Castillo v. Walker

1 Ant. N.P. Cas. 339

• Court: The Superior Court of the City of New York and Buffalo
• Decided: July 1, 1844
• Status: Published

Opinion

Jones, C. J.

I incline to think, with defendant’s counsel, that on this part of the case the plaintiff must be considered to some extent identified with the tenant; but I do not feel my convictions strong enough to rule in the evidence, on that ground, and I am clear it cannot be considered as part of the res gestae. I must, therefore, but with much hesitation, rule that the account is not admissible on either ground.

' The defendant then proved that, after they had completed the inventory, but before the articles distrained were appraised, the goods in question were found in three trunks, in the hall of Carlton House, where they had been removed from the room which had been separately demised. They were there seized, and an item added to the inventory in „ these words, “ cigars, $20, per M.,” no quantity being expressed and no amount carried out. It also appeared that they were claimed by the plaintiff, who was a boarder in the house, who had them in the house for some time, as merchandize, for sale, stowed in the room above mentioned, from whence he was in the act of removing them into the street, when they were seized. Some other irregularities also appeared to have occurred, in the course of the distress.

Cutting insisted, 1st. That these and other irregularities invalidated the distress entirely as to the property of third persons. 2d. And also that the property seized, being the property of a boarder, was privileged from distress.

Anthon, contra, contended that irregularities in the distress would only lay the foundation for a special action by the party injured, in which he would be compelled to point out, by averment, the precise irregularity and claim for the damages resulting from it; and, as to the second point, that the statute only protected property belonging to the boarder qud, boarder, and not his stock in trade brought into the hotel, as this was.

Jones, C. J., ruled both points with the defendant.

The plaintiff then offered to show that the furniture, stipulated by the landlord to be placed on the premises by him, amounting to $10,000, formed a component part of the rent reserved, and could not be distrained for, and that, therefore, the proceedings were defective.

Anthon. Such testimony is not admissible. The $12,000 is reserved qud rent, and, as between landlord and tenant, and all others, like plaintiff, affected by the contract, it is rent, and they cannot look behind the seal.

Jones, C. J. I am clearly of opinion that this testimony is inadmissible. The sub-tenant is here plainly identified with the tenants, and the amount reserved, and for which the remedy by distress is given by the covenants must, in all controversies growing out of this indenture of lease, be treated as rent reserved.

Cutting then contended that the landlord, by allowing a door to be cut from the room separately demised, into the hall, had made the hall a common passage-way, and had given a right to persons occupying that room, to pass and re-pass freely through it, and that the goods in question being' in the course of transit from that room to the street, could not be there seized ; and cited Winslow v. Henry, 5 Hill, 481.

Anthon referred to the clause in the lease, prohibiting the conveyance of any interest whatever in the premises, by the tenant, without the written consent of the landlord, and considered this right of common way as claimed a violation of the lease, unless a consent in writing from the landlord was produced, and that the covenant was introduced, among other things, to prevent the creation of these implied rights.

Jokes, O. J. I think the opening of the door, by the permission of the landlord, made the hall $ common way, and that the right to pass and repass was a mere privilege which did not require a written assent. The covenant must be confined to the granting of exclusive interests by the tenant. I shall, therefore, charge the jury, that if they find the fact to be, that the landlord allowed such door to be opened; that this gave a right of way through the hall for persons and things from the room separately demised, and that the landlord could not seize such goods so passing for the rent of the principal tenant.

(1)

Verdict for plaintiff.

It seems very doubtful whether the case relied upon, to establish the subtle position finally ruled in this cause against the defendant, was properly applied.

The hall, where the seizure of the plaintiff’s property was made under the distress warrant against the chief lessee, was a part of the'premises expressly and exclusively demised to her, and plaintiff’s property was thus seized for her rent, because it was found on a part of the premises out of which her rent issued. This right has at all times belonged to the landlord at common law.

In the case of Winslow v. Henry, (5 Hill, 481,) I do not understand this rule to be at all impugned. The chief justice there speaks of a seizure for the rent of another, “on a common undemised entry" of a dwelling, out of which consequently no rent issued; and Says, “if this distress was authorized, the goods of every tenant, enjoying the right of passage, in common with the plaintiff, might be seized for rent, due from the latter, while being conveyed to and from the rooms occupied by them.

In the principal case, the fact that the hall was actually part of the premises demised to the chief tenant, and that her rent issued in part out of it made all the difference. The effect of her verbal permission to the plaintiff, to open a door from his room on that hall, when he had already ingress and egress through another part of the premises, presented the question of the landlord’s right to distrain in a very different point of view. Had all the formalities, required by the original lease for a sub-letting, in whole or in part in this particular, been observed, or conceding the position of the chief justice that the verbal assent of the chief landlord, without these formalities, was enough, it might have been contended (with what success it is useless here to remark,) that the goods of the plaintiff were in the hall by the landlord’s license, and, therefore, not distrainable for the rent of the chief tenant, to whom it had been demised.

That the case, on which the decision however was founded, was inapplicable, appears, also, from Buzzard v. Cassel, (8 Barn. & Cres. 141,) on which that case professes to be founded. - There the right to distrain was expressly denied, because, by the terms of the lease, the locus in quo was not part of the demised premises, a mere privilege or easement appurtenant to lands demised, being in the tenant, out of which privilege or easement no rent issued.

This case was adjusted between the parties, and proceeded no farther. A branch, however, of the controversy found its way into the supreme court, (Milford v. Walker,) where one of the points, raised by the plaintiff in this case, received the direct adjudication of that court on demurrer. It being there unanimously held, that under the reservation of rent in this lease, the tenant could not be allowed to go behind the seal, and show that the payment of $10,000, for furniture, formed a'part of it, and, therefore,, as such, could not be distrained for.