88 N.Y.S. 228 | N.Y. App. Div. | 1904
A single question is presented by this appeal: Can a life tenant recover of á sub-tenant, who has committed'waste upon the premises, full indemnity for the injury to the premises, including not only his own loss, but the loss to the remainderman ? The plaintiff is a life tenant of the premises upon which the waste was committed. It does not appear to whom the property goes after his death. The defendant committed waste which has been held by the referee to-have been no injury to the estate of the life tenant, but to have injured the estate of the remainderman to the extent of seventy-five" dollars. For this damage, however, the referee has held the defendant liable to the remainderman and not liable to the plaintiff. Of this holding the plaintiff complains, contending that by the wrongful; ¡ act of the defendant he has been made absolutely liable to then/ remainderman for the damage caused by the defendant’s waste. To, the extent of this liability, the plaintiff insists that he may recover, both for his own protection and as trustee for the „ remainderman. • -
That a life tenant is liable to a remainderman for a waste committed by a stranger is not questioned by the counsel for the defendant. The rule st ems to be clearly stated in Cook v. Champlain Transportation Co. (1 Den. 104). The opinion in part reads: “ I pass by the first ground stated,, for the last seems decisive of the question. The plaintiffs claim that the mill was destroyed by the
The learned referee, however, admitting the liability of the life tenant, declines to recognize his right of action upon the ground that he has not been damaged until called upon by the remainder-man to satisfy that liability. This ruling he liases mainly upon the authority of Wood v. Griffin (46 N. H. 230). The saitie doctrine is .also held by one of the circuit judges of the United States in California Dry Dock Co. v. Armstrong (17 Fed. Rep. 216), which decision follows the New Hampshire authority.
With this holding of the referee we are not inclined to agree. There are strong reasons for giving this right of action to the life
Nor can he perfect his right of action by satisfying the damages' to the inheritance and then suing. The damages are unliquidated. Any amount which he pays in satisfaction must be paid at his peril, with his chance of establishing such amount as the damage done in an action against the wrongdoer. If the remainder is contingent, to whom shall he make satisfaction of the liability ? In such case I am unable to conceive of any satisfaction of that liability which would be binding if perchance another became entitled to the remainder upon the happening or not of the contingency named, /it will thus be seen that if the judgment below be well rendered a life tenant at the best is subjected to a dangerous hazard in being compelled to make satisfaction of an unliquidated claim to a remainderman upon his chance of being able to establish that claim in full as damage in his action against the wrongdoer. At the worst the wrongdoer has burdened the life tenant with an absolute liability to one who upon the happening of a contingency shall thereafter become the remainderman^without liability to the life tenant, and only with a remote liability to the person who shall upon the contingency thereafter
Other grounds might be urged upon whicli could be rested the liability of the wrongdoer to the life tenant for the injury to the inheritance. If perchance a building be burned by the negligence or wrong of a stranger, the life tenant is entitled to the moneys with which to rebuild that building that he may have the life use thereof. Even if a recovery for such an injury should be had by the remainderman, it is not clear that the court would not require the remainderman to rebuild the building with the proceeds of such recovery that the life use given by the deed be not restricted. 'Again, one who has wrongfully imposed a liability upon a life tenant to make good to a remainderman, should rightfully be required to provide him with the means whereby that liability could be satisfied. A life tenant thus injured should not first be required to . satisfy the liability and take his chance of reimbursement from the wrongdoer. Itl!ám!trlrTOattertoT!l5-WTOBgdtrerTó^lí^ he pays, if only he be not required to pay twice, and it will appear by /the rulings in analogous cases hereafter cited, that a recovery Sjgt the wrongdoer by the life tenant is a bar to a recovery by the f remainderman.
This conclusion is, we think, conclusively established in this State. In Cook v. Champlain Transportation Co. (supra) this rule of law was specifically held. In Austin v. H. R. R. R. Co. (25 N. Y. 334) it was again held, and there is no case in this State questioning these authorities. They are brushed aside by the learned referee upon the ground that the question was not there raised that the life tenant could not sue before satisfying his liability to the remainderman. Whether or not this question was discussed it was directly involved, and the authority must control our decision unless it be very clear that some principle of law was not called to the attention of the court, which, without substantial doubt, must lead to a different conclusion. We are not aware of any such principle of law which clearly antagonizes the conclusion reached in those cases. On the contrary, in analogous cases are found the statement
Notwithstanding this right of action by the bailee for the full value of the goods, the bailor also has a right of action for any permanent injury done to the chattel. (See 5 Cyc. 221, and numerous cases cited under note 2.) But a recovery by the bailee of the full value of the property or of. the full injury done is a complete bar to
1125 Mich. 499.) It will thus be seen that the law allows recoveries ‘ for liabilities incurred although not paid, and even against a defendant liable to another party for the same damage. There can, therefore, be no legal objection to this recovery by reason of the fact that the liability of the life tenant to the remainderman has not been satisfied. There are cases of contract liability, as in cases "of surety-ship, where a party made liable by the act of the defendant can only recover after having paid that liability. I know of no such case, however, where the liability caused by the defendant’s act had arisen out of a- tort or where such liability is unliquidated. It is only in case of a liquidated liability that the party made liable can with safety pay the liability and then sue to recover from the party whose act has created the liability. To hold such a rule in the case at bar would place the life tenant in unjust hazard to which rule we are not driven by any legal principle or by any controlling authority.
But it is objected by the defendant hat the dismissal of the
It is claimed that a life tenant is not given a right of action for any damages for waste by the statute (See Code Civ. Proc. §§ 1665, 1652 et seq.), and had none at common law. It would seem a sufficient answer to this contention tó cite the cases of Cook v. Champlain Transportation Co. and Austin v. H. R. R. R. Co. (supra). The giving of the right of action to the remainderman took from the life tenant no responsibility and in no way lessened his liability and, therefore, took from him no rights of action, which he theretofore possessed either for the purpose of compensating himself for the injury to his life estate, or for the purpose of indemnifying himself for his liability to the remainderman. For these reasons we think this judgment should be reversed and a new trial granted.
All concurred; Parker, P. J., in result.
Judgment reversed, referee discharged and new trial granted, with costs to appellant to abide event.