28 How. Pr. 221 | The Superior Court of New York City | 1864
By the court, It appears from the pleadings and by the evidence in the case, that the plaintiff as tenant, occupied certain premises known as No. 241, Bowery, in the city of New York, and that on the first of May, 1856, he held over after the expiration of his lease. The defendant, the incoming tenant, under a new lease and by virtue of the statute giving him the right, took legal steps to evict the plaintiff, and procured the proper warrant for that purpose, and under such warrant plaintiff was removed from the premises. The plaintiff claimed and endeavored to give evidence at the trial, that in the removal of his goods under the warrant, the defendant, rendered himself liable for injury to the plaintiff’s property, either through negligence or malice. Plaintiff further claimed, that in addition to his loss for such injury to his goods, the defendant prevented him from removing and taking away a temporary workshop,
It would seem to be conceded by both parties, because I find no objection taken at the trial, that the proceeding had before the justice, and the warrant issued thereunder to dispossess the plaintiff from the premises, was regular in all respects, and was in strict accordance with the statute, and that the plaintiff in this suit was liable to be dispossessed by virtue of said' warrant against' him. This being so, did the defendant, acting at the request of the constable, render himself liable in assisting to remove the goods in a careful and proper manner ? Clearly not. The warrant protected all, unless the defendant acted maliciously and wilfully, and of this there is no evidence.
The learned justice made use of the following language in a portion of his charge: “ One of the witnesses, the plaintiff I believe, testifies that the day on which the property was removed was a rainy, bad day; that it rained all day, and the property was put out in the storm, and necessarily suffered injury in consequence of that. If that
That the.use of this humane language by the justice, I have no doubt had a powerful effect upon the jury, and to a very great degree influenced their minds in arriving at a conclusion as to what their verdict should be, and although such advice would have been most kindly intended to Lowenbein, the defendant, to. desist from the execution of the warrant on that rainy day, and wait until the clouds would pass away and sunshine again break forth, yet I am constrained not to recognize this theory as sound law. To give encouragement to such a principle, would in the end embarrass the entire proceedings of our courts, and tend in a very great measure to defeat the aim and object of the law. The law does not, in this sense recognize the state of the weather, and it is for these reasons, without entering more fully into the case, that I find myself compelled to adopt the opinion that the judgment in this case should be reversed and a new trial ordered, with costs to abide the event.
Chief Justice Robertson and Justice Monell concurred.-.