never been recognized in this state, save .in a very limited class of cases.

In England it was the prevailing method of procedure, until the enactment of the statutes of 15 and 16 Victoria, chap. 86, § 48, known as the chancery improvement act. It had its root in the common law doctrine that, upon the execution of the mortgage, the mortgagee acquired the fee to the land, and upon default in payment a right to the possession, and the mortgagor had no estate or interest therein, and no right of possession, after default had been made in the payment of the mortgage debt. The mortgagee’s remedy was by ejectment, and in a court of law it was not an available defense for the mortgagor to plead that he was willing and ready to pay the debt, if he had once suffered a default to occur. In order to mitigate the hardships of this relation, equity permitted the mortgagor and his privies to redeem by discharging the mortgage debt, and by restoring to him the possession of the land if the mortgagee had taken possession. As it might be uncertain whether the mortgagor or subsequent lienors would ever avail themselves of the right of redemption, it was, while outstanding, a serious impediment to the alienation of the mortgaged property, and equity would, therefore, entertain an action to compel the parties entitled to this right to exercise it by paying, within a reasonable time, the amount of the mortgage debt, or be forever barred or foreclosed of the right of redemption; and in case of redemption, the decree provided that the mortgagee should reconvey the lands to the mortgagor, or other party redeeming.

This proceeding has been termed a strict foreclosure, but it is apparent that it has no appropriate place in a system of laws and jurisprudence where it has been declared that the mortgage does not operate as a conveyance of the legal title, but is only a chose in action constituting a lien upon the land as security for the debt or other obligation of the mortgagor. The courts of this state have refused to adopt it as an authorized remedy in ordinary cases, and in this respect have followed the practice of the civil, rather than of the common law. In the Am. & Eng. Encyclopaedia of Law, vol. 8, 186-7, tit. Foreclosure, it is stated that strict foreclosure is very rarely resorted to in the American courts; that in a large majority of the states it is not recognized; that in two it is the usual mode of procedure; and that in six of the states, including New York, it is permitted in exceptional cases.

The plaintiff here rests her right to this remedy principally upon the fact that she was the owner of a prior mortgage, which she had foreclosed, and that she became the purchaser of á part of the mortgaged property at the foreclosure sale, and that the defendant's subsequent mortgage was not cut off or affected by the foreclosure, because she did not make him a party to the foreclosure action. Before the sale occurred she had full knowledge that the defendant was the owner of the second mortgage, and leave was given her by the court to make him a party to the action, and so conclude him by the judgment, which she declined to accept, but caused the sale to proceed, and purchased the property upon such terms that, both expressly and in legal effect, her purchase was subject to the lien of the defendant’s mortgage.

Under such circumstances, no case was made for a resort to this unusual, exceptional and severe remedy. It is insisted that, under the provisions of the Civil Code relating to foreclosure actions, such a judgment as the one entered herein cannot be rendered in any case; but it is unnecessary to determine that question upon this appeal. We may assume that, in a proper case, jurisdiction still exists to relieve a purchaser at a foreclosure sale who finds that, by reason of some defect in the proceedings, the lien of a subsequent incumbrance has not been extinguished; but the facts here shown are not suficient to authorize the exercise of that jurisdiction. We think that in such cases the purchaser must show that he purchased in good faith, relying, upon the regularity and sufficiency of the foreclosure proceedings, and that the subsequent lienor had knowledge of the sale, and permitted the purchaser to make the purchase without disclosing the existence of his incumbrance, or calling attention to the defect in the proceedings. In 2 Jones on Mort., § 1540, p. 421, it is stated that a strict forclosure is proper “ where a mortgagee or purchaser is in possession under a legal title from the mortgagor, for the purpose of cutting off subsequent' liens or incumbrances, as in case one has purchased'in good faith at a mortgage sale which not conclusive against some incumbrancer not made a party to the suit, and the purchaser has gone into possession.” The cases have been very rare in this state where the remedy has been invoked, but we fail to ñnd a case where it has been applied to relieve a party who buys with full knowledge of the outstanding incumbrance and subject to it. In Kendall v. Treadwell, 5 Abb. Pr., 26, the practice in strict foreclosure cases received an exhaustive examination by Judge Birdseye, and the prominent feature of the case was the good faith of the plaintiff in making the purchase, and the acquiescence of the subsequent incgmbrancers in the validity of the proceedings under which the plaintiff acquired his title. The action to foreclose the mortgage had been prosecuted in the county court, and, after judgment and sale, the supreme court, in another case, had held that the act conferring jurisdiction upon county courts in foreclosure suits was unconstitutional, and its judgments were, therefore, void. The subsequent lienors were all parties to the action in the county court, and did not question its jurisdiction. The learned judge, in summarizing the grounds upon which the plaintiff’s right to equitable relief rested, said (p. 22): “ He was in possession, claiming to be owner under a title apparently good. He took his original title, and has made all his subsequent advances and payments • upon the faith of the act of the legislative authority of the state, and of judicial tribunals established by the state. No objection was then made to the jurisdiction of the court.”

In Benedict v. Gilman, 4 Paige, 58, the bill was filed against subsequent judgment creditors, and the principal question was whether the plaintiff was entitled to an allowance for permanent improvements, and the chancellor, in disposing of this question, says : “ It is charged in the bill in this case, and admitted by the answer, * * * that the complainant was ignorant of the existence of these judgments until after he had made permanent improvements upon the premises to a considerable extent. Under such circumstances it would be inequitable and unjust to give the defendants the benefit of those improvements without compelling them to pay an equivalent therefor. The case would have been different if the complainant had made the improvements with a full knowledge of the defendants’ equitable right to redeem.”

The right to a judicial sale of the mortgaged property to pay the mortgage debt is in this state one of the incidents of the mortgage contract; and if the mortgagor is in default, the mortgagee is entitled to the enjoyment of this right unimpaired. It can only be secured to him by a sale in an action or proceeding to which he is a party; for in all such cases the sale is made for the benefit of all the parties interested, and the proceeds are distributed among them in the order of the priority of their respective liens.

This was the view taken by the general term of the eighth district in Peabody v. Roberts, 47 Barb., 91, where Judge Daniels, delivering the opinion of the court, said, p. 94: “ The second mortgagee possessed the right to maintain an action upon it for the foreclosure of so much of the equity of redemption as remained in the mortgagor at the time when it was recorded, and for a satisfaction of the debt secured by it, by a sale of the mortgaged premises. This right has, from the time of the civil law, been secured to the mortgagee, as an incident to, and growing out of the mortgage itself.” And again, at p. 95 : “ This right is so important in these cases that the holder of the mortgage cannot be deprived of it without at the same time very sensibly impairing and depreciating the security created by the mortgage. And as such it is an essential attribute of property, which positive legislation even cannot destroy without impairing the obligation of the contract out of which!t arises.” This is a just interpretation of the literal terms of the instrument, for the mortgage expressly authorizes the mortgagee in case of default to sell the mortgaged premises, and out of the proceeds satisfy the mortgage debt. Where it a second mortgage, and the mortgagee is made a party to the foreclosure of a prior mortgage, full effect is given to this power of sale, by means of the sale directed in the action or proceeding, which as we have seen is made for the benefit of all the parties served with process or notice. It is not necessary to hold that in no case can the right to sell be held in abeyance; but the right cannot be denied or suppressed unless some adverse dominating equity requires it. If in this case the plaintiff had purchased and taken possession in ignorance of the existence of defendant’s mortgage, and the defendant, having knowledge of the prosecution of the foreclosure action, had made no disclosure of his incumbrance upon the property, and the purchaser was thus misled to his prejudice, it might well have been held that it would be inequitable to permit the defendant to exercise the power of sale in his mortgage, and it might properly have been decreed that unless he reimbursed the plaintiff, his interest in the property should be deemed extinguished. Other cases might be suggested where such form of relief would be just. But in all cases equitable grounds for such a procedure must be shown. It is not a matter of discretion with the trial court whether a remedy of this kind shall be applied. The proofs must bring the case within the exceptional class in which it is permitted, and then the measure of the relief to be granted or the conditions upon which it will be allowed are, to a certain extent, discretionary.

As to this defendant, the plaintiff is only a mortgagee in possession. It is true_ she has also acquired the title of the mortgagor, and has extinguished the liens of all other incumbrancers who were made parties to the foreclosure action.

But she occupies no better position with respect to the defendant than if she had taken a deed from the mortgagor and an assignment of the other incumbrances and had gone into possession. As to the defendant, her mortgage is still unforeclosed, and the estate which the mortgagor had when he executed the defendant’s mortgage is still subject to its lien. The plaintiff may at anytime foreclose her mortgage, as against the defendant, notwithstanding the former defective foreclosure. Brainard v. Cooper, 10 N. Y., 356; Walsh v. Rutgers Fire Ins. Co., 13 Abb. Pr., 33; Franklyn v. Hayward, 61 How., 43. It imposes no hardship to require her to pursue such course if she wishes to rid the title of the lien of defendant’s mortgage. She will be as fully protected upon such a foreclosure as she would have been upon the original foreclosure had she made him a party to it.

The plaintiff may have the ordinary decree of foreclosuie against the defendant in this action if she so desires and all persons who are necessary parties defendant are brought in. It is not seen how any relief can be afforded without the presence of the purchasers of the other two parcels of the mortgaged premises. If it is sought to reforeclose plaintiff’s mortgage, they are unquestionably necessary parties, as the owners of separate portions of the property mortgaged, and by their purchases they have respectively acquired an interest in plaintiff’s mortgage. If the court is asked to apportion either the plaintiff’s or the defendant’s mortgage between the three farms, they are necessary parties to a determination of that question. They would not be bound by any judgment rendered in this action which adjudged" the extent of the lien of either mortgage upon their respective properties, and such adjudication would be necessarily involved in the ascertainment of the amount of either mortgage equitably chargeable upon the several parcels.

In such a case the objection of a defect of parties is available, although not raised by demurrer or answer. The plaintiff is not entitled to the equitable relief sought, if it appears that a complete determination of the controversy cannot be had without the presence of other parties, and the court must direct them to be brought in, Code, § 452 ; and where it appears upon appeal that this has not been done, the court will reverse the judgment, although the issue is not m'ade by the pleadings. Bear v. Am. Rapid Tel. Co., 86 Hun, 400. If the plaintiff obtains leave to amend by bringing in all necessary parties, she may have a decree for a foreclosure of her mortgage as against the defendant, and a sale of the mortgaged premises, in which decree the equities of the different purchasers, as between themselves, can be properly adjusted, and the court can direct the application of the net rents and profits upon the mortgage debt, in ascertaining -the amount which the plaintiff and her co-owners of the mortgage are entitled to receive upon a sale of the property. In general terms, we think this is the extent of the relief to which she is entitled under the pleadings and proofs in this action.

The objection is urged that the judgment under review is not final, but interlocutory, and, therefore, not appealable. The judgment is peculiar in its structure, and an analysis of its provisions leads us to conclude that it finally determines all the substantial rights of the parties. It, in effect, adjudges that unless the defendant, within a prescribed time, gives the plaintiff notice of his desire and intention to redeem the lands purchased by plaintiff at the former foreclosure sale, he is forever barred and foreclosed of and from all right, title, interest and equity of redemption therein, and the lien of his mortgage thereon cut off and foreclosed, and that the plaintiff shall hold the title thereto free from such lien. If the notice is not given, no further judgment need be entered, but this decree, by the force of its own provisions, effectually destroys the lien of the defendant’s mortgage. As presumably the time has expired within which the notice could be given, the judgment has become final, and subject to review by this court. If the defendant has elected to proceed under the judgment, it would be a waiver of his right of appeal, and would be available upon a motion to dismiss the appeal. But the bringing of the appeal gives rise to the presumption that-he has not availed himself of its provisions, and, therefore, if it stands, it will be final and conclusive upon him, and will operate to extinguish his mortgage. Where a judgment-fully and completely disposes of the substantial rights of the parties at issue under the pleadings, and by the force of its own provisions may conclude the appellant without the entry of a further judgment, it must be deemed a final judgment within the purview of § 190 of the Code, although in a certain contingency, dependent upon the action of the appellant, it provides for the taking and stating of an account before a referee, and the payment of the amount found, due as a condition precedent to the enjoyment of certain rights accorded him therein.

In this respect the case of Prod. Bank v. Morton, 67 N. Y., 199, is closely analagous. It was there held that a judgment in an action to set aside an assignment for the benefit of creditors adjudging the'assignment void, directing the assignor to account before a referee, and that a receiver be appointed to take charge of the assigned property, pay out of it the plaintiff’s j udgment, and hold the residue subject to the order of the court, is a final judgment reviewable by appeal.

The judgment must, therefore, be reversed, a new trial granted if plaintiff elects within sixty days after filing the remittitur in the court below to proceed with the action, and applies for leave to amend by bringing in the necessary parties. If such leave is not applied for or granted the complaint is dismissed, with costs in this court and in all courts; if leave to amend is granted, costs in this court to abide the determination of the supreme court as to the conditions upon which leave to amend may be granted.

All concur.


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    The People ex rel. The Municipal Gas Co. of the City of Albany, App’lt, v. Frank Rice, Secretary of State, Resp’t.

      (Court of Appeals,

      Filed April 18, 1893.)

    Corporations — Gas company — Amending certificate of, so as to allow USE OF ELECTRICITY — LAWS 1890, CHAP. 566, ART. 6, § 60.
    The business of a gas company and that of an electric light company is of the same general character, and Laws 1890, chap. 566, art. 6 permits one to exercise the powers of the other, whenever it is desired, by so stating in the certificate of incorporation, or in the case of an old corporation by filing an amended certificate.
    Appeal from order of the supreme court, general term, third department, affirming order denying a peremptory writ of mandamus requiring secretary of state to file an amended certificate enlarging- and extending the corporate powers and business of relator, a gas company, so as to enable it to manufacture and use electricity for light, heat and power.

      Marcus T. Hun, for app’lt; John W. Hogan, for resp’t.
   O’Brien, J.

The relator took proceedings to enlarge and extend its corporate powers and business so as to enable it to manufacture and use electricity for producing light, heat and power. It is conceded that the proceedings were regular if power exists for the accomplishment of that object in the manner attempted.An amended certificate, embodying the powers and objects sought to be attained, was presented to the secretary of state, who Reclined to file the same. The application was then made for a peremptory writ of mandamus requiring the secretary to file the certificate, from the order denying which this appeal was taken. The relator was incorporated as a gas company under chapter 37 of the Laws of 1848, and its business originally was confined to the manufacture of gas. The corporation was subsequently authorized by chapter 512 of the Laws of 1879, and chapter 73 of the Laws of 1882, to use electricity for illuminating purposes, and by the same statute a corporation formed for the purpose of producing electricity for light, heat and power, was authorized to use it for lighting streets, parks, dwellings, etc., and to make, use, lease or sell apparatus for generating, and to lay and use suitable conductors for the same. So that since the enactment of these statutes, a gas company has power to use electricity for illuminating purposes.

Chapter 688 of the Laws of 1892, § 32, authorizes any stock corporation, theretofore or thereafter organized under any general or special law, to amend its certificate and extend or alter its business and powers in two cases: (1) The purpose and powers-of such corporation may be so enlarged or extended as to include any purpose and powers which, at the time of such extension, had been conferred by law upon corporations engaged in a business of the same general character. (2) They could also be enlarged or extended to embrace any purposes or powers which might properly be included in the certificate for the formation of a corporation of the same general character under any general law. When the amended certificate was presented to the secretary of state, § 60 of article 6, chapter 566, of the Laws of 1890, was in force, which provides for the formation of corporations for manufacturing and supplying gas, and also for the manufacture and use of electricity for producing light, heat or power. If under that section either or both the objects may properly be included in the certificate for the formation of the corporations therein mentioned, then there was a general law authorizing the erection of corporations possessing all the powers that the relator sought to acquire, and the certificate should have been filed. The material parts of the section of the statute last referred to read as follows :

Three or more persons may become a corporation for manufacturing and supplying gas for lighting the streets and public and private buildings of any city, village or town, etc., or for manufacturing electricity for producing light, heat or power; and in lighting the streets, avenues, public parks and places and public and private buildings of cities,” etc.

The learned attorney-general insists that the objects and purposes of the corporations to be formed under this section are so separated by the disjunctive “ or,” that the certificate cannot combine all the powers or purposes therein specified. That a gas company must still be organized as before, and so with a company for producing electricity for light, heat or power. They must still be organized for one purpose or the other, and both purposes cannot be combined in the same certificate, and this construction, he claims, is supported by the explanatory words of § 162, chapter 566 of the Laws of 1890, which reads as follows:

“ The provisions of this chapter, so far as they are substantially the same as those of laws existing on April 30, 1891, shall be construed as a continuation of such laws, modified or amended according to the language employed in this chapter, and not as new enactments; and references in laws not repealed to provisions of laws incorporated into this chapter and repealed, shall be construed as applying to the provisions so incorporated, and nothing in this chapter shall be construed to amend or repeal any provisions of the Criminal or Penal Code.”

The chapter to which reference is here made was, no doubt, intended as a revision of pre-existing laws. But this section indicates that something more was also intended. The laws so revised were modified or amended according to the language employed. It is quite plain when all the provisions of the chapter relating to gas and electric companies are considered, that the legislature, in adopting the revision, intended to permit such corporations to amend the certificate in such a way as to authorize them to exercise powers and to enlarge the purposes and objects of the corporation beyond the limit within which they were restricted before.

The words “and ” and “ or," when used in a statute, are convertible as the sense may require. The substitution of the' one for the other is frequently resorted to in the interpretation of statutes when the evident intention of the lawmakers requires it Sedgwick on Stat. & Con. Law (2d ed.), Pomeroy’s note, 371; Hard castle’s Con. etc., of Stat. Law, appendix, 575, and cases cited; Wilberforce Statute Law, 130.

We think that the legislature, in enacting § 60 of art. 6 of chap. 566 of the Laws of 1890, intended to authorize the creation, of corporations empowered to exercise one or more of the powers and for one or more of the purposes or objects therein specified. The certificate to be filed may now include all the purposes or powers specified in the section, and thus both the powers of a gas company and an electric light company, as they existed and might be exercised before the revision of the statute, may now be combined in one corporation, and expressed in one certificate. This conclusion is strengthened by other considerations. , We have seen that prior to the revision of the statutes a gas company could exercise the powers of an electric light company, at least so far as to manufacture and use electricity for illuminating purposes, but if the contention of the learned attorney general be correct that privilege has been eliminated from the law as it now exists, as there is no way that a corporation, created as a gas company, can exercise such a power except by substituting the word “ and" for the word “ or ’’ in the statute.

It must be manifest that the legislature in passing the revision did not intend to curtail the powers or privileges of such corporations, and a construction of the statute which would lead to such a result should be avoided. One of the additional powers which the relator seeks to acquire by the amended certificate is to exchange its stock for that of an electric light company named. In other words, it was sought to merge the franchises and business of the two companies into one. By chapter 691 of the Laws of 1892, § 8, any two or more corporations organized under the laws of this state for the purpose of carrying on any kind of business of the same or of a similar nature which a corporation organized under that chapter might carry on, may consolidate into a single corporation as therein provided. Laws 1890, chap. 566, § 61, subd. 3. It is conceded that the relator may obtain the desired franchise in that way under a general law of the state, and while this consideration might not be deemed controlling in all cases of this kind, we see no reason in this case for giving the statute authorizing this class of corporations to be organized a construction that would deny to them the power to acquire by an original or amended certificate what it is admitted that they may obtain by consolidation. The business of a gas company and that of an electric light company is of the same general character, and we think that it was the intention of the statute to permit the one to exercise the powers of the other whenever it was desired by so stating in the certificate, or in the case of an old corporation by filing an amended certificate. For these reasons we think the relator was entitled to have the amended certificate filed.

The order appealed from should be reversed and the application granted.

All concur, Earl, J., in result.


author: Pryor, J.

text:
    John H. Sweetser et al., Resp’ts, v. William L. Cameron, App’lt.

      (New York Common Pleas, General Term,

      Filed March 15, 1893.)

    1. Appeal — Jurisdiction of the court of common fleas on appeal from THE CITY COURT.
    On appeal from an order of the general term of the city court affirming an order denying a new trial, this court has no jurisdiction to reverse on the ground that the verdict is against the weight of evidence.
    2. Same.
    While we have authority to reverse a judgment of the city court which appears without evidence to support it, the point must be presented by an appropriate exception on the trial.
    Appeal from judgment of the general term of the city court, affirming judgment on verdict and order denying new trial.

      J. Stewart Ross, for app’lt; Kneeland, Stewart & Epstein, for resp’ts.
   Pryor, J.

The learned counsel for the appellant quite misconceives the function of this court. Our appellate power in relation to the city court is identical and coincident with the revisory jurisdiction of the court of appeals over its subordinate tribunals; and so is limited to a review of errors of law suggested by appropriate exceptions. Keller v. Feldman, 49 St. Rep., 718; Walsh v. Schulz, 67 How., 186; Rowe v. Comley, 2 Civ. Pro., 424; 16 W. Dig., 343. Mistakes by the jury are bejmnd our competence to correct. Bell v. Bartholomew, 12 W. Dig., 33; McEteere v. Little, 8 Daly, 167; Farley v. Lyddy, id., 514.

It results, therefore, that, as to the weight of the evidence, we are concluded by the affirmance of the order denying the motion for a new trial.

Still, as a verdict without evidence involves error of law, we' may correct it; but, to the' exercise of the power, an exception presenting the question of the sufficiency of the proof to sustain the finding is an indispensable condition. Schwinger v. Raymond, 105 N. Y., 648; 7 St. Rep., 544. Here was. no motion for a non-suit or for a direction; and “ however unjust the verdict, this court is powerless to give relief.”

nevertheless, we have considered the evidence with care; and our conclusion on the merits of the case is in accordance with the decision of the jury.

A critical examination of the record discovers no error by the. court of prejudice to the appellant.

Judgment affirmed, with costs.

Bischoff, J., concurs.


text:
    Louis M. Howland, Resp’t, v. De Witt C. Bates et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 15, 1893.)

    Bills and notes — Defense—Ownership.
    In an action on a promissory note, where the plaintiff produces it and shows that he p iid a consideration, and the defendant gives evidence that it is the property of a corporation, but the receiver thereof disclaims all interest in the note, a verdict in plaintiff’s favor will not be disturbed.
    Appeal from judgment of the general term of the city court, affirming judgment on a verdict directed by the court and an order denying a new trial.
    Action on a note for $1,040.

      Thomas H. Wagstaff, Jr., for app’lts; Olin, Rives & Montgomery, for resp’t.

       Affirming 48 St. Rep., 642.

   Pryor, J.

At the close of the evidence each party requested a decision by the court in his favor, and neither asked the submission of any issue of fact to the jury. Thereupon the court-directed a verdict for the plaintiff. The only inquiry, therefore, upon the appeal is, whether the evidence in favor of the plaintiff be sufficient to sustain the verdict. Dillon v. Cockcroft, 90 N. Y., 649; Provost v. McEncroe, 102 id., 650; Daly v. Wise, 132 id., 306, 309; 44 St. Rep., 422.

The question upon which the event of the litigation turned was whether the plaintiff were the owner of the note in action. It was made by the defendants to their own order, and by them indorsed in blank. The possession of the note and its production by the plaintiff afforded a presumption of his ownership, Grabosski v. Gewerz, 44 St. Rep., 127, and this prima facie title was supported by positive testimony that the consideration" for it was paid by himself. On the contrary, the defendants gave evidence that it was the property of the International Manufacturing Company - but the receiver of that corporation appeared and disclaimed all interest in the note.

Obviously, the direction of the court is securely upheld by the evidence. The appeal is altogether without merit

Judgment affirmed, with costs.

Bischoff, J., concurs.


text:
    Samuel Corn et al., Appl'ts, v. Joseph Rosenthal, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 16, 1893.)

    Appeal — Second—Questions before the court.
    The deeision on a former appeal becomes the law of the case, and on a second appeal nothing is before the court but the proceedings subsequent to the mandate.
    Appeal from judgment of a district court

      Norwood & Coggeshall, for app’lts; F. R. Minrath, for resp’t.
   Pryor, J.

On a second appeal the court will not review or reversq a decision made on a prior appeal in the same case. Heffner v. Brownell, 75 Iowa, 341; Adams Co. v. Burlington, etc., R. R. Co., 55 id.,94. The decision on the former appeal becomes the law of the case, Doyle v. Wade, 23 Fla., 90; Goodman v. Walker, 30 Ala,, 482; Frisby v. Parkhurst, 29 Md., 58; Johnston v. San Francisco Sav. Union, 75 Cal., 134; and upon the second appeal nothing is before the court for adjudication but the proceedings subsequent to the mandate. Fortenberry v. Frazier, 5 Ark., 200; 39 Am. Dec., 373. An opinion of the appellate court determining the case upon two distinct and sufficient grounds is to be treated, when cited as authority, as decisions upon both grounds, not as dicta on either. Bates v. Taylor, 87 Tenn., 319.

It is sought, by the present appeal, to reverse the judgment because of the admission of parol evidence claimed to be repugnant to the terms of a written agreement. But, on a previous appeal to this court the precise point was presented; and the adjudication was in favor of the competency of the evidence. Corn v. Rosenthal, 48 St. Rep., 674.

True, the court also decided that the justice erred in withholding the issues from the jury; but, nevertheless, the adjudication on the question of evidence at the former trial stands as the law of the case; and we perceive in the return before us no allegation of error not passed upon on the prior appeal. e The evidence on the trial under review varied in no essential circumstance from the evidence at the first trial.

Although the question now agitated be of difficult and doubtful solution, we are concluded by our former determination. The appellant’s remedy was by an application for a re-argument of the original appeal. Windsor v. Cobb, 74 Iowa, 709.

Judgment affirmed, with costs.

Bischoff, J., concurs.


author: Giegerich, J.

text:
    James Cunningham, App’lt, v. Elias T. Hatch, Annie L. Hatch et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed March 16, 1893.)

    Contempt — Restitution of deposit to discharge mechanic’s lien withdrawn UNDER JUDGMENT BY DEFAULT.
    Where a deposit to discharge a mechanic’s lien is withdrawn upon a default being taken in an action to foreclose the lien, and the court, upon opening such default, orders the restoration of the deposit to the custody of the clerk, a disobedience of such order may be punished as for a contempt.
    Appeal from an order of the special term, denying plaintiff’s motion to punish Annie L. Hatch, one of the defendants, for contempt in refusing to obey an order of this court entered July 16,1890.
    On the 1st day of April, 1889, a mechanic’s lien was filed by the plaintiff against the property of the defendants. On the 15th day of July, 1889, the lien was discharged by deposit with the county clerk. On or about March 12, 1890, the plaintiff commenced an action to foreclose the lien. On the 4th June, 1890, while the case was on the equity calendar of this court, a default was taken, and the amount deposited with the county clerk was withdrawn. On the 16th day of July an application was made to open said default and vacate the judgment entered thereon, which was granted, and the defendants were ordered to restore the deposit to the custody of the county clerk. The deposit was made by Annie L. Hatch, and she received the same when withdrawn. On the _6th November, 1890, Annie L. Hatch was personally served with a certified copy of the order opening the default and requiring the money withdrawn to be restored, together with a notice that she forthwith return to the custody of the county clerk the sum of money withdrawn. The case has since been tried before Judge Bookstaver, who, on the 17th February, 1891, handed down a decision holding that the plaintiff had a lien against the property described in the complaint, that it had been superseded by the deposit with the county clerk, and that the said lien was transferred to and existed against the sum of money in the custody of the county clerk. The defendants are insolvent, and an ordinary judgment against them would be uncollectible. Thereafter, an application was made at special term, Judge Bisclioff presiding, to punish the defendant, Annie L. Hatch, for contempt, which was denied solely for want of power, and an order to that effect was entered on the 29th December, 1892, which is the order appealed from. The other facts, pertinent to the question under consideration, are stated in the opinion.

      A. C. Palmer, for app’lt; Royal S. Crane, for resp’ts.
   Giegerich, J.

The only question presented by this appeal is whether the defendants can be punished for a contempt by reason of their disobedience of the order requiring them to return the deposit to the county clerk, which was affirmed on appeal. Cunningham v. Hatch, 45 St. Rep., 685. The learned judge who presided at the special term where the order appealed from was made assumed that the practice governing the restitution of moneys obtained by means of a judgment or order which is subsequently reversed or set aside applied to the deposit in question; and he accordingly held that the latter was but money due Upon an implied contract, and that under the provisions of § 16 of the Code of Civil Procedure restitution thereof could not be compelled by proceedings to punish as for a contempt. The case of Forstman v. Schulting, 42 Hun, 643; 4 St. Rep., 463, is cited in support of this ruling. In that case an attorney received moneys under an erroneous order, which was subsequently reversed; he several times promised to repajo them; but failed to do so. On a motion made to punish him for contempt, the court held that where money has been received under an erroneous decision the party receiving it is equitably bound to refund it, and the law will imply a promise on his part to pay it over, as it will ordinarily in cases where one person receives money belonging to, or for the use of another; and that the remedy for the case was the issuance of an execution pursuant to § 779 of the Code of Civil Procedure. The case of O'Gara v. Kearney, 77 N. Y., 426, is also relied, upon by the respondents to sustain the order appealed from. In that case the order was dismissed with costs, which were voluntarily paid by the attorney. The judgment was afterwards set aside and the defendant was directed to pay the costs to the plaintiff, and in default of payment he was adjudged guilty of a contempt. On appeal this was held to be unauthorized and void; and it was further held ,that the case came clearly under the provisions of § 1240 of the Code of Civil Procedure, which relates to the enforcement of a judgment by execution, and not under § 1241, which prescribes in what cases a judgment may be enforced by punishment for disobeying it; because the judgment directed payment of money to the party and not to the court or an officer of the court.

These cases are distinguishable from the one before us. There the payment of money was directed after the rights of the parties had been finally adjudicated, while in the case at bar the defendants were required to return the deposit to the county clerk to await the determination of the rights of the parties to the action. There is a wide distinction between an order requiring the payment of money to a party, and the return of a deposit to the officer who is the legal custodian thereof, which is recognized by § 1241 of the Code of Civil Procedure. The rule that the law implies a promise to repay moneys paid upon a judgment or order which has been reversed or set aside is founded on justice and reason. It does not obtain, however, until the j udgment or order has been reversed. Haebler v. Myers, 132 N. Y., 363; 44 St. Rep., 403. Applying these rules to this case, it is clear that a promise, either express or implied, cannot be inferred, for the reason that the return of the deposit was required before the rights of the parties interested therein had been determined, and which are still awaiting final determination.

How it is not even pretended by the respondents that the order directing a return of the deposit can be enforced by execution against the property of the defendants. As it cannot, what remedy has the appellant for the enforcement of the order in question ? If the contention of the respondents prevail, then the appellant has absolutely none until the entry of final judgment in the action — in other words, all proceedings for the enforcement oí the order are suspended until then. Thus dishonest litigants would not only be tempted to appropriate a “ deposit ” to their own use; but would be encouraged in their refusal to obey an order made for the return thereof. It would be manifestly unjust to those «entitled to the fund to determine that, until a final judgment had been entered herein, the court is powerless to prevent the defendants front converting t > their own use the deposit in question, the withdrawal of which, the learned judge found, may defeat, impair, impede or prejudice the right or remedy of the plaintiff in this action. And it would, indeed, be a reproach to the law if it were not in the power of the court to return the deposit to the custody of the proper officer.

Fortunately for the honor of our system of jurisprudence, the law affords ample remedy. Chief Judge Ruger, in delivering the opinion of the court in Forstman v. Schulting, 108 N. Y., 110; 13 St. Rep., 483, well says: “Both paroles and attorneys, who, through the aid of the; court, have come into possession of property or money during a litigation, which subsequent proceedings in the action show was either wrongfully acquired or wrongfully retained, may be compelled to restore it to the rightful owner bv order and ■attachment to enforce such restoration.” Section 14 of the Code of Civil Procedure prescribes: “A court of record has power to punish by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prejudiced, in either of the following cases. * * * 3. A party to an action or special proceeding, an attorney, counsellor or other person, for the non-payment of a sum of money ordered or adjudged by the court to be paid in a case where by law execution cannot be awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court.” The order for the return of the deposit is a mandate, Code of Civ. Pro., § 3343, sub. 2; and the case at bar comes clearly within the provisions embraced in the last sentence of subdivision 3 of § 14 of the Code.

We have carefully considered the case of Haebler v. Myer, supra, and find nothing therein which, in our opinion, affects our determination of the question under consideration.

The order should, therefore, be reversed, with costs.

Pryor, J., concurs.


text:
    Augustus H. Vanderpoel, Assignee, App’lt, v. John J. Gorman, Sheriff, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 20, 1893.)

    1. Assignment fob creditors — Foreign corporation.
    . A general assignment for the benefit of creditors, by a foreign corporation, executed in this state and of property in this state, is, as to such property, ineffectual to pass title, as against an attaching creditor of the corporation.
    2. Same — Insolvency.
    The provision of the Revised Statutes making unlawful an assignment by insolvent corporations applies to assignments in this state by foreign corporations.
    Motion by appellant for new trial, on exceptions directed to be heard at general term.

      Gibson Putzel, for app’lt; W. E. Stillings (S. F. Kneeland, Roscoe H. Channing and John J. Thomasson, of counsel), for resp’t.
   Pryor, J.

We are invited, by the interesting arguments of counsel, to the consideration of important problems touching the capacity of corporations and the powers of their directors, but we deem the discussion of them unnecessary, since, in our judgment, the case lies in a narrow compass, and may be disposed of upon a point not debated at the bar.

The action is in trover, for the attachment by defendant of chattels claimed to be the property of the plaintiff by virtue of an assignment for the benefit of creditors. The assignor is a New Jersey corporation, but its office and place of business are in this state; the assignment was . executed in this state, «nd in conformity with its laws; the property levied on was in this state; and, for anything apparent to the contrary, was attached at the suit of a domestic creditor.

On the trial the plaintiff essayed to establish title to the property in litigation by proof of the assignment; but, on objection, the evidence was excluded because of the alleged invalidity of the assignment. The objection was sustained and the evidence excluded, upon which ruling, due exception being taken, we are to determine whether the paper offered in proof was a valid instrument, effectual to pass the property it purported to transfer.

The decision of the point turns upon the application to a foreign corporation of that provision of the statute law of New York which declares it “ unlawful ” for “ any incorporated company to make any transfer or assignment in contemplation of insolvency.” That such was the nature of the assignment in question was assumed on the trial and in the argument of the appeal

The contention of the appellant is that the provision applies only to domestic corporations, and the respondent maintains the contrary proposition.

As we suggested to counsel on the argument, the question is not whether it be competent to the legislature of New York to cancel or curtail the charter powers of a corporation created by another state, since our laws have no extra territorial operation; such an effect clearly transcends their scope; but the true inquiry is rather, whether in the exercise of its sovereignty over its own domain it be competent to the state to prohibit a particular disposition of personal property within its limits by a foreign corporation.

That a foreign corporation may not, of right,, transact business in the state; that it may be excluded from our borders; or, if admitted, be restricted in its acts and operations by such limitations and burdens as the legislature may choose to impose ; that its presence in the state and its faculties in the state are allowed purely ex comitate, are now elementary propositions in American jurisprudence. The People v. Fire Association, 92 N. Y., 311, 325; Paul v. Virginia, 8 Wallace, 168; Hampson v. Weare, 66 Am. Dec., 121, note.

No matter, therefore, what may be the charter powers of a foreign corporation, or the range of its action within its domicil, the legislature of New York may still say that, in this state, it shall not exert a given power nor do a specific act; for example, that a foreign corporation shall not, in this state, make an assignment for the benefit of creditors. “ Unless the legislature forbids, foreign corporations can come here as freely as natural persons, and exercise here all the powers conferred upon them by their charters, subject to the same limitations imposed upon natural persons, that is, they can do no acts in violation of our laws, or of our public policy." Earl, J., in Hollis v. The Drew, etc., 95 N. Y., 166, 175; Rapallo, J., in Ellsworth v. R. R. Co., 98 id., 553, 559. “A foreign corporation may make and enforce within this state contracts which by i ts charter it is competent to enter into, and which are not forbidden by the laws or contrary to the policy of this state." Denio, J., in Bard v. Poole, 12 N. Y., 495. “ We exercise the right, which exists in all-sovereignties, to regulate and restrain foreign corporations in doing business here under charters from other governments.” Porter, J., in Merrick v. Van Santvoord, 34 N. Y., 208, 212. “ Hence a devise to a foreign corporation, which it is authorized by its charter to take, is void if not authorized by a statute of this state.” White v. Howard, 46 N. Y., 144; Fire Department v. Noble. 3 E. D. Smith, 440; Morawetz on Corp., §§ 661-665, 970-972; Taylor on Corp., §§ 383, 384, 400, 480; Field on Corp., Wood’s 2d ed., 347, 488, 490; Cooley on Taxation, 2d ed., 57, 100, 387.

Hitherto the argument has proceeded upon the fact that the assignment in controversy was made in this state; but, though executed abroad, and there valid, it would not be enforceable here if repugnant to the policy or positive statutes of the state. King v. Sarria, 69 N. Y., 24; Sondheim v. Gilbert, 117 Ind., 71. And, while the general rule is that personal property, in its disposition and transfer, is governed by the law of the domicil of the owner; still such disposition or transfer “ is not valid in another state where the property is in fact situate, if in conflict with the interests of that state or its citizens.” Peckham, J., in Guillander v. Howell, 85 N. Y., 657, 658; Earl, J., in Warner v. Jaffray, 96 id., 248, 254.

It being competent to the legislature of New York to forbid a general assignment in this state by a foreign corporation, the question occurs, does the provision of the Revised Statutes, already cited, apply to such a corporation ?

Nothing in the language of the act indicates a contrary intention and effect. Its terms are absolute and without limitation: “ It shall not be lawful for any incorporated company to make an assignment.” By what right may the court say that the restraint is imposed only upon our own companies, while foreign corporations are allowed a limitless latitude in the disposition of their property ?

_ It may not be answered that the policy of the interdict is predicable only of domestic corporations; so clearly the contrary, rather, that we perceive a special reason for forbidding general assignments by foreign corporations. They might so assign as to exhaust their assets in payment of foreign creditors; or if no preference be declared, still our own citizens may be defeated of satisfaction by the participation of foreign creditors in the only accessible funds of the insolvent company.

Upon the language of the statute, at all events, the legislative intent is clear, beyond mistake, to restrict all corporations; and we have no authority to maim or modify the mandate of the lawmaking power. “A general law of the state prohibiting corporations from exercising particular powers will operate upon foreign corporations, not because the act binds such corporations exproprio vigore, but for the reason that their exercise of such powers here would violate the public policy of the state indicated by the general restraint upon our own corporations.” Andrews, Ch. J., in Matter of Prime, 49 St. Rep., 658, 666. By the act of 1850 it is prescribed that “ no corporation shall hereafter interpose the defense of usury in any action;” and the courts never hesitated, upon the generality of the language, to extend the operation of the statute to foreign corporations. Rosa v. Butterfield, 33 N. Y., 665; Union Bank v. Wheeler, 60 N. Y., 612.

Our conclusion is that, by the terms of the enactment, which confine its effects to no class of corporations and denounce as “unlawful ” the thing forbidden, the assignment in question is absolutely void as to the property in dispute, and so affords no foundation for the action. Exceptions overruled, and judgment directed for defendant, with costs.

Bischoff, J., concurs.


text:
    The New York Real Estate & Building Improvement Co., App’lt, v. Thornton N. Motley, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Landlord and tenant — Eviction.
    A lessee of rooms in a building, not destroyed but so injured by fire as to be untenantable, is, after due surrender, discharged from his covenant for rent by operation of the act of 1860.
    2. Same — Lease.
    A clause in a lease which provides for an apportionment of rent in the event of a partial occupancy in consequence of injury to the premises, has no application where, because of such injury, the premises are totally ununtenantable and wholly unoccupied. 5
    Appeal from judgment of the general term of the city court, affirming judgment on verdict.
    Action on a lease under seal for rent of rooms in a building accruing after a fire which did not destroy the premises, but rendered them wholly untenantable during the period of repair.
    The lease contained the following provision: “It is further agreed by and between the parties hereto that if without fault, neglect or improper conduct of the party of the second part, his agents, servants or tenants, the premises hereby leased, or the building, shall be damaged by fire, the elements, or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs; but, if the building shall be so damaged or destroyed as in the judgment of the parties of the first part to require to be rebuilt, then, from the time of the happening of said events, or either of them, this lease and the term hereof shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid up to such time.”

      N. B. Sanborn, for app’lt; David Leventritt, for resp’t.

       Affirming 49 St. Rep., 216.

   Pryor, J.

The event of the trial depended upon two questions ; one of law for decision by the court, and one of fact for determination by the jury.

The issue of fact was, whether there had been such a surrender of the premises as satisfied the requirement of the act of 1860 ? We are of opinion that the evidence sufficed to justify the jury in finding the affirmative proposition. Zimmer v. Black, 37 St. Rep., 312; Fleischmann v. Toplitz, 47 id., 892.

The question of law was, whether the fire clause in the lease covered the particular casualty in controversy, so as to prevent a discharge of the defendant from further payment of rent. We concur with the court below in its adjudication upon the point.

The clause provides for two contingencies only: for such an injury to the edifice as should require it to be rebuilt, in which event there was to be a total cessation of rent; and for such an injury as permitted but a partial occupancy, in which event there should be an apportionment of rent. Here, however, is a third alternative, namely: an injury which, while not necessitating rebuilding, did not allow of even a partial occupancy, but rendered the premises totally untenantable during the period of reparation.

If the word was that the rent should be suspended, the proposition might be plausible that the case is within the purview of the lease; but a stipulation for a proportional payment for a partial occupancy is clearly no provision for an event which prevents any and all occupancy. Evidently the actual contingency was never in the contemplation of the parties.

Assuming this to be so, the appellant contends that still the case is not covered by the act of 1860; and that hence the respondent did not escape his obligation for rent by abandonment of the premises.

It is an inveterate principle of the common law, prevalent in this state until 1860, that an absolute covenant for rent is unimpaired by the destruction of the premises, no matter by what inevitable and irresistible catastrophe. 3 Kent’s Com., 465. But the rule did not apply to a lease of rooms in a building; for the reason that by the destruction of the building the demised tenement ceased to exist. Graves v. Berdan, 29 Barb., 100; 26 N. Y., 498. Hence the inference, that a tenancy of rooms, not being within the mischief contemplated by the statute, is not within the remedy.

But since “ it is only where the estate is gone and the thing demised no longer exists ” that the tenant is released from his covenant for rent, 29 Barb., 102, it follows that a mere injury without total destruction of the rooms let does not operate such a release. Izon v. Gorton, 5 Bingh. N. C., 501. Now, it is precisely for this case that the act of 1860 provides, saying that “ the lessees or occupants of any building which shall be so injured1, etc., etc., shall not be liable to pay rent, etc.”

In reason, therefore, the statute applies to the case before us ; and so are the authorities. Butler v. Kidder, 87 N. Y., 98; Vann v. Rouse, 94 id., 401, 404; Tallman v. Murphy, 120 id., 345; 31 St. Rep., 483.

As by concession the injury to the demised premises totally precluded occupancy, and as the verdict settles that the tenant seasonably surrendered, he was exonerated from liability for rent without more; and the learned trial judge properly refused to submit an immaterial issue to the jury ; namely, whether it was necessary to rebuild the edifice.

■ From the ground upon which the judgment is sustained, it follows that the exceptions suggest no error of prejudice to the appellant.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.