21 N.Y.S. 764 | New York Court of Common Pleas | 1893
We have given to the case the consideration due to its importance and to the novelty of the point upon which its decision is suspended. Whether the order shall stand depends upon the correctness of three propositions affirmed by the trial justice in favor of the respondent, namely: That no due demand of the rent was made; that the demand was not made upon the tenant; and that, because of a judgment for the rent in behalf of the appellant, and an undertaking given by the respondent on appeal from that judgment, there was no effectual demand, and so no default.
As to the first proposition, it appears by the return that the landlord made demand of the “amount due for rent;” that the amount due had been ascertained and determined by a judgment between the parties; and that of this judgment the respondent had actual notice. The demand, therefore, was, in effect, of the sum so judicially decided to be due for rent. Demand of the amount of rent due, without naming the amount, is sufficient. McLean v. Spratt, 20 Fla. 515; McAdam, Landl. & Ten. 681. In reason, moreover, the tenant may be presumed to be as well apprised of the sum he owes as the landlord of the sum owing him. The technicality requisite at common law to a forfeiture of the tenant’s estate for rent in arrears has no place in a summary proceeding before a justice, since, manifestly, the strict observance of that techpicality is incpmpatible as well with the nature of the remedy as the
Equally untenable is the position that the demand was not made upon the tenant. That tenant was a corporation, and the demand was made of the person who executed the lease as president of the company, who said he was president, and that he had resigned, but his resignation had never been acted on; that, as far as he knew, he was president of the •company. The statement, being merely an extrajudicial declaration, was incompetent evidence; but it was admitted without objection, and, in the case, had all the effect of a valid proof. We are of opinion that, in the absence of countervailing evidence, it is sufficiently shown that the person of whom the demand was made was then president of the respondent company. “To complete a resignation it is necessary that the corporation manifest their acceptance of the offer to resign.” Willcox, Mun. Corp. 239; 1 Kyd, Corp. c. 3, § 4; Van Orsdall v. Hazard, 3 Hill, 243; Edwards v. U. S., 103 U. S. 471; 17 Amer. & Eng. Enc. Law, 169. It is not apparent that this common-law rule has been abrogated in the state of New York. The decision in Bank v. Colwell, 132 N. Y. 250, 30 N. E. Rep. 644, proceeded upon the principle that the director ceased to be such by the transfer of the stock, ownership of which was •a necessary qualification for the office. At all events, in the case at bar, it seems from the president’s statement that his resignation was contingent on its acceptance. Avowedly the respondent’s real reliance is upon the proposition that, because of the judgment for rent and the stay on -appeal, the rent was not legally demandable, and a default in payment not legally possible. A demand and a default in payment were requisite to support the proceeding. Code, § 2231, subd. 2.
What, then, was the effect of the judgment and the undertaking on -appeal upon respondent’s obligation to pay, and appellant’s right to demand, the rent? Indisputably the judgment operated a merger of the •cause of action for rent in the sense and with the effect that “ all its powers to sustain rights and enforce liabilities terminated in the judgment, and could not again be used as the foundation of a suit between the same parties.” 15 Amer. & Eng. Enc. Law, 336. In other words, the claim for rent was transmuted into a higher security, and instead of resting in covenant, became a debt of record. But, the right was not extinguished; on the contrary, it was made certain and invulnerable by the judgment. Nor did the judgment pay the rent, but only authenticated and confirmed the claim to it by an unimpeachable security. What effect, again, had the judgment on the right to prosecute this proceeding? The proceeding is upon the lease, but is not to recover the rent; and judgment of dispossession does not determine the amount of rent due. Kelly v. Miles, 48 Hun, 6. The proceeding is in pursuit of •another independent and collateral remedy available by law to the land
The judgment interposing no bar to the proceeding, the remaining question is, was it arrested by the undertaking on appeal from the judgment? The contention of the respondent is that the stay in the action ' for rent effected by the undertaking operated a suspension of appellant’s right to demand the rent in the proceeding for dispossession, and that, as the appellant has no right to demand, the respondent is not in default by refusal. The effect of a duly-perfected appeal is to “stay all proceedings to enforce the judgment appealed from.” , Code, § 1310. In Ireland v. Nichols, 40 How. Pr. 85, 86, the court,says: “The proceedings here referred to must be construed to mean such proceedings as may be instituted by the respondent for the purpose of enforcing the provisions of the judgment.” In Morey v. Tracey, 92 N. Y. 581, 583, the court held that a stay on appeal is effectual only against a proceeding “ to enforce the plaintiff’s rights under the original judgment, or to obtain the fruits of it.” That the proceeding to dispossess is neither an enforcement of appellant’s rights under the judgment, nor an effort to obtain the fruits of that judgment, is too obvious for argument. Appellant’s right under the judgment was to the rent in arrear, and that he neither sought to recover nor could recover in the present proceeding. The “fruits” of the judgment was the money thereby recovered, but the object and end of this proceeding is, not that money, but simply possession of the premises. Nor does a stay on appeal impair or affect, the-right determined by the judgment, but only arrests all further proceedings to enforce it. Bowman v. Tallman, 19 Abb. Pr. 84; In re Berry, 26 Barb. 55; Ward v. James, 8 Hun, 526. Hence the inevitable corollary that the judgment and stay on appeal did not impair respondent’s liability for the rent, or appellant’s right to receive it. Both the-right and the liability still subsist, and, though not in their original form, yet in their original vigor and validity. There was a right, there
Order reversed, and new trial ordered; costs to abide the event.