Kiersted v. Orange & Alexandria Railroad

54 How. Pr. 29

• Court: New York Supreme Court
• Decided: March 15, 1876
• Status: Published

Opinion

Daniels, J.

The motion was made to set aside the referee’s report, because he was not authorized to hear the cause, or competent to hear it; that his report was not authorized by the evidence, and he refused to find facts which had been proved in the case, and was prejudiced against the defendants. The first of the grounds is the only one worthy of any consideration for the purpose of deciding the appeal from the order. For, if the report was made without evidence to sustain it, the mode which has been provided for reviewing that, is an appeal from judgment recovered upon it, and that has been taken in this case. And if the referee declined to find facts, which he ought to have found under the evidence, a motion should have been made for an order, requiring further finding as to such facts (Tallmann agt. Bresley, 58 N. Y., 123).

His omission in that respect furnished no good reason for setting aside the report on motion. The charges of incompetence and prejudice were supported by a general affidavit made by the defendant’s counsel, very slightly indeed sustained by that of another person, who was with him on two occasions during the trial. The affidavit of the defendants’ co unsel was fully met and overcome by those made by the plaintiffs’ counsel, and the. two stenographers present, during different parts of the trial; for they show the charges made to have been without the least foundation. The referee was apparently disappointed with the decision of the court directing a new trial, but beyond that nothing remarkable appeared in his statements or conduct.

The reference was ordered upon filing the consent of the respective parties, and by the order made the action and the issues therein, were referred to be heard and determined. At the time when it was entered the complaint was upon a lease in writing executed under seal for the occupancy and enjoyment of certain demised premises on Broadway in the city of Hew York. Afterwards it was, upon special motion, changed to a claim for the use and occupation of the same premises. But no change in the order of reference was either provided for or made, that was allowed to stand as it had been entered. The order made upon the motion simply provided for an amendment of the pleadings without disturbing or affecting the reference which had previously been directed with the consent of the parties.

It was no part of the design to vacate or interfere with that. Ho such relief appears to have been applied for, and it in no way resulted from a mere amendment of the pleadings. Such amendments are within the ample powers for that purpose conferred upon the court (Code, secs. 173, 174, 177,) and they are very commonly made, and are not supposed or intended to abrogate a previous reference of the action without some expression of the existence of that purpose. The combined effects of both the orders was to place the cause before the referee for trial upon the new issue, the same as though that had been the one originally joined. And, when the judgment was reversed and a new trial ordered, that, as a matter of course, was to be had in the same way, because the order of reference still continued operative in the case. While the order continued in force that supplied the referee with complete authority to proceed as he did with the last trial of the action. There was' only one way in which that could have been avoided, and that was by a motion to vacate the order of reference, which was not made by either of the parties. No other reasons deserving any particular consideration have been urged in support of the objection taken to the authority of the referee to hear and determine the case. The motion made to set aside his report was very properly denied.

The plaintiffs themselves leased the demised premises and others from the 1st of May, 1860, until the 1st of May, 1863, and by a lease executed by them and their lessee they leased the premises in controversy to David 0. Smith, who was the agent of what was called the Virginia and Tennessee route, which was comprised of the defendants’ railroads. The lease was made on the 1st of November, 1860, for a term extending from that time until the 1st of May, 1863. On the 1st of April, 1862, the plaintiffs surrendered the lease made to them by the owner of the property, but by the terms of the agreement they were to be allowed to collect the rent in suit if that should be done by the commencement of the year 1864. That was not done, and for that reason it has been objected that the action could not be maintained by the plaintiffs. The proofs, however, showed that .the owner reassigned the demand to them by an instrument in writing, dated on the 12th day of May, 1869, which was before the commencement of the action, and that transfer was made upon the understanding that the owner and assignor was to be paid out of the proceeds of the recovered $2,150 owed him by the plaintiffs for rent reserved on the lease received by them. The residue, whatever it might be, resulted to the plaintiffs, and that, under the circumstances shown by the evidence, was sufficient to entitle them to prosecute and maintain the action against the defendants in their own names. They were owners of the demand, in part, and trustees of an express trust as to the residue (Howe agt. Savond, 49 Barb., 403; Waring agt. Indemnity Fire Ins. Co., 45 N. Y., 606; Noe agt. Christy, 51 id., 270; Code, sec. 113; Devoe agt. Barnes, first department, May, 1876).

The evidence showed that the lease was taken by Smith, the lessee, under a .general employment by the defendants, as the Great Southern Mail Route, for the purpose of selling their tickets and transacting their business in the city of New York, and with the expectation that they were to become parties to it. For that purpose he and the persons in his employment occupied the premises demised by it until the last day of March, 1861, when he left them in the possession of Stewart who, at that time, was his clerk. The officers of the defendants, or most of them, repaired to the city of New York for the purpose of completing the undertaking and arranging the business of the route in April, 1861.

But they were prevented from completing their business by the assault upon Fort Sumpter and the precipitation of the civil war. The president of the Orange and Alexandria Railroad Company did, substantially, accept the lease, but it was done under the qualification that it should only become binding on his company when all the rest assumed it; and .as that was never afterwards doné its terms remained binding and obligatory alone upon Smith, the lessee named in. it (Briggs agt. Partridge, court of appeals, March, 1876).

When he left he made no assignment of the lease, neither did he underlet the premises to any other person. He simply went away from them himself, leaving whatever he had belonging to the defendants in the office he had taken for them, and after that Stewart continued in charge until the 2d or 3d of April, 1861, when White testified that he was sent by the officers of the route to take charge of the office, and that he did so, and held possession of the Great Southern Mail Route. This possession continued until the 26th of August, 1861, when he took his departure, leaving Stewart in control of the premises. While White was there he stated that he kept possession as long as he received instructions from the officers of the defendants, and left when a deputy of the sheriff, who for a part of the time held control on a claim or debts prosecuted against them, abandoned the premises. .

It also appeared that the rent was paid as it was reserved in the lease, up to the 1st of May, 1861, by Smith and Stewart, and that the defendants contributed their respective shares of such payments.

After White left, Stewart remained in possession until the 10th or 12th of February, 1862, when the plaintiffs re-possessed themselves of the premises, by requiring his removal therefrom. From the 1st of May, 1861, to that tim'e, no rent was paid ; and the evidence of one of the plaintiffs, which on that subject was uncontradicted, was that the use of the premises was reasonably worth the rental mentioned in the lease, and that was the amount allowed by the referee.

In April or May, 1861, White stated that he received instructions to pack up and take the office furniture and things away through Knoxville.and Memphis. But no information of that fact was given to the plaintiffs, and the instructions were in no way complied with by the agent who received them, and who was in, according to his own testimony, by the direct orders of the defendants. He remained until August, and then left the office with Stewart in charge of it, who continued to hold it for the defendants until the final surrender made in February, 1862. His agency and authority for that- purpose were denied by the defendants, but it appeared that he afterwards sued them for his services and attached their property for the debt claimed to have been created by their performance, and that the debt was after-wards paid by the defendants. .The evidence given on the part of the plaintiffs from which this fact appeared, was materially strengthened by that of the witness Barbour, the president of the Orange and . Alexandria Railway Company, who stated that the settlement with Stewart was made by the line. He also testified that his company paid its share of Mr. Stewart’s bills as clerk of the lessee, Smith. The defendants’ witness, Gott, also swore that he recollected of Stewart’s receiving his money from them. Both Barbour and the defendants’ counsel testified that the settlement of Mr. Stewart’s claim was a matter of policy, and the latter stated further, that this was mentioned to the attorney receiving the amount of the claim. What the defendants’ policy was in this respect, was not disclosed. It may very well have been to relieve the defendants’ property from attachment, by paying a debt for which they were legally liable, consistent with the statements of these witnesses, and what was the probable fact in the case. And in contradiction of the statement made that such was the reason assigned for the settlement, the attorney for Stewart swore that he made no negotiations or settlement, and had no recollection that it was said to be made as matter of policy.

It is very likely from the circumstances shown and the evidence of all the witnesses, that Stewart was paid, because the defendants had no good ground for resisting the claim made in his behalf, for the performance of his services, and that was an im equivocal recognition of his agency for the defendants while he continued in possession of the premises. Beyond that it appeared, by the evidence of Barbour, that Stewart was appointed at one of the general meetings of the line, and before the next was held, they decided to break up the office, and he declined to swear that Stewart did not act as the agent of the defendants, and presumed the tickets sold by Stewart were received on the road as long as he sold them. The evidence of his agency was ample for the purpose of subjecting the defendants to the legal consequences of his acts. And while they never became liable under the lease given to Smith, they had the benefit of the actual occupancy of the premises through Stewart, by the assent and permission of both Smith and plaintiffs, from the last day of March, 1861, until the middle of February, 1862. And as that was not under an assignment of the lease, or by the creation of a sub-tenancy, it must have been with the understanding that the defendants assented to pay the rent as long certainly as the occupancy extended. The payment of it to the first of May, as well as the other circumstances referred to, are consistent with no other supposition. A case of use and occupation was therefore shown within the decision previously made by this court in this case (Kiersted agt. Orange and Alexandria R. R. Co., 8 N. Y. Sup. Ct., 151; see also 2d ed. Taylor's Landlord and Ten., secs. 640, 643).

The occupancy commenced under the direct authority of the defendants, given to White before the assault upon Fort Sumpter, which has been held to be the beginning of the civil war, and it continued through him and Stewart, who acted with and sueeeeed him, until near the middle of February following. The contract to be implied from the circumstances was not, therefore, made while the war existed, but it preceded it, and for that reason it was not rendered void by the existence of the subsequent hostilities within any of the authorities cited by the learned counsel for the defendants. They received a performance of it on the part of the plaintiffs by their agents, who were within the Union lines, and though their liability could not be enforced while the war continued, it could be afterwards, as it has been, by the prosecution of the present action.

This was substantially held in the case of Buchanan agt. Curry (19 Johns., 137), and the soundness of the conclusion does not seem to have been anywhere questioned. Uo good reason can be perceived for exonerating the defendants from the payment of this rent because of the existence of the civil war. If they desired to escape liability they should have withdrawn their agent and property from the office and terminated their occupancy of the premises. And that they entirely failed to do. A suspension of the sale of their tickets was not sufficient to discharge them. The conclusions of the referee were well sustained by the evidence, and they render the defendants legally liable for the rent in suit. The judgment and order appealed from should be consequently affirmed, with costs.

Note.—April, 1877. The court of appeals reversed the judgment and granted a new trial, Ahdkews, J., delivering the opinion. The new trial was granted on questions involving the merits, and the court of appeals cuppewr to hold that the practice as to vacating orders of reference, on the reversal of judgments, depends upon the practice of the court in which the action is pending. In the case of Devlin agt. The Mayor {ante, 11) the chief justice stated orally that'the court was of the opinion that a reversal of a judgment on the report of a referee, did not vacate the order of reference— [Ed.