author: Freedman, J.

text:
    JOANNA A. L. SLUYTER, Plaintiff and Appellant, v. GEORGE E. WILLIAMS, Defendant and Respondent.
    In action to recover the possession of personal property wrongfully detained, but which came lawfully into defendant’s possession, it is necessary for plaintiff to prove a demand before suit brought.
    Formal errors in the entry of judgment must be corrected on motion at Special Term. The General Term will not, upon appeal from the judgment, make such corrections in the first instance.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided May 11, 1869.]
    This case was tried before Chief-Justice Robertson and a jury, and was brought to recover goods and chattels belonging to the plaintiff, and alleged to be wrongfully detained by the defendant.
    The defendant admitted the possession of the goods, but alleged that they were deposited with him by one William B. Sluyter, the husband of the plaintiff, he agreeing to pay forty dollars per month for the storage of the same. Defendant further alleged that no part of said money due for storage had been paid or tendered by said William B. Sluyter or the plaintiff, and that he was ready to deliver the same upon payment of his charges for storage. Upon the plaintiff resting her case, the defendant’s counsel moved to dismiss the complaint upon’ the ground that no demand for the goods had been made upon the defendant by the plaintiff.
    The Court granted the motion, to which ruling the plaintiff excepted:

      Mr. George W. Stevens for appellant.

      Mr. A. H. Reavey for respondent.
   By the Court:

Freedman, J.

The defendant lawfully came into possession of the goods and chattels claimed by the plaintiff in this action, and consequently he could not be guilty of an unlawful detention, except after due demand, and a refusal on his part, subsequent to said demand, to deliver. It was incumbent on the" plaintiff to prove a sufficient demand "as a part of his case, and as the evidence is totally insufficient upon this point, no error has been committed upon the trial in dismissing the plaintiff’s complaint. In the case relied on by the plaintiff (6 Hill, 613), the goods had been wrongfully taken, and for that reason no previous demand was held to be necessary.

If the judgment entered is irregular in form, the plaintiff’s remedy is by motion at Special Term, and the General Term will not, upon appeal, make the corrections in the first instance.

The judgment appealed from should be affirmed with costs.


source: Caselaw Access Project

author: Monell, J. McCunn, J.

license: Public Domain

text:
    CATHARINE McGARRY, Administratrix, &c., Plaintiff and Appellant, v. THE BOARD OF SUPERVISORS, &c., Defendants and Respondents.
    A question relating to a mere irregularity cannot be examined on appeal from a judgment. Irregularities in the proceedings can be corrected only on motion made at Special Term.
    Where, on an appeal from a judgment, it was objected that a consent to a substitution of a party defendant, made by the attorney of record, was ultra vires, the Court is bound to assume that the consent was sufficient; and a judgment should not be reversed on that account. Per Monell, J.
    A motion for a reargument in such a case should not be granted. The Court will not order a reargument where it would impugn the correctness of a former decision. That would be to allow, in effect, an appeal from one set of judges to another set of judges of the same Court. And such a practice would impair, if not wholly destroy, the harmony which ought to exist in courts of justice.
    The cases stated in which a reargument of a case on appeal may be allowed.
    Before Monell, McCunn, and Freedman, JJ.

      [Decided May 14, 1869.]
    This was a motion for a reargument of an appeal.
    The action was brought originally against the Mayor, &c., of the City of New York to recover damages for the death of the plaintiff’s intestate, occasioned by the alleged negligence of the servants of the defendants. The Mayor, &c., appeared, and answered the complaint.
    The issues came on for trial before Mr. Justice McCunn and a jury, when the plaintiff’s counsel moved to amend the summons and complaint, “ pursuant to a consent signed at the office of the Corporation Counsel,” by substituting the Board'of Supervisors of the County of New York, as defendants, in the stead of the Mayor, &c. The motion was granted, and an order in form entered by the Clerk.
    The trial then proceeded, and resulted in a verdict against the defendants. An appeal was taken to the General Term, and a case made presenting the proceedings on the trial.

      The General Term reversed the judgment and vacated the order allowing the amendment, on the sole ground that the consent of the Corporation Counsel was ultra vires and void.

      Mr. James R. Whiting for appellant.

      Mr. Richard O’Gorman for respondent.
   By the Court:

Monell, J.

It is entirely clear to me that the ground upon which the General Term placed its decision was not presented by the appeal, and could not properly be considered. There teas no appeal from the order allowing the amendment, nor any objection made to substituting the Supervisors as defendants. Upon an appeal from a judgment, only questions of law can be raised, and such questions must be presented in the form of objections and exceptions.

Whether the defendants have been properly summoned in the action, cannot be examined on an appeal unless the objection was taken below, and then the objection and exception must appear in the case.

If in this case the consent of the Corporation Counsel was ultra vires, then undoubtedly the Supervisors were not properly in court, and all the proceedings, including the verdict and judgment, were wholly void; and the remedy was by motion at Special Term, to vacate all the proceedings. Such motion can be made at any time now, on proof that the Supervisors have not been summoned to defend the action, and, in my judgment, it is the only remedy they have.

The printed case contains no objections or exceptions, nor the statement of any fact, which could warrant the General Term in reversing the judgment, on the ground that the amendment was allowed upon insufficient authority. As the summoning of the defendants relates to the regularity of the proceedings, it will be assumed that it is regular until it otherwise appear. Therefore, in the case, as it was presented to the General Term, the Court, it seems to me, was bound to assume, in the absence of any objection to the validity or sufficiency of the consent, that it was sufficient, and should have left the defendants to their motion to have the judgment vacated.

But the General Term decided otherwise, and held, in a written opinion, that the question was before them, was sufficiently presented by the appeal papers, and might be considered. It was examined, and after deliberation the verdict and judgment set aside.

The question, therefore, is whether, under these circumstances, another General Term will order a reargument, the effect of which will be to open the appeal for a reexamination, and place it in the power of the Court to reverse the decision already made.

The grounds upon which a reargument may be applied for are fully stated in the cases of Newell v. Wheeler (4 Rob., 190), and of Trinity Church v. Higgins (id., 372), and in the ease of Mount v. Mitchell (32 N. Y. R., 702). Those grounds are of a nature that the Court, entertaining the motion, need not impugn the correctness of a former decision made upon the facts and the law as it was before the former Court.

For, as was said in Trinity Church v. Higgins, supra, it would be indecorous to allow what would be substantially an appeal from one set of judges to another set of judges of the same Court. Hnless, therefore, it is alleged that the former Court overlooked some material fact or statute, or failed to notice some important legal question or recent decision, it would be subversive of every good end to subject its- decisions to a new examination by a different set of judges. Indeed it would greatly impair, if not wholly destroy, the harmony which ought to exist in courts of justice, and which alone can render their administration effective and useful.

Should we grant the motion of this case we should, in effect, say that the former General Term made an erroneous decision upon a question which they had as much right to say was properly and sufficiently before it as we have to say that, in our judgment, it was not properly or sufficiently before it.

The result would .be that one term of the Court would reverse the decisions of another term, and the administration of justice would become a by-word and a reproach.”

But the plaintiff is not without a remedy. An appeal can be taken to the Court of Appeals, and the error, if there be any9 corrected there. Should the plaintiff deem it advisable to have it corrected in that way, a reversal of the decision of the General Term, and an affirmance of the judgment entered on the verdict, would still leave the question of the regularity of the proceedings to bring the defendants into court to be presented on a motion to set the proceedings aside; and if the Court, on such motion, should decide that the consent of the Corporation Counsel-was ultra vires, the judgment and verdict would fall to the ground.

The motion for a reargument should be denied.

McCunn, J.

(dissenting). The motion was for a reargument, and such motion is addressed to the discretion of the Court in the exercise of its equitable power to interfere to prevent a failure of justice.

If the case were fully .and fairly presented and considered, and deliberately decided, and no circumstance of surprise or fraud or mistake appear in the affidavit, the Court will not interfere merely to afford the party moving another chance of success. But the affidavit here discloses a signal instance of surprise to the plaintiff, and shows further that, except the Court interpose at this stage of the cause, and in the manner solicited, an irreparable failure of justice may occur.

The judgment in favor of the plaintiff was reversed on the ground that the Court had no power to allow amendment of the summons and complaint substituting the Board of Supervisors as defendants instead of the Mayor, Aldermen, and Commonalty.

But the legal representative of the Board, and of the Mayor, &c., consented to the substitution, and the plaintiff’s counsel, contemplating his official character, had a right to suppose that such consent was within the authority of the Corporation Counsel. To have distrusted his authority would have implied au imputation on his integrity, and, since he gave the consent and thus betrayed the plaintiff into a particular course of conduct, he would be estopped on familiar principles to dispute the authority he represented himself to possess. This was the rule held by this Court in the case of Parker v. Union Life Insurance Co. (N. Y. Transcript of 10th March, 1869). See also, the case of Wolf v. Security Fire Insurance Co. (39 N. Y., 349), where the same doctrine is propounded.

The rights of third parties are involved, and we must decide the motion independently of the equivocal action of the learned Assistant Corporation Counsel. The plaintiff indisputably stands upon an unimpeachable equity. The time was when she might have retreated from her position in pursuance of the regular practice, and have regularly brought the proper party defendant before the Court, to wit, the Corporation of the City of New York. She was betrayed by the assent of the ostensible law officer of the city, and of the Board of Supervisors, into an exceptional amendment of the process and pleadings; and if she now be denied an opportunity to recall her improvident acquiescence she may never have a chance fairly to contest her claim, because the time within which she had a right to bring her action against the corporate authorities has elapsed. It appears by the affidavit of her attorney that the Assistant Corporation Counsel not only gave consent to the amendment, but forbore to intimate a doubt as to his authority so to consent, until the validity of the judgment was denied on appeal.

It appears further, that the plaintiff’s attorney, naturally embarrassed by this unexpected development of the Corporation Counsel, omitted to present the effect of section 173 of the Code of Procedure as bearing on the amendment in controversy. Bow this section of the Code declares that before or after judgment, in furtherance of justice, &c., &c., the Court can amend any pleading or process, by adding or striking out any part, or correcting a mistake in the names.” And this section, I hold, covers almost all cases which can arise, and most certainly covers the one at bar. In a court such as this—a court of general jurisdiction—it is unnecessary to prove a service of process on defendants, or to prove that they appear in court. The presumption -always is, that the judgments rendered by such courts acquire jurisdiction over the person.

This is the doctrine laid down in Cowen & Hill’s notes, 905 and 906, and also in the case Hatcher v. Rocheleau (18 N. Y., 89 to 95).

This Court, in a case of this kind, is bound to assume that it had jurisdiction over the persons, and the subject-matter in dispute.

Again, no questions can be raised on this appeal except such as are presented by the exceptions, and no question involving a point of jurisdiction can be urged unless presented by the exceptions appearing in the ease. This rule being well settled and, as no such exceptions appear in this case, it is quite apparent that upon the former hearing a mistake was made' in allowing the point to be raised without such exceptions.

Indeed, no question of regularity or jurisdiction can be raised for the first time on appeal under the operation of this rule (Willis v. Waite, 25 N. Y., 577). Nor can I conceive how the question of jurisdiction can be raised at all. The only point that can be made is an unwarranted question, involving the right of this Court to exercise its powers; it has been brought into discussion, and the Court has ruled that it has no power to make an order in this action amending the process and pleadings, by striking out the Corporation of the City of New York and substituting the Board of Supervisors as defendants. How the ruling is palpably erroneous, for it is a direct subversion of statutory powers conferred upon the Court. It not only tends to warp them, but in fact abolishes them.

The -order in question was a simple order, of amendment made pursuant to a statutory power which enables .this Court, at any time during the pendency of the action, to amend any pleading by adding or striking out the name of any party, and the order granted herein was entirely within the scope and provision of that section, which, as I have said before, is broad enough to

cover almost every conceivable case which can arise and call for the interposition of the Court; this rule was applied in the case of Sherman v. Fream (8 Abb., 33). Hay, more of our courts have held, and it is the correct theory, that section 173 enables courts to bring within their jurisdiction any person, even involuntarily, and substitute him in place of another defendant, where it appeared that the action could not succeed against one defendant, by striking out his name and substituting another in his stead, and directed the answer of the defendant, whose name was stricken out, to stand as the answer of him brought in, and thus wielding jurisdiction over him without the service of process upon him (Fuller v. The Webster Fire Ins. Co., 12 How., 293).

But that question does not arise in this ease; the order made herein was made upon consent and in open court. The Judge below, therefore, acted upon a solemn agreement, and by making it a part of the iiles of the Court, the learned Justice simply gave it vitality by and at request of both parties. After the amendment was granted, upon the consent, the Counsel for the Supervisors showed an unreserved submission to the jurisdiction of this Court; he goes on and litigates the issues raised by the pleadings as amended by the order. He joined issue upon the question of negligence, and appeared and tried the cause; this alone, without a consent, would give the Court jurisdiction over their persons entirely sufficient to enable it to render judgment against them.

Under these circumstances, and believing that the former Court misunderstood the position of the parties, the plaintiff has the clearest and strongest, possible equity to a reargument.

It is urged by my learned brethren, that to grant a rehearing in this case might open the door for confusion; but where the mistake in law is so glaring, I think it is the duty of the Court promptly, no matter what the consequence may be, to correct the error if it lie in their power this power we have), instead of subjecting this widowed litigant to the delays of an appellate court.

I am for correcting the error on the spot.


text:
    JOHN M. CLARISSEY, Plaintiff and Appellant, v. THE METROPOLITAN FIRE DEPARTMENT, Defendant and Respondent.
    The Metropolitan Fire Department of the cities of New York and Brooklyn is a corporation, capable of being sued for injuries occasioned by the negligence of its agents or servants.
    Before Monell, McCunn, and Freedman, JJ.

      [Decided June 11, 1869.]
    Demurrer argued at Special Term, before Chief-Justice Robertson.
    The complaint alleged that the defendant was created under an act of the Legislature, entitled “An act to. create a Metropolitan Fire Department, and to establish a fire department therein.” That the defendant owned and operated, worked and managed a certain fire steam-engine. That the plaintiff being lawfully in the public street, and the defendant then and there operating, and-causing to be operated, worked, and managed the said engine, the boiler thereof did burst and explode, by reason and because of the faulty, unsafe, and unsound materials of which the same was constructed, and the careless, faulty, unsafe, unsound, and unskilful manner of the building thereof, and the carelessness and negligence of the defendant, its agents and servants in that behalf, in the operating, working, and managing said engine, by means of which bursting the plaintiff was injured.
    The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.
    The demurrer was sustained at Special Term, and the plaintiff-appealed.

      Mr. William H. Arnoux for appellant.
    Bodies created for public purposes are, in their corporate capacity, liable to make compensation for damages sustained by individuals from the wrongful or negligent acts of their servants or agents, in the course of their employment (Mersey Dock Trustees v. Gibbs, L. R., 1. H. of L., 93). Such liability can be enforced by action at law (Constitution N. Y.; Gibbs v. Trustees of Liverpool Docks, 3 Hurls. & Norm., 164; Mersey Dock Board v. Penhallow, supra). The defendant is a corporation. The old Fire Department was a corporation (Fire Department N. Y. v. Kip, 10 Wend., 266), and the present Department is vested with all its rights and privileges (Laws 1865, p. 397, sec. 5). The act of the Legislature creates it, independently of the corporate authorities of the city of New York (People v. Booth, 32 N. Y., 397). The Commissioners are trustees, and the department a public board, and therefore a corporation. They possess every power, and have every insignia of a corporation. The Board was erected and is controlled by the sovereign authority only (1 Blk. Com., 500). It is perpetual (ib., 502). The Commissioners have the power of assembling at pleasure (ib.). They have succession, a corporate title, and a corporate seal. They have capacity to sue.
    If the defendant is a corporation, the action can be maintained without any allegation being embodied in the complaint that such is the fact. Suing the board by its title is sufficient. Such an omission is no ground for a demurrer (Stoddard v. Onondaga, Am. Conf., 12 Barb., 373; Lighte v. Everett Ins. Co., 5 Bosw., 716).

      Mr. Waldo Hutchins for respondent.
    No action will lie against these defendants. They are not a corporation, but simply a board of public officers created by law, and charged by the State with the simple function of extinguishing fires in the city of New York (Laws 1865, chap. 249).
    They are not even a quasi corporation; they have no succession, and no corporate property whatever. Even if they are a quasi corporation they cannot be sued; because no action will He against a quasi corporation unless expressly given by statute (Angell & Ames on Corporations, sec. 629; Appleton v. Water Commissioners City of New York, 2 Hill, p. 432; Gardner v. Board of Health of the City of New York, 6 Seld., p. 410; The People v. The Supervisors of Monroe, 18 Barb., p. 573; Adams v. Wiscasset Bank, 1 Green (M.) R., p. 361; Russell et al. v. Men of Devon, 2 Term Report, p. 669).
    They cannot be made liable as a corporation, unless they have funds out of which to satisfy the liability (The Mersey Dock Trustees v. Gibbs, and the same v. Penhallow and others; 1 House of Lords R., pp. 99,107,108,110).
    A judgment against the defendants for money would bind no one, would not be a lien upon any real property, and could not be collected. They are the mere custodians of the property in their possession, the whole of which belongs to the city of New York (Laws 1865, chap. 249).
    The money which they are authorized to expend in no sense belongs to them. It is raised by tax by the Board of Supervisors of the City of New York; is paid into the treasury of the State, and is drawn out by the Treasurer of the Board, “to be used by him for the purposes defined in the act aforesaid.” They are authorized to. pay costs, expenses, and judgments in suits “ instituted and maintained by them,” but not in suits brought against them.
   By the Court:

Monell, J.

It is claimed, in support of the demurrer in this case, that the defendant has not capacity to be sued.

The act creating the Metropolitan Eire Department does not in terms declare it to be a body politic or corporate; and although it has express power to sue, it has no express capacity to be sued; and as the action is against the defendant, by its denominational title, it must be shown to be a corporation de facto or sub modo, or it cannot be sustained.

There are numerous instances of collective bodies of men who are invested with corporate attributes sub modo. Some have a corporate capacity only for a particular specified end, such as supervisors of towns and counties, loan officers and commissioners of loans, overseers of the poor, commissioners of common schools and of highways, trustees of schools, &c. (2 Kent, 278). Each of these bodies, it is now provided by statute,(2 R. S., 473, secs. 92, 95, 96), may sue and be sued; and some of them are made bodies corporate (1 R. S., 337, 364). At common law every parish .and town was a corporation for local necessities, and every collective body of men who, although not bodies politic or corporate, with the general powers of corporations, yet having a corporate capacity for particular specified ends, are considered as quasi corporations, with limited powers coextensive with the duties imposed upon them by statute.

Prior to the Revised Statutes, there were no incorporating acts for towns and counties. The whole article to widely I have above referred, say the revisers, is new, and was reported by them in consequence of decisions which had been made that towns and counties could not take or hold real estate. Those decisions, having been made before the statute, were founded, of course,’ upon the common-law powers of the various bodies which had claimed some corporate capacity. Thus, in Jackson v. Gory (8 John. R., 385), it was held that a “ county” could not take title to land; and in Jackson v. Hartwell (id., 422), that supervisors were also incapable of taking title. But it was admitted that they were corporations for certain special purposes; and this is plainly recognized in Horth Hempstead v. Hempstead (2 Wend., 109, 134), Pittstown v. Plattsburgh (18 J. R., 418), Janson v. Ostrander (1 Cow. R., 670), Grant v. Fancher (5 id., 309). In Pittstown v. Plattsburgh, the Court say: “Where a public officer is instituted by the legislature, an implied authority is conferred on the officer to bring all suits as incident to his office which the proper and faithful discharge of the duties of his office require. And in Todd v. Birdsall (1 Cow. R., 260) it was held that a: action w'ould lie against overseers of the poor, and their lega. liabilities incurred by predecessors in office ought to devolve upon the successors. It was incident to the office, which in that respect might be viewed in the nature of a corporation. In a note to this case are collected all the prior decisions. / The same general doctrine is sustained in Inhabitants of School District in Rumfort v. Wood (13 Mass., 192), and in Levy Court v. Coroner (2 Wallace, 501).

From the cases cited it will be seen that bodies created by the legislature have an incidental capacity to sue and be sued, independently of any express power, and for such pin-pose are regarded as corporations sub modo.

By the act in question the cities of New York and Brooklyn are constituted and united into a district, known as the Metropolitan Fire District of the State of New York. The Governor and Senate are authorized to appoint four citizens, residents of the district, to be “ Metropolitan Fire Commissioners,” who shall form a Metropolitan Fire Department, to take and have, as provided in the act, control and management of all officers, men, property, measures, and action for the prevention and extinguishment of fires within the said district, to be organized as therein provided, and to be known by the name of the “ Metropolitan Fire Department.” The Commissioners are to hold office two, four, six, and eight years respectively, and at the expiration of each term a successor shall be appointed. Provision is made for filling vacancies and for the removal of the Commissioners. They are authorized to organize the “Metropolitan Fire Department ”, by electing one of their number as President, and appointing a Secretary. When so organized they shall possess and have all the power and authority conferred upon or possessed by any and all officers of the Fire Department of the City of New York. The specific powers conferred by the act upon the “ Metropolitan Fire Department ” are, to possess and exercise fully and exclusively all the powers, and to perform all the duties for the government, management, maintenance, and direction of the Fire Department of the City of New Y ork, and the premises and property thereof, which, at the time of the organization of the Department, were possessed by or were under the control of the boards and officers of the Fire Department in said city, or the officers or employes of said city.

The Department is given sole and exclusive power and authority to extinguish fires, and to provide supplies, horses, tools, implements and apparatus, and fire telegraphs, and to provide suitable locations for the same, and to buy, sell, construct, repair, and have the care of the same, and to take all such action in the premises as may be reasonably necessary and proper.

The Department is given full and exclusive power for the government, management, maintenance, and direction of the buildings and premises and property and appurtenances, and all apparatus, &c., which were under the charge and control of the city officers, which property is transferred to the keeping and custody of the “ Metropolitan Fire Department.”

The Commissioners are directed to provide such officers and business accommodations as are necessary for the transaction of its business, to adopt a common seal and direct its use; and are authorized, in the name of its president, to institute and maintain suits and proceedings (and may pay costs,, expenses, and judgments therein) for the enforcement of its rights and contracts, and for the protection, possession, and maintenance of the property under the control of the Department; and may also sue for, and have the exclusive right to recover, for the benefit of the Department, the fines and penalties which may be enforced.

The mode of raising money for the support of the Department is by estimates made by the Commissioners and the Comptroller and Mayor of the City of New York, convened as a Board of Estimate, which estimate, when approved by the Board of Supervisors of the County of New York, shall be levied and collected by the Board of Supervisors by taxation of the real and personal estate, subject to taxation within the County of New York. The amount so to be raised is directed to be deposited with the Treasurer of the State as a fund to the credit of the Department, and drawn by check or warrant of the Treasurer of the Department, as, ordered by the Department. Provision is made for the appointment of a treasurer, who is the fiscal officer of the Department, and authorized by order of the Commissioners to disburse all moneys ; and he is required to deposit all funds in a bank to be designated by the Commissioners.

The Commissioners are given power to select a chief and assistant engineers, and as many officers, clerks, firemen, and apparatus as may be necessary, and to remove the same.

By an amendment of the act in 1867 (Sess. L., chap. 408) the salaries of the members and employes of the Department are fixed, and directed to be paid by the Commissioners out of any moneys in their possession; and, in case of a deficiency, the Comptroller of the City of New York is required to deposit with the Treasurer of the State, to the credit of the Commissioners, upon their requisition, such additional sums as may be necessary, which additional sum is afterwards to be collected by taxation.

The act creates a fire district, composed of the cities of New York and Brooklyn. It is not made subservient, or responsible, to any local authority in either city; its officers and agents are appointed by a power above all local authority, and are held amenable only to the Governor and the Legislature; the Department is required to make report to the Governor, and its funds are kept in the treasury of the State. It cannot be pretended that the City or the County of New York has any power or control over the Department whatever; and the only duty which the City or County owes to the Department is to raise, by taxation, the moneys required for its support—which moneys are required to be paid into and kept by the Treasurer of the State, and are wholly under the control of the Department.

Here, then, is a Department created over two otherwise wholly independent districts, having most extensive powers, which it can exercise without interference from those cities, or either of them. Would not such a department, without any express right, have had at the common law a power to sue, incidental to a discharge of the duties devolving upon it % If so, and the cases cited establish. it, it would also be regarded as a quasi corporation, with such powers, and subject to such liabilities, as belong to such bodies.

It was urged, on behalf of the Department, that it had no property whatever, and, therefore, a judgment could not be collected. I know it has been said in some of the casés (Lyon v. Adams, 4 Serg. and Rawle, 443; Gardner v. Board of Health of New York, 10 N. Y. R., 409) that one of the essentials of a quasi corporation was property or funds owned by it. Y et if that essential only was wanting, it might be doubted if it would be sufficient to defeat an action. It does not follow that supervisors, overseers, trustees, &c., who previously to the statute were held to be corporations sub modo, had property or funds; and in those cases there was no way of paying or collecting, except through the power of taxation. Hor is there now, in respect to many of the corporate bodies, any property which could be subjected to levy and sale. But however that may be, an examination of the statute will show that the Metropolitan Fire Department has property and funds independently of the ample provision which is made 'for raising money by taxation for salaries, rents, &o., and generally for the purposes of this act, and such general and contingent expenses” as may be necessary. The authority to buy and sell necessarily implies a power to hold and to take and give title. There is nothing in the act which in express terms, or by any fair implication, requires the title to property to be taken to, or in the name of, the City. The old Department was expressly empowered to take and hold real and personal property, and no part of the present act forbids the present Department from also holding it. We were referred to the seventeenth section, but that section relates to the property then or theretofore in use by the old Department; which it is declared shall rémain the property of the Mayor, &c. It does not include, or in terms affect, any property which the Commissioners may subsequently acquire. That ownership in the City was intended to be confined to the property on hand is to be presumed from the direction, in the eighteenth section, to pay the proceeds of the sale of property, not required by the Commissioners, into the Treasury of the “City” whereas all other funds of the Department are directed to be paid to the Treasurer of the “State.” The Department has, in addition, all fines and penalties imposed by chapter 356 of Laws of 1862, and also such as may be imposed by itself, which fines are held for the benefit of the fund of the Department.

The property, therefore, of the Department (both its apparatus and its funds) can be subjected to levy, or otherwise reached by execution, and such fact furnishes an answer to the objection, that without property there can be no quasi corporation.

In Gardner v. The Board of Health, ubi supra, the defendant was held not to be a corporation. The Court say: It has no succession, no seal, and no funds;” that it was organized by the City Corporation, and might be changed at the pleasure of the Common Council.

The three ingredients, all or some of which, at least, are required to constitute a corporation, are a succession, a seal, and funds. The act creating the defendant is unlimited in duration, and provides for a succession, which, according to Blackstone (2 Bla. Com., 430), is the mode by which one set of persons, members of a corporation aggregate, acquire the rights of another set which preceded them. It also has a seal, and, as I think I have shown, has funds and property, thus bringing it within all the definitions of a quasi, if not an actual, corporation. I do not think, however, that it is necessary, in order to find a capacity in the defendant to be sued, to let the decision rest entirely upon its being a quasi corporation.

There is enough in the act, when considered in connection with other statutes, which, it seems to me, in express terms, renders it capable of being sued.

The act creating the department declares (sec. 4) that, when organized, the Commissioners shall possess and have all the power and authority conferred upon or possessed by any and all officers of the “Fire Department of the City of New York” and the department itself is empowered (sec. 5) and directed to possess and exercise, fully and exclusively, “ all the powers, and to perform all the duties for the government, management, maintenance, and direction of the Fire Department of the City of New York, and the premises and property thereof, which, at the time of the organization of said department, were possessed by or under the control of the boards and officers of the Fire Department of said city.”

The first act creating a Fire Department in the city of New York was passed in 1798 (see Valentine’s Laws, p. 748), by which certain persons were constituted a body politic, in fact and in name, by the name of the “ Fire Department of the City of Few Yorh,” and was made capable in law of suing and being sued. The department was limited in. its duration to the year 1818. In 1816 it was continued until the year 1838, and in 1831 continued until the year I860, and again in 1850 to the year 1880, unless sooner altered, modified, or repealed by the Legislature.

The only “ Fire Department” to which reference is made in the present act is the department created under the act of 1798, which, as has been seen, was in force at the time of the enactment of the present law. In the various acts subsequent to 1798, the Legislature has fully recognized and continued the existence of that act. The act of 1813 merely empowers the Common Council to appoint the firemen, and the persons so appointed are denominated “ the firemen of the City of New York.” The act of 1817 makes the firemen members of the “ Fire Department.” That of 1819 authorizes the department to recover fines, &e. The same in 1820. The department is also recognized in the acts of 1824,1841,1854,1855, and 1861.

The repealing clause in the present act is of “ all acts and parts of acts inconsistent with this act.” But it is further provided that “the present Fire Department” shall continue until the organization of the new department.

It is not material to consider whether the act of 1798 is or is not repealed, for it seems quite clear that the scope, effect, and intent of the present act was to usurp and absorb all the powers, duties, and functions of the old Fire Department, so that, if not in terms or "by necessary consequence repealed, it has "become functxos officio.

It has been held (Fire Department of New York v. Kip, 10 Wend., 266), and the statute declared, that the old Fire Department was a corporation, capable of being sued, and if all the powers, of that corporation have been given to the Metropolitan Fire Department, there can be no room for doubt that such department is also a corporation, and as such capable of being sued.

In addition to the transfer of the powers of the old department before referred to, the act directs (sec. 17) that all real estate, fire apparatus, &c., theretofore in use by the firemen and fire department shall be transferred to the keeping and custody of the Metropolitan Fire Department, for the use of the department, and directs the Commissioners (sec. 18) to dispose of so much of said property as may not be required.

It will thus be seen that the present law not only transfers all the powers of the old Department, but erects the new Department into an independent and" exclusive corporation, with all needed powers, and it seems to me that necessarily it annuls the old Fire Department.

It was said, in support of this action, that if the defendant is not capable of being sued, persons dealing with them, or affected by their* acts, would be remediless. Certainly, very large and extensive powers are given to the Department. It may buy property" to an unlimited extent, contract and incur debts and obligations, commit trespasses, and do wrongs, and unless held to be responsible as a corporation, there is no remedy.

In answer to this it was replied that the City is liable ; that the department being an agent of the city, the latter must assume its debts and respond for its unlawful acts. I cannot agree to this. The relation of principal and agent cannot be implied, and the act does not create it. The City of New York is not a party to the act creating this new Department, and cannot be presumed to have accepted or assented to any part of it, and its corporate rights and powers are not to be affected by the acts of a commission in whose appointment it had no voice, unless so affected by the express terms of the act.

It is enough, however, to say that the act does not make the department an agent of the city, nor render the city liable for the contracts or acts of the department, and, as I understand it, the decision in Appleton v. Water Commissioners of New York (2 Hill, 432), was put upon the ground, among others, that the 'City and not the Commissioners are liable, and the act creating the Commissioners justified such decision.

Whether, therefore, we regard the defendant as-a corporation sub modo, and invested with all the powers and capacities of an actual corporation; or as a collective body succeeding, under legislative authority, to the powers and capacities of the old Fire Department of the City of New York—in either aspect, it is capable of being sued, and may be rendered liable in an action for injuries resulting from negligence of its agents or servants, or from the faulty, defective, or insufficient character oí the apparatus used by it in extinguishing fires (Proprietors of Southampton v. Local Board of Health, 8 Ellis & Black, 801; Mersey Docks’ Trustees v. Gibbs, 1 House of Lords Reps., 93). In the case against the Trustees of the Mersey Docks, the action was by the owners of a ship’s cargo, for injury by reason of the negligence of the trustees in not cleaning the docks, and it was held that if the defendants had the means of knowing the state of the docks and were negligently ignorant of it, they were liable. And in the case against the Local Board of Health, supra, an action was maintained for negligence and want of due care in the construction and' management of a public sewer.

There is no hardship, injustice, of wrong in holding the defendant in this case liable for injuries which have been received through their own negligence, or through the negligence of those who are acting by. their orders and under their authority ; for, to exempt them from such liability, would deprive the injured parties of all means of redress. Li the language of Lord Westbury (in the case of the Mersey Docks, supra) “ it would be a very unreasonable and a very mischievous thing if, in the case of corporations dealing with the public or with individuals, such corporations should by any conduct of theirs in respect to property committed to their care, give a right of action to individuals, that such individuals should be deprived of the ordinary right of resorting for a remedy against the body doing or' authorizing these acts, and should be driven to seek a remedy against the individual corporators whose decision or order, in the name of the corporation, may have led to the mischief complained of.”

My conclusion is, that the action was rightly brought against the defendants, eo nomine, and that a sufficient cause of action is stated in the complaint.

The order appealed from should be reversed with costs, with leave to the defendant to apply to the Special Term for permission to withdraw the demurrer and to answer the complaint.

McCunn, J.

(concurring). I agree that the order appealed from should be reversed.

The true test of whether bodies of men discharging public' duties under a special law can be sued by a corporate title, is whether they have or have not funds and property under their control, in their public capacities, out of which they can respond in actions brought against them (Russell v. The Men of Devon, 2 Term, R., 669). Now the Metropolitan Fire Department possess, in their corporate capacities, moneys and supplies, also tools, horses, implements, appurtenances, &c., &c., to be used in extinguishing fires; and they are also, in their corporate capacities, authorized to buy, sell, and construct, and are enabled to bring suits upon contracts made by them for supplies, &c., and to recover for fines and penalties imposed by the act of 1862.

Indeed, the power of the department to sue in any form, and for any purpose, is not restricted in any way. It may institute and maintain suits and proceedings; it may pay costs and expenses in judgments recovered against it, in the name of its president, for .the enforcement of its rights and contracts, and the protection, possession, and maintenance of the property under its control.

Further, these fire commissioners are trustees, and the department a public board; consequently, they are a corporation (People v. Pinckney, 32 N. Y., 377). Moreover, they possess the power and have every insignia of a corporation. Its board is created and controlled by sovereign authority (1 Bla. Com., 500). It is perpetual (1 ib., 502). They have succession, a corporate title, and a corporate seal. They have capacity to sue, and surely, possessing all these rights, when they or any of their servants place their body in the wrong, or do any injury to another, or to his property, is it not reasonable to expect that a remedy can be enforced against them ? If not, where is the remedy ? To uphold a contrary view is to deprive the plaintiff of all compensation for the wrong done, and to put the life of our citizens at the mercy of these commissioners.

When a wrong is committed by an agent, the doctrine is respondent superiorbut the defendants have no superior, nor can any of the members of the commission be made individually liable, until it can be shown that he knowingly and wilfully, and to a degree that was criminal, permitted or caused the act to be done.

A careful consideration of the decisions of the English and American cases will show that many instances can be found in both countries where the courts have gone beyond enforcing the liability of public bodies to be sued, in cases which do not arise out of any contract, and that in principle there is no reason for such exemption. Surely, if they can be sued for a breach of contract, as is admitted they can, they most certainly can also be sued for a wrong or an injury; indeed, I cannot see the distinction.

The proposition that the members of the Board must be sued individually has no virtue. Such a course would prevent reputable citizens from accepting responsible public positions. To say that" the Board cannot be sued, is saying, in law, that there are cases of admitted legal injuries for which there is no redress or remedy. This doctrine I cannot subscribe to; on the contrary, I have always held that wheresoever there is a wrong committed our laws provide a remedy.

The order sustaining the demurrer should be reversed.


author:
McCunn, J.
      Freedman, J.

text:
    ELEANORE D. CONSTANTINE, Plaintiff, v. WILLIAM WAKE, Defendant.
    A covenant to pay rent runs with the land and binds the assignee. A bornes, i. e., a sum of money greater than the rent paid by an under-tenant for a lease of premises, is rent. An under-lease vests only a partial estate in the under-tenant, whereas, an assignment transfers the whole interest of the first lessee to the assignee.
    The essential nature of the conveyance is not affected by the particular words employed ; although the instrument purports to be a lease or demise, it is still an assignment if the lessor part with the whole of his interest. A lease creates an estate, and an assignment transfers the estate from one person to another after it has been created.
    If the instrument conveys all the estate of the grantor, it is an assignment (per Freedman, J.). If it convey a less estate than the grantor had, and leave a part of the estate, however small, in the grantor, it is a lease (per Freedman, J.).
    Before Monell, McCunn, and Freedman, JJ.

      [Decided June 11, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    The facts are as follows: In July 1, 1862, the plaintiff leased 182 Fulton street, this city, to John P. Wake, for the term of eleven years and ten months, at the yearly rent of one thousand dollars; and, in addition thereto, if the premises should, at any time during the continuance of the term thereby granted, be rented for or yield to the said Wake, “ his executors, administrators, or assigns, more than one thousand dollars per annum, in addition to the taxes and assessments, then, in that case, one half of the excess shall be paid to Mrs. Constantine.” In 1865, Wake granted and demised the premises to his brother, William Wake, the defendant, for the term of eight years, from the 1st of May, 1866 (the whole of the then unexpired term of the first mentioned lease), at the annual rent of $1,000, with taxes and assessments; then William Wake made a lease to Abbey, Sturdevant & Co., of the same premises, for eight years, being the balance of the original term • Abbey, Sturdevant & Co. agreeing to pay John P. Wake as “ bonus for said lease, the sum of §12,000,” payable by instalments, in addition to the $1,000 of rent per year, as mentioned in the original lease. Four thousand dollars, part of the bonus, was paid to William Wake, and this action was brought to recover one half of the same, Mrs. Constantine charging that the $12,000 bonus is an increase of rent, or yield, for said premises, and that' she is, under her covenant in j;he original lease to that effect, entitled to one half of said bonus.
    After 'the evidence was closed on both sides, counsel for defendant asked the Court to charge the jury that defendant was entitled to their verdict. •
    The Court refused to so charge, and defendant’s counsel excepted.
    The Court thereupon charged the jury that plantiff was entitled to their verdict, to which charge defendant’s counsel excepted.
    Thereupon the jury rendered a verdict in favor of plaintiff for ' the amount claimed.
    The Court ordered the exceptions be heard in the first instance "at the General Term, the judgment in the mean time "to be stayed.

      Mr. F. E. Mather for defendant.
    Defendant never was assignee of John P. Wake. Ho principle or incident of feudal tenures can be appealed to to make him such; and if made assignee, it must be by the letter of Exhibit B, or by operation of the law applicable thereto (1 R. S., 718, sec. 3, and 748, sec. 2; Van Rensselaer v. Smith, 27 Barb., 149).
    The lease to William made him the lessee and tenant of John : it shows such to have been “ the intent of the parties,” and that intent “ is consistent with the rules of law.”
    It also shows that John did not thereby convey, transfer, or make over to defendant all his interest in the demised premises: hence it is not an assignment (2 Bl. Com., 326; Burrill’s Law Dictionary).

      The residue of the term (using that word in its proper legal signification,) was not transferred to defendant.

      “ The word term does not merely signify the time specified in the lease, but the estate also and interest that pass by that lease; and, therefore, the term may expire during the continuation of the time, as by surrender, forfeiture, and the like” (2 Bl. Com., 144; Fairman v. Platt, 8 Pick. R., 339).
    A transfer of the residue of the term is not a/n assignment unless the instrument of transfer be an assignment in form and fact; or unless it “ can be collected from the whole instrument” that the grantor thereby intended to transfer and make over unconditionally all his rights and interest in the demised premises; and that the grantee so accepted it.
    The four thousand dollars paid to defendant is not, in any sense, rent.
    It is not money reserved or agreed to be paid.
    It is a sum paid in gross, and is no more rent than would have been a like sum if agreed to be paid by John to the .plaintiff, in gross, nor than would have been a like sum if realized from a sale at public auction, by the Sheriff, by virtue of judgment and execution against William, of his interest in the lease (Smith v. Mapleback, 1 T. R., 441).
    If defendant became assignee of John, he (defendant) is not liable as assignee to plaintiff in this action.
    The agreement as to the “ one half of the excess ” is not such as runs with the land, or such as creates a liability by privity of estate (Willard v. Tillman, 2 Hill., 277).

      That possible “ excess ” is not rent in any proper sense of the term ; it lacks the two indispensable qualities, viz., certainty and yearly (2 Bl. Coms., 41; Van Rensselaer v. Bonesteel, 24 Barb., 368).
    The only covenant or agreement in respect to paying any thing by-John is (fol. 24) for himself, his heirs, executors, and administrators {not his assigns) for the payment of “ the said yearly rent above reserved, on the days and in the manner limited and prescribed as aforesaid, for the payment thereofP

      That covenant (so far as concerns this action) relates only to the yearly rent reserved, payable quarterly.
    The moneys claimed in this action are not (as above shown) yearly rent, nor payable on any day limited or prescribed.
    Defendant is not liable in this action either by privity of estate or privity of contract or otherwise.

      Mr. Charles D. Adams for plaintiff.
    The §12,000 bonus (of which $4,000 has been paid) was additional “ rent or yield ” of the premises provided for in the original lease.
    Bent is any profit in money, provisions, chattels, or labor, issuing out of lands and tenements in retribution for their use (2 Bl. Com., 41 ; 1 Kent Com., 367 ; 14 Peters Rep., 526).
    The $12,000 was a part of the consideration paid for the use of the premises, which constitutes the essence of rent; and calling it a “ bonus ” does not alter its character (1 Bouvier’s Law Dict., 187).
    A gross sum paid to the landlord for the use of the premises is rent (authorities above cited).
    Bent need not be a sum specified in the lease itself. It is only necessary that it should be capable of being made definite and certain.
    The covenant to pay rent runs with the land, and binds the assignee (Davis v. Morris, 36 N. Y., 575 ; Jacques v. Short, 20 Barb., 269 ; Van Rensselaer v. Bonesteel, 24 id., 368-9; Taylor’s Land, and Tenant, sec. 437).
    Every assignee is the tenant of the original landlord, and stands in the same relation to the original landlord as the first lessee (4 Kent Com., 95; 14 Mass., 487 ; Jackson v. Davis, 5 Cow., 129; 17 Wend., 473; Taylor’s Land, and Tenant, sec. 437; 9 Pick. R., 52 ; 16 Barb., 481; 20 Wend., 23 ; Townsend on Sum. Proceedings, 33).
    The assignee holds in privity of estate of the original landlord (Taylor’s Land, and Ten., sec. 436).

      An assignee takes the thing assigned, subject to all equities to which the original party is subject, and must perform all covenants which are annexed to the estate as long as he is in possession (Taylor’s Land, and Tenant, see. 437; 24 Barb., 365 ; Astor v. Lent, 6 Bosw., 612).
    The principle is laid down by all the elementary writers in England and in this country, as follows: An assignment of a lease is the transfer of the lessees whole interest or estate in the thing demised to some third person.
    Blackstone, in 2 Com., 317, says, “A lease is always for a less time than the lessor hath in the premises; for if it be for the whole interest, it is more properly an assignment than a lease.”

      “If the deed pass all the estate or term of the termor, it is an assignment” (4 Kent Com., 11th ed., 96 [marginal page] and cases there cited).
    If the instrument convey all the estate of the grantor, it is an assignment. If it convey a less estate than the grantor had, and what is not conveyed remain in the grantor, it is a lease.
    Washburn, in his work on Real Estate, vól. i., p. 333, sec. 2-4, states the general rule to be that “ a grant by the lessee of his entire estate will be an assignment, whether in form a lease, or an instrument in terms an assignment,” and cites 2 Preston Con’s, 124.
    A reversion is essential to a lease, and there can be a reversion only to one holding a greater estate (Taylor Land, and Ten., sec. 16 ; Smiley v. Van Winkle, 6 Cal., 605 ; Davis v. Morris, 36 N. Y., 576 ; vide 1 Platt on Leases).
   McCunn, J.

We are clearly of opinion that the plaintiff should recover.

It is obvious to remark, that the instruments of the 5 th and 6th of December, 1866 (exhibits E, F, and G-), were conceived in apprehension of the present action, and were contrived to evade the claim in controversy. Whether they be effectual to accomplish the object in view, depends on the determination of the following points:

1. Does a covenant for rent run with the land, or is it a merely personal engagement ? That it is a real as distinguished from a personal covenant, and that it attaches to the estate instead of subsisting in privity of contract, was among the resolutions in Spencer’s case, 5 Reports, 16, and has since been recognized as a fundamental principle by every court in which the system of English jurisprudence is administered. That a covenant for rent runs with- the land is an axiom of law, and neither argument nor authority is essential to its support.

2. Was the $12,000 “ bonus,” agreed to be paid to William Wake by Abbey, Sturdevant & Co., rent, in the technical sense of the word ? Bent is the recompense for the use and occupancy of lands; and it signifies nothing how or when that recompense may be rendered and received. It may be rendered in services, in goods, or in money. It may be fixed by the contract of lease, or its amount may be ascertained by some subsequent event. It may be payable by stated instalments, or it may be paid in a gross sum at the inception of the tenure.

Its essential characteristic, as rent is, that it be a recompense for the use and occupancy of land. Bow, when Abbey, Sturdevant & Co. agreed “to take” of William Wake “a lease of Bo. 182 Eulton street,” and to pay him $12,000 for the privilege of talcing, occupying, and enjoying those premises, there was essentially a contract of lease and a reservation of rent; and the substantial nature of the recompense stipulated for the use and possession of the land, cannot be changed by calling it a “ bonus.” The definitions of law are strictly inquiries, and have reference, not to names, but to properties. What recompense did Abbey, Sturdevant & Co. render to William Wake for the use and occupancy of the premises? The annual tribute of $1,000 only? Or, did they pay him, besides, the gross sum of $12,000 ? And for what was this $12,000 agreed to be paid, if not for the use and occupancy of the premises ? Bor, except the use and occupancy of the premises, was there any consideration for the ’ payment-of the $12,000 ? On the other hand, what compensation di d William W alee exact -for the lease of the premises ? Only $1,000 a year % Or did he demand an additional sum of $12,000 ? The entire amount agreed to he paid William Wake for the use and occupancy of the premises, constituted the rent reserved for the use and occupancy of the premises; and it is still vent, though $12,000 be sequestered from other payments, and arbitrarily distinguished as a bonus.”

3. Did the defendant, William Wake, hold by under-lease or by assignment ? and this is the principal contention in the case. The distinction between an under-lease and an assignment is elementary and substantial. An under-lease vests only a partial estate in the second lessee, a reversion being left in his lessor; whereas, an assignment transfers the whole interest of the first lessee to the assignee. The test is, whether the grantee leaves a reversionary interest in the lessor, or operates a transfer of his entire term % In the one event, it is a sub-lease ; in the other,. an assignment. The essential nature of the conveyance is not effected by the particular words employed, and though the in strument purport to be a lease of demise, it is still an assign ment, if the lessor part with the totality of his interest. In the case under adjudication, the original lessee, John P. Wake, transferred his entire term to the defendant, William Wake, and the defendant, William Wake, took and held the premises as assignee. As assignee, the defendant, in privity of estate, is bound by the covenants that run with the land. This was the rule laid down in the case of Williams v. Earle, decided last month in the Queen’s Bench, and reported in New York Transcript of 15th of May, 1869. The covenant for rent runs with the land, and the defendant is liable to the plaintiff on the original lessees’ agreement to pay the plaintiff one half the excess over a thousand dollars a year which the premises yielded,” or for which-they rented at any time during the continuance of the term. Besides the annual instalment, the premises yielded the gross sum of $12,000, payable in three equal instalments, one of which, $4,000, was paid the defendant by Abbey, Sturdevant & Co., and of that sum plaintiff is entitled to a moiety.

Judgment should be entered on the verdict in favor of the plaintiff.

Freedman, J.

(concurring). The principal question involved in this case is, whether the conveyance by John P. Wake to the defendant operated as an assignment of the original lease held by John P. Wake, or should be regarded as a sub-lease. This question has been the subject of much discussion in the books and in the courts, and has given rise to many conflicting opinions. The distinction between a lease and an assignment, as laid down by the elementary writers, is clear enough : a lease creates an estate, and an assignment transfers the estate from one person to another, after it has been created; a lease is a continuing contract, and its obligations secure the right of possession to the tenant until the contract itself. ceases to exist; but an assignment, when it has wrought the transfer, has fulfilled its office. But although this difference between the operation of the two instruments has never been questioned, a conflict of opinion has frequently taken place, as to whether a particular instrument amounted in law to a lease or an assignment.

In reviewing the English authorities upon the subject, Platt, in his treatise on Leases, pp. 9-23, comes to the conclusion that a reversion in the grantor is indispensable to a lease; that is, if the instrument convey all the estate of the grantor, it is an assignment; if it convey a less estate than the grantor had, and leave a part of the estate, however small, in the grantor, it is a lease.

The same rule has been generally adopted in this country. The distinction between an assignment and a lease is stated in Taylor’s Land! and Ten., sec. 426, as follows : “An assignment of a lease is the transfer of the tenant’s whole estate therein to some third person. It differs from a lease in this, that by the latter the lessor grants an interest less than his own, reserving to himself a reversion; but by an assignment he parts with the whole property.” He also says of a lease in sec. 16, “ It is essential to a lease, also, that some reversionary interest be left in the lessoi*, for if he part with "his whole interest in the premises, or make a lease for a period exceeding his term, it will, in either ease, amount to an assignment.”

And it lias been said, that it makes no difference whether the transfer is effected in form by an assignment, or by a demise or lease from the assignor to the assignee.

And Bingham, in his valuable treatise on the Law of Beal Property, recently published, after discussing this question pretty thoroughly, and citing numerous authorities, insists that this is the doctrine of all the authorities which treat of the subject, and he claims that it has never been distinctly contended that, when the grantor conveyed all his estate in the premises, the instrument was a lease, and that the cases sometimes cited as evidence of a contrary doctrine, either disclose the fact that all the estate was not transferred, or that the instrument forming the subject of the controversy contained peculiar provisions, inducing a belief that the parties supposed they were making a lease, and that, therefore, forms have been mistaken for substance. A careful scrutiny of the facts of the principal cases usually relied upon as evidence of such contrary doctrine, will show that this is so.

In Piggott v. Mason (1 Paige, 412), the Chancellor held that the leases to Griffiths & Green, and to Spies, were sub-leases, because they did not convey to them all the interest of the lessors (Garniss & Pyke). The lessors retained an interest by the new rent reserved to themselves; they did not give to the sub-lessees an absolute right to take off the buildings which they should afterwards erect. If buildings had been previously erected, the absolute right to them at the expiration of the term belonged to the complainant, if the lessees did not think proper to take new sub-leases; and the right of the complainant to take the renewal of the original lease in his own name is evidently reserved in the sub-leases.

In Post v. Kearney (2 Comst., 294), Justice Gardiner, in delivering the opinion of the Court of Appeals, which is a very short one, and affirming the judgment of the Superior Court, says: The lease between the parties last mentioned is in the usual form, with covenants by the lessee for the payment of rent, and for the surrender of the premises at the close of the term in good order and condition. Shepherd, therefore, did not hold the premises as assignee, but as the under-tenant of the defendant (Piggott v. Mason, 1 Paige, 414,415).” This remark, from which it does not appear whether Shepherd’s lessor did or did not part with his entire interest in the original lease, or whether he did or did not retain a reversionary interest therein, and which does not disclose to whom Shepherd was bound to surrender, has since been frequently cited in support of the theory, that every conveyance not containing the proper technical words of an assignment should be considered as a sub-lease, and not as an assignment, even if it convey the whole estate of the grantor in the unexpired term, and in many cases seems to have misled. The report of the same case in the court below (Kearney v. Post, 1 Sandf., 105), shows that the Superior Comt held the lease to be a sub-lease, and not an assignment, for the following reasons:

‘‘ It appeared that although the demise of the defendant to Shepherd was for the whole residue of the term, it reserved to the defendant a payment of an annual rent four times as great as that reserved in the lease; it contained a covenant on the part of Shepherd to surrender the possession of the demised premises to the defendant on the last day of the term; in case of the destruction of the buildings by fire, the whole demise to Shepherd was to terminate; and Shepherd, if he held to the end of the original term, was to have no interest in the payment for the buildings, or in the alternative renewal.” It was clearly, therefore, a sub-lease, and the Court of Appeals so held.

In Linden v. Hepburn and others (3 Sandford, 668), the Court, relying upon the case of Post v. Kearney (supra) and the case of Doe ex dem. Freeman v. Bateman (2 B. and Ald., 168), held, that a certain lease of part of the premises conveyed by an original lease should be regarded as a sub-lease, and not as an assignment of the original lease ¡pro ta/ntó, because the right to re-enter was reserved to the plaintiffs, and this suffices to enable them to enter for breach of the conditions, although there be no .reversion remaining in them; and the court, therefore, without noticing the entirely different state of facts in Kearney v. Post, affirmed the judgment upon the demurrer. The case of Post v. Kearney I have already examined and distinguished, and in Freeman v. Bateman (supra) Chief-Justice Abbott simply held that Bateman, as lessee for years, having made a conveyance for a term co-extensive with his own, operating as an assignment of his whole interest in the land, but containing a covenant on the part of Freeman not to open a public house on the demised premises without license, and giving to Bateman the right of re-entry on breach of the §aid covenant, had a right upon an actual breach thereof to re-enter upon the land, although no reversion was left to him in case of the observance of the condition. The Chief-Justice in this case did not only not decide that the conveyance to Freeman was a lease, but distinctly held that it operated in law as an assignment, and that Bateman could maintain an action upon the covenant. In this case the right of Bateman to sue for a breach of the covenant referred to was perfect, •whether his conveyance in law amounted to a lease or an assignment.

So, in Linden v. Hepburn (supra) the right of the plaintiffs to sue upon the covenants, that the premises were to be occupied and used only as a dwelling and cabinet-maker’s shop and ware-rooms, except that the basements on Broadway might be let to trades not noisy, but not for billiards, tenpins, &c., &c.; that no persons, furniture, &g., should be placed or go on the roofs of the Broadway houses; that no projecting signs should be put up,nor any awning or posts, and that no alterations should be made in the buildings without the lessor’s written consent, and that if default be made in any of said covenants, the plaintiffs might re-enter, all of which covenants the defendants broke, did not depend upon the question whether the lease to West operated as an assignment of the original lease, pro tambo, or as a sub-lease, but was perfect in either case, in consequence of the express covenants so made by West himself in favor of the plaintiffs.

There is an important distinction between conditions implied by the law of feudal tenures and those which the parties to a grant expressly mention and create in the conveyance, for the purpose of avoiding or defeating the estate. Any condition of the latter kind is valid, if consistent with the general rules of law; and if the condition expressed in a grant be valid, a right of entry for its breach, reserved to the grantor and his heirs or assigns, by the express terms of the grant, is also valid. This is wholly independent of tenure and also independent of priority of contact or estate (Van Rensselaer v. Dennison, 35 N. Y., 393).

In the case of Martin v. O’Conner (43 Barb., 514), there was an express covenant on the part of the sub-lessee with his lessors (the original lessees), to pay taxes and assessments, to pay the rent to his lessors, giving them the right of re-entry in case of nonpayment of the rent or of a breach of any of the covenants on his part, and the Court, relying wholly upon the remark of Justice Gardiner in Post v. Kearney, hereinbefore referred to, were of the opinion that it would be inconsistent with the decision in the last-named case to construe the conveyance into an assignment; but no reference whatever is made to the distinguishing features of the last-named case, as reported in 1 Sandf., 105.

In the People v. Robertson (39 Barb., 9), the court found there was a reversion in the lessor, that the first lease did hot expire until twelve o’clock of the first day of May, while the second expired at twelve o’clock at night of the thirtieth of April; and that there was, therefore, a period of time intermediate, when the sub-lessor had the right of entry and of possession of the premises. The facts in the case also show that the relators had paid rent under the' lease to the respondent, as their landlord, and had thereby recognized him as such, and thereafter were estopped from denying his title as such landlord, which carried with it the right to institute summary proceedings under the statute for the recovery of the possession of the premises in case of non-payment of rent.

In Davis v. Morris (36 N. Y., 575), the lessee, Hudson, retained the reversion of the last day of the term. The counsel for the defendant conceded that but for this reservation Morris would have become liable as assignee of the lessee for the rent to the plaintiff, and the Court held the defendant not hable, because by his agreement he did not become the owner of the entire term.

The cases referred to, for the reasons stated, cannot be considered as varying the general rule that if an instrument convey all the estate of the grantor, it is in law an assignment, and if it convey a less estate than the grantor had, and leave a part of the estate, however small, in the grantor, it is a lease. This has been distinctly asserted in Bedford v. Terhune (30 N. Y., 453), and it has also been held in this case that in the absence of any evidence of the bargain under which a defendant entered into possession, it being shown that he occupied the whole of the unexpired term of the lease, the fair presumption is that he entered for the whole of such unexpired term; and as such interest is given not by an under-lease, but by an assignment, the presumption must be that the defendant is in as assignee, and not as under-tenant.

And in Smiley, v. Van Winkle (6 Cal., 605), the rule was laid down as follows : A conveyance by a lessee of the remainder of his unexpired term, though it employ words ordinarily used in a demise, and contain a reservation of rent and the right of re-entry on covenants broken, is not an under-letting or sub-lease, but is considered in law as an assignment of his whole interest, as there remains in kirn' no reversion of the estate, it being one of the essentials of a lease that it should contain a reversion in favor of the grantor.”

Therefore, the defendant in this action having acquired the whole estate of John P. Wake in the lease hereinbefore referred to, paying the same rent, there being no covenant to surrender to John P. Wake at the expiration of the term, and the latter having no reversionary interest whatever in the premises, the conveyance to the defendant amounts in law to an assignment of the original lease, and the defendant is bound by the covenant to pay to the plaintiff one half of the additional rent or yield of the premises over and above the sum of one thousand dollars. The payment of four thousand dollars made by Abbey, Sturdevant & Co. to the defendant on the 1st day of May, 1866, must be considered as such additional rent or yield of the premises. A gross sum paid to the landlord for the use of the premises is rent, and calling it a bonus does not alter its character.

The defendant’s actions in this case show, in a very strong light, that his own construction of the law and the facts of this case was in entire accordance with the views herein expressed by me. After the execution of the lease to Abbey, Sturdevant & Co., by William Wake, on the 6th day of March, 1866, and a payment of four thousand dollars made by Abbey, Sturdevant & Co. thereon,-the right of the plaintiff to demand one half of said sum had become perfect, and the surrenders and transfers attempted to be made between the Wakes and Abbey, Sturdevant & Co. in the month of December following, could not divest the plaintiff of her rights previously acquired.

For the foregoing reasons I am of the opinion that the defendant’s exceptions should be overruled, and that judgment should be directed on the verdict in favor of the plaintiff for the sum of twenty-two hundred and twenty-one dollars and fifty cents, the amount claimed.


author: Monell, J.

text:
    CHARLES QUINN, Administrator, &c., Plaintiff and Respondent, v. JAMES T. LLOYD, Defendant and Appellant.

    On a motion for a new trial on the ground of newly discovered evidence, the affidavit must state that the evidence could not have been, with reasonable diligence, ascertained before trial.
    A want of recollection of an existing fact is not a ground for a new trial.
    Unstamped agreements are void only where the omission to stamp was with intent to defraud the Government, and the objection must be put on that ground and affirmatively proved by the party objecting.
    Congress has not conferred an appellate jurisdiction upon the Supreme Court of the United States, in cases arising in the State courts, which do not necessarily involve the validity of some Federal or State statute as being in conflict with some provision of the Constitution of the United States. Quere, per Monell, J.
    In suits upon contracts payable in gold, the damages must be assessed upon the sum found to be due in gold, and judgment entered in coin for that amount and not for the value of the gold in currency.
    Before Monell, McCunn, and Freedman, JJ.

      [Decided June 11, 1869.]
    This case was tried before a referee. The action was brought by the plaintiff as administrator of Richard Quinn, deceased, to recover against the defendant for services as draughtsman and surveyor.
    Upon the trial the plaintiff offered in evidence a letter from defendant to Richard Quinn, containing the terms and agreement of employment.
    Defendant’s counsel objected to the letter being admitted in evidence, on the ground that the letter was unstamped.

    The referee overruled the objection and defendant excepted. He found that the plaintiff was entitled to recover from the defendant a certain sum in gold, and also a certain sum in currency for other work performed for defendant, and reduced the first sum due in gold to currency, and directed judgment for both amounts found to be due, m currency.

      Subsequently, defendant moved at Special Term for a new trial, on the ground of newly discovered evidence, which motion was denied.
    The defendant appealed to the General Term from the judgment, and also from the order denying motion for a new trial.

      Mr. John Langtree for appellant.
    The letter offered in evidence was not duly stamped. It was the agreement under which Richard Quinn was employed.
    The referee erred in finding that the deceased was entitled to be paid in gold for services rendered under the contract (Metropolitan Bank v. Van Dyke; Meyer v. Roosevelt, 27 N. Y. R., 400; Rhodes v. Bronson, 34 N. Y. R., 649).
    The Court erred in denying the motion for new trial on the ground of newly discovered evidence, the genuineness of which is not questioned in the affidavit used in opposition.

      Mr. Hugh C. McKeown for respondent.
    The letter was properly admitted. It was merely a proposition by the plaintiff to the deceased, and was not binding on either party, until its acceptance by the deceased. It is submitted that it was not such an agreement as, within the meaning of the Stamp Act, required a stamp.
    It was not sued upon as a contract, but offered as written evidence of the terms of the contract, and as such was admissible without a stamp (Greenleaf on Evidence).
    The letter from defendant to the deceased states the amount of wages. The proposal contained in the letter having been accepted by the deceased, and he having gone to England and worked under the terms contained therein, it became the written contract of the parties, and parol evidence to vary the same would be inadmissible (Wolf v. Meyers, 3 Sandf., fol. 7; Erwin v. Sanders, 1 Cow., 249; Van Ostrand v. Reed, 1 Wend., 424; Montgomery County Bank v. Albany County Bank, 8 Barb., 396).

      The report of referee, like the verdict of a jury, can only be set aside where the finding is dearly against the weight of evidence (Green v. Brown, 3 Barb. 119; Baker v. Martin, id., 643; Doyle v. St. James’ Church, 7 Wend., 178).

         Reversed "by the Court of Appeals (41 N. Y., p. 349) on other grounds, without passing on the question discussed in this opinion.

   By the Court ;

Monell, J.

We have examined the several questions raised by the appeals in this case, and are satisfied no error was committed, except in the form of the judgment which was entered upon the referee’s report; and as we think that error can be corrected without a new trial, we shall order the judgment to be modified, and as modified to be affirmed.

The motion for a new trial was properly overruled. The affidavit upon which the motion was founded did not show that the evidence claimed to have been newly discovered could not have been, with reasonable diligence, ascertained before the trial. It existed at that time, was in the defendant’s possession, and he merely says he “forgot all about the transaction,” and “accidentally discovered them while overhauling a lot of old papers.” A want cf recollection of an existing fact is not a ground for a new trial (1 Gra. & Wat. on new trials, 473, 477).

The only exception raised by the appeal from the judgment which we need notice, was to the decision overruling the objection to the unstamped agreement.

So far as the objection was founded upon the 158th section of the act of Congress of June 30, 1864, which declares that all unstamped agreements are void, we have disposed of it in this Court in the case of The New Haven and Northampton Company v. Quintard (37 How. Pr. R, 29), where it was held that, by the act, such unstamped agreements were void only where the omission to stamp was with intent to defraud the. government, and that the objection must be put on that ground, and affirmatively proved by the party objecting, which was not done or offered to be done in this ease. The objection was merely that the agreement was not stamped, and was therefore incomplete, and offered no objection to its being received in evidence (see also Carpenter v. Snelling, 97 Mass. R., 452; Holyoke Machine Co. v. Franklin Paper Co., id., 150). Such general objection, however, may have been sufficient to present the question of its admissibility under the provisions of the ninth section of the amendatory act of Congress of July 13, 1866. But as that statute relates to, and in important particulars attempts to regulate, the rules of evidence, we arc inclined, without much examination of the subject, to adopt and follow, as we certainly' approve of, the decision of the Supreme Judicial Court of Massachusetts, in Carpenter v. Snelling, supra, where it was held, that the act applied only to the Federal courts,'and could not be extended so as to alter or regulate the rules of evidence in the State courts. We have examined the other exceptions taken at the trial and to the referee’s report, and are of the opinion that no error was committed, except in the form of the decision and judgment, which we will now correct.

There were two causes of action stated in the complaint. One for labor and services, payable in “American gold coimf amount, ing to the sum of three hundred and thirty-three dollars and seven cents; and the other for the sum of two hundred and ninety-six dollars and thirty-one cents, for other labor and services, not contracted to be paid for in gold. The referee reported, that on the tenth day of June, 1864 (the day the demand of payment was made), the sum of three hundred and twenty-seven dollars and eighty-seven cents was due to the plaintiff, payable in American gold coin / and that the same was, on that day, equivalent to the sum of six hundred and fifty dollars and seventy-five cents in the paper currency of the United States. To this latter sum the referee added interest from the tenth of June; and, having also ascertained that the further sum of two hundred and twenty-four dollars and thirty-one cents was due upon the second cause of action, rendered a general judgment for the several sums collectively.

In several cases recently determined by the Supreme Court of the United States (Bronson v. Rodes, 36 How. Pr. Reps., 365 ; Butler v. Horwitz, not reported, except in newspaper), it has been held that there are two kinds of legal tender lawful money of the United States; one of gold and sil/oer, and the other of thQpoa/per currency authorized by acts of Congress; and that contracts, which, by their terms, are made payable in gold or silver coin, may be adjudged by the courts to be valid, and their payments enforced in specie.

It may be a serious question whether the State courts should become obedient to these decisions. In cases properly before it, the decisions of the ultimate federal tribunal in all matters relating to constitutional questions and constructions of State or national statutes, are binding upon State courts. But Congress has not conferred an appellate jurisdiction upon the Supreme Court, in cases arising in the State courts, which do not necessarily involve the validity of some federal or State statute as being in conflict with some provision of the Constitution of the United States; and although that tribunal was reached, in the cases referred to, by means of decisions made in the State courts, declaring the legal-tender act constitutional, yet the Supreme Court entirely rejected and refused to pass upon the only question really involved, and which alone gave to it jurisdiction, namely, the constitutional objection, and, instead of dismissing the appeals when it was ascertained that such objection was not necessary to be passed upon, the Court merely decided that under the act contracts payable in gold, &c., might be collected.

However, without denying their authority, and following such decisions as well as we may be able, let ns see how we can conform the judgment before us to the law as established by the cases referred to.

In the case of Butler v. Horwitz, in error from the Court of Common Pleas of the State of Maryland, the contract was payable in gold, and the judgment was for the value of the gold in currency, with interest. This the Supreme Court say was erroneous. The Chief-Justice says, “the damages should have been assessed at the sum agreed to be due, with interest, in gold, and judgment should have been entered in corn for that amount, with costs.”

In the ease before us, the referee, following the decision in Butler v. Horwitz, should have assessed the damages on the gold contract at the sum due, with interest, vn gold, and for that part of the recovery the judgment should have been entered and its payment directed in com, with costs.

As all the facts are before us, we will order the judgment to be modified nunepro tunc, so that it shall adjudge that there is due to the plaintiff from the defendant, upon the first cause of action, the sum of three hundred and twenty-seven dollars and eighty-seven cents in gold; and the further sum of eighty-nine dollars and fifty-two cents, for the interest thereon, also in gold; amounting together to the sum of four hundred and seventeen dollars and thirty-nine cents in gold, and that the plaintiff recover the same from the defendant in coin. And that it shall farther adjudge, that there is due to the plaintiff from the defendant, upon the second cause of action, the sum of two hundred ■and twenty-four dollars and thirty-one cents, and that the plaintiff recover the same from the defendant. And further, that the plaintiff recover his costs.

Upon the plaintiffs consenting to such modifications, the judgment, as modified, will be affirmed, without costs of the appeal to either party. Otherwise, the judgment to be reversed .and a new trial ordered.