Williams v. Potter

2 Barb. 316

• Court: New York Supreme Court
• Decided: January 4, 1848
• Status: Published

Opinion

By the Court, Willard, J.

The objection, raised for the first time on the argument, that the declaration was for the whole of lot No. 27, and the lease covered only the north three-fourths of the lot, and that the judge directed a verdict for the plaintiff for the premises mentioned in the declaration, comes too late. It rvas not pretended that the defendant was in possession of any land not covered by the lease; nor, in short, did the plaintiff claim any other, on the trial. The verdict cannot injure the defendant, and it can be conformed to the proof on a proper application. This is not the way to correct it.

It is now objected that the plaintiff showed no title to the land. This objection was not raised at the trial, unless it was embraced in the general motion for a nonsuit. The attention of the court and counsel was not drawn to it. As between the plaintiff and Merchant, the immediate lessee, the acceptance of the lease was an admission of the lessor’s title. It is fair to infer from the testimony of Boyd, that Merchant and those succeeding him, had paid rent to Williams up to within six years of that time; thus leaving a period of above twenty years during which rent had been paid. The jury had a right to infer that the defendant was in possession as assignee of Merchant. He was called on for rent by the plaintiff’s agent, and did not pretend to any title hostile to Williams, nor deny the fact that rent was in arrear from him. He admitted himself in possession, denied that there was any property on the premises to countervail the arrears of rent, and requested the present suit to be brought against him for the recovery of the premises. Moreover, he suffered the cause to be tried as an inquest. There is nothing in these objections.

The only question gravely raised on the trial, was whether since the act entitled “ an act to abolish distress for rent, and for other purposes,” passed May 13, 1846, (Laws of 1846, p. 369,) the lessor of a lease executed prior to that time, in which the right of distress and re-entry for the non-payment of rent was expressly stipulated, could re-enter without giving fifteen days’ previous notice in writing to the tenant, of such intention to re-enter. The circuit judge expressed the opinion to the jury that the statute in question did not affect this case; inasmuch as the lease in question was executed many years before the law was passed. Assuming that the revised statutes relative to the recovery of possession of demised premises for nonpayment of rent, by ejectment, (2 R. S. 505,) are still in force, the plaintiff proved enough to entitle him to recover. In the case of The Trustees of the First Incorporated Presbyterian Congregation in Salem v. Williams, (9 Wend.147,) the admission of the tenant, made at the time of the service of the declaration, that there was not sufficient property on the premises liable to distress to countervail the arrears of rent, was held to conclude the defendant, and he was not permitted to contradict it; though he offered to do so. In the present case, the defendant did not ask to contradict his admission. He did not offer to show to the contrary; and the remark of the judge in his charge, whether correct or not, seems to be pointless. The third section of the act of 1846, does not repeal the mode prescribed by the revised statutes for a re-entry. It provides an additional method for conducting it, by substituting a fifteen days’ notice in writing of the landlord’s intention to re-enter, in lieu of showing that there was no sufficient distress on the premises. Abolishing the right of distress did not necessarily take away the remedy by ejectment for non-payment of rent. It was competent for the legislature to regulate that remedy. As they had taken away one remedy from the landlord, that of distress, they probably deemed it expedient to enlarge the remedy by ejectment, and to extend it to a class of cases to which it did not before apply. They have now made it applicable to a tenant on whose premises there is a sufficient distress, provided a notice of such intention, in writing, is served on the tenant fifteen days before the suit is commenced. The remedy thus modified is not incompatible with the former one which required the landlord to prove the absence of a sufficient distress. Both remedies may subsist together, and the landlord be left to elect between them. The repeal of a statute by implication is never favored. Unless the latter statute is manifestly inconsistent with, and repugnant to, the former, both remain in force. Courts are bound to uphold the prior law if the two may subsist together. (See 5 Hill, 225, 226 ; 9 Cowen, 506.)

But admitting that the law of 1846 has worked a repeal, by implication, of the revised statutes, as to re-entry for non-payment of rent, I am still of opinion that the cause was rightly disposed of at the circuit. The request of the defendant to the plaintiff’s agent to bring this suit, ought to be treated, if necessary to uphold the proceedings, as dispensing with notice in writing. A party may waive the performance of a statutory requirement made for his benefit. In addition to this, the objection of the defendant’s counsel did not point to the want of notice. It was general. Had the objection been specific, it might, for ought we know, have been obviated.

New trial denied.