Wisner v. . Ocumpaugh

71 N.Y. 113, 1877 N.Y. LEXIS 475

• Court: New York Court of Appeals
• Decided: November 13, 1877
• Status: Published

Opinion

Per Curiam.

After an examination of this case, it is deemed sufficient to state our conclusions.

1. The lien clause created an equitable lien upon all property which was at the time in the premises leased, and also upon property thereafter brought in, which would attach as soon as the property was acquired by the lessees, and brought into the premises, and the clause was binding between the parties. (65 N. Y., 459.) In Hale v. Omaha Nat. Bank (49 N. Y., 626), there was an agreement for a future lien; this created a present lien. 2. The plaintiff occupied no better position than the lessees in respect to said lease, and the rights of the lessor under the same. During the period that he was a special partner, the property of the firm was absolutely bound, and he could not, during that period, acquire any rights adverse to the rights of the lessor in the lease, whether he had personal knowledge of the particular clause under consideration in the lease or not.

The referee has found that, from the dissolution of the special partnership, to the time of the purchase of the goods by the plaintiff, he was a general partner with Williams, in whose name the business was carried on. The facts found by the referee on this subject are somewhat ambiguous. He finds that the interest of the plaintiff was in no way relinquished or abandoned, and that the business was carried on in the name of Williams, with the consent of the defendant. These facts might exist and defendant not bé a partner; a mere delay in withdrawing his interest or capital would not constitute him a partner.

The evidence is not given in the record. Every presumption is in favor of the findings of a referee, and we cannot say, as matter of law, that the inference drawn by the referee Was not warranted. The referee also finds that, after the purchase by the defendant, he occupied the demised premises under this lease. He knew of the lease, although not of the lion clause.

We think the relation he sustained as a party in interest, in the occupation of the demised premises under the lease, precluded him from claiming exemption from its provisions. He may have been a bona fide purchaser in a sense, but not as against this lease. In legal effect, he purchased subject to the lease. His want of knowledge of the hen clause will not protect him. He was bound, by its terms, as a party in interest.

3. The point that the defendant voluntarily abandoned Ms lien, by not objecting when he saw the property in the cart, after it had been taken from the premises, is not tenable. The lien was not dependent upon absolute possession in the defendant, but vested in contract, and attached to the property when in possession of the lessee, or any one standing in his place. The authorities cited are not applicable.

4. The rights of the parties must be determined at the commencement of the action. Although an equitable defense is allowable to a legal action, it does not, when interposed, change the character of the action, nor authorize transactions subsequent to the commencement of the action to be shown, to affect the rights of the parties to the action, as they existed when it was. commenced.

Whatever rights the plaintiff may have for subsequent acts of the defendant, or for an accounting, are not affected by this judgment.

The judgment must be affirmed.

All concur, except Rapallo, J., not voting.

Judgment affirmed.