3 Daly 1 | New York Court of Common Pleas | 1869
By the Court.
The Society had voted the sum of $7,000 in the year 1860, to defray its annual expenses, and the sum of $6,000, for that purpose, in 1861, which was to be raised by an assessment upon the pew owners, at the original valuation of their pews. The original valuation of all the pews in the church, was $79,550, and that of the plaintiff’s pew was $800. An assessment of ten per cent, upon this valuation would have sufficed to raise either of the sums voted in the year 1860 or 1861, provided the assessments upon all the pews were duly paid. It may be, however, that, to provide against the contingency of a non-payment of all .the assessments,
Another view may be taken of this case. If, as the plaintiff claims, an assessment of fifteen per cent, was unreasonable or improper, he was at least bound to pay, to the extent of ten per cent, upon the valuation of his pew, but, during two years, he has neither paid nor offered to pay anything. He insists upon maintaining his right of ownership in the pew during this period, though contributing nothing to the support of the Society. Where a court of equity interposes its aid to relieve against a forfeiture, it does so only upon the payment of the amount due, together with the interest (Story’s Equity Jurisp. § 314), and it consequently follows that when a party comes into a court of equity to ask it to enjoin another party from doing any act towards the enforcement of a forfeiture for the non-payment of money, it should appear that he has paid, or offered to pay, to the other party, what that party is justly or equitably entitled to. It is a familiar maxim that he who seeks equity must do equity, and before the plaintiff could have the aid of this court to enjoin the defendants from selling his pew as 'forfeited, he would have to offer to pay the defendants, according to his own
The resolution of the board of trustees, providing for the remission of forfeitures upon pews, was, by its terms, limited to cases where the owners had given or should give a written con-, sent to the society to rent the pews and receive the rent for the use of the society. It was shown by the plaintiff’s testimony that he never gave any consent in writing authorizing the trustees to rent his pew in pursuance of this resolution, and, in addition, that the resolution was disapproved of at a meeting of the society, and declared by the vote of a large majority to be unauthorized. This evidence was a complete answer to this alleged ground of action.
It is insisted, as a further cause of action in the complaint, that the lease of the ground upon which the church edifice stands will expire in five years; that the plaintiff will be entitled, at the sale of the church edifice, at the expiration of the lease, to his proportionate share of the proceeds, of which he will be deprived by a sale now of his rights and privileges in his pew. The plaintiff’s claim that he would be entitled to a proportion
It was one of the conditions of the instrument executed by the defendants to the plaintiff, that he should, upon withdrawing from the church, offer the pew to the standing committee of the board of trustees at the sum originally paid for it, and that if the committee should, after the space of thirty days, neglect or refuse to pay for it, after deducting all arrears that might be due, then he might, after having paid up all arrears, sell it subject to the same conditions upon which, he held it, and that a non-compliance with the condition should operate as a forfeiture of the pew to the society. The offer of it at the original price to the committee was a condition precedent to the sale of it, and, as forfeitures are always to be strictly construed, I doubt if the conditions extended beyond it. The plaintiff ad
It is objected by the respondent that the points now relied upon by the defendant to show that the action could not be sustained were not raised or passed upon in the court below. If they were not, they are not available now upon appeal; for it is a familiar and long-established rule, applied alike in courts of law and equity, that the appellate tribunal will not reverse a decision upon a point which was never raised or considered in the court below, unless there was a total want of jurisdiction in the court to grant the relief sought or to give the judgment; for it was said by Chancellor Kent, in Gelston v. Hoyt (13 Johns. 577), the court below cannot be said to have committed an error when their judgment was never called into exercise, and the point of law was never taken into consideration. But in the present case, we do not know from anything which is before us, whether the points relied upon, were raised upon the trial or not. It appears from the printed case, that when the plaintiff’s testimony was closed, the defendant moved for a dismissal of the complaint; that the motion was denied, and that the defendant excepted; but the grounds upon which the motion was made, if any were stated, do not appear. It is usual upon making such a motion, to lay before the court the grounds upon which it is founded. It is the right of the court to know, and it is the duty of the party who moves, if required, to state them, and where he states his grounds, he will not be entitled afterwards to have the judgment reversed, because the motion ought to have been granted upon another ground not specified or brought to the attention of the court (Belknap v. Scaley, 14 N. Y. 143; Crook v. Mali, 11 Barb. 206, 211). Before the Code, a motion for a nonsuit brought up the question, whether the proof was sufficient to support the declaration ; and if the plaintiff proved his case as laid, the motion would be denied, for the sufficiency of the declaration could be
Judgment reversed.