196 A.D. 304 | N.Y. App. Div. | 1921
The complaint contains three counts. The first is for damages consisting of disbursements required to be made by plaintiff owing to the failure of the defendants as the plaintiff’s tenants of premises in the borough of Manhattan, New York, to remove their property from the premises on the expiration of their lease and after final order of the Municipal Court made on the 5th day of February, 1917, in a summary proceeding instituted by the plaintiff as landlord against them, which awarded the possession of the premises to the plaintiff, and pursuant to which a warrant was duly issued on the 7th day of February, 1917, to the sheriff of the county or to any marshal of the city commanding the officer to remove the defendants from the premises and to put the plaintiff in full possession thereof. The damages are alleged to consist of the sum of $245 expended and paid out “ by or for the account of plaintiff ” in removing the property of the defendants and putting the plaintiff in full possession of the premises pursuant to the command of the warrant; and it is alleged that payment thereof was duly demanded of the defendants and refused. The second count is for damages for the failure of the tenants to keep the premises in repair as required by the lease; and the third is for damages for the failure of the tenants to remove rubbish and clean up the premises at the expiration of the term. The second count was dismissed by the court without objection at the close of the plaintiff’s case. The original answer merely contained denials of certain material allegations of the complaint. At the opening of the trial, on the admission by the defendants of all of the
The evidence on the part of the plaintiff shows that Mr. Walsh, one of her attorneys, ordered City Marshal Peyser to obtain the warrant from the clerk of the Municipal Court and to execute it, and that the marshal obtained the warrant and executed it by ordering his assistant, one Lax, to employ men to remove the property of the defendants; that Lax employed thirty men the first day, fifteen the second day, ten the third day and one-half of the fourth day, at four dollars each per day, aggregating two hundred and forty dollars, which was the reasonable value of their services; that Lax superintended their work and did not see them commit any acts damaging the furniture of the defendants. The lease provided that the defendants were to use the premises for the sale of desks and office furniture only. It appears that the premises leased by the defendants consisted of a ground floor and basement and sub-basement in which they carried on a second-hand furniture business. Lax testified that the basement and sub-basement were full of furniture and partitions, “ all big, heavy, bulky stuff,” and that the area of the premises was about 40 by 300 feet and that one piece of furniture was as wide as and about half the length of the court room and required fourteen men to move it. On cross-examination he testified that the men employed by him put the furniture on the sidewalk and in the alley; that other men, evidently in the employ of the defendants, were engaged in moving it therefrom to a new store in the neighborhood; that Mr. Walsh told him to remove forthwith the property of the defendants from the premises and to get the
At the close of the plaintiff’s case the defendants moved to dismiss the third count for removing the rubbish, and the motion was denied; but they made no motion to dismiss the other count. The only evidence offered by the defendants was the testimony of the defendant Frank M. Finn. He testified, among other things, that before the marshal came there, the defendants had removed the furniture from the store or street floor; that the greatest number of men employed in removing the furniture under the warrant was eight, and that at times there were only three or four so employed; and that as the furniture was moved onto the sidewalk and into the alley the defendants with from eight to ten men
It thus appears that the case was tried upon the theory, acquiesced in by the defendants, that the plaintiff was entitled to recover unless the property was unnecessarily damaged in an amount greater than plaintiff’s claim, for on no theory was plaintiff’s right to recover questioned until after the evidence with respect to the damages had been presented by the defendants. The jury allowed the claim of the plaintiff to the extent of $245 which, as to the amount, was warranted by the evidence; and also allowed the claim of the defendants to the extent of $1,000 as demanded in the counterclaim, and with respect to the amount, that finding is amply sustained by the evidence. Counsel for the appellant claims that since the warrant was regularly issued and was valid and authorized the removal of the property, his client is not responsible for the acts of the marshal thereunder or of those employed by him; that since it was not shown that she authorized her attorney to direct the marshal’s assistant or employees to break up the furniture, such direction, if given, was in excess of his authority and she is not liable therefor; that the marshal had authority to employ men to assist him in executing the warrant and that even if the plaintiff authorized or requested their employment, they were acting under and subject to the control of the marshal and she is not responsible for their acts; that in view of the charge that Lax and the men employed by him were the agents of the marshal, the counterclaim should not have been submitted to the jury and plaintiff’s motion to dismiss it should have been granted and that the court erred in instructing the jury that the plaintiff was liable for damages caused by the negligence of the employees of the marshal in removing the property. With respect to these points of law there is a dearth of statutory or judicial authority, and the decisions bearing thereon are not in harmony. It seems quite clear that the warrant, which requires not only that the tenant shall be removed but that the landlord shall be put into full possession of the premises, authorized and required the marshal to remove the property of the tenants; but it appears that the marshal is only
In no other manner, however, than by the removal of the tenants and their property could there be a full compliance by the marshal with the command of the warrant, which follows the phraseology of section 2251 of the Code of Civil Procedure and commands the officer to remove all persons from the premises and to put the landlord in full possession thereof. These provisions are broader than the statutory provisions applicable to a writ of possession to be executed by the sheriff which are contained in' section 1373 of the Code of Civil Procedure and require the sheriff “ to deliver the possession of the property, within his county, to the party entitled thereto.” It is well settled that it is the duty of the sheriff in executing such a writ to remove from the premises the property and effects of the person against whom the writ is issued. (Crocker Sheriffs, § 571; 3 Freem. Ex. 2465, 2470 ; 9 R. C. L. 934; Witbeck v. Van Rensselaer, 64 N. Y. 27, 32; Lee Chuck v. Quan Wo Chong Co., 81 Cal. 222, 229.) Both with respect to a marshal or constable acting under a dispossess warrant in summary proceedings and with respect to the sheriff acting under a writ of possession, the statute merely provides for. a specific nominal fee of one dollar for a marshal (Municipal Court Code, § 178), fifty cents for a constable (Code Civ. Proc. § 3323) and one dollar and fifty cents for a sheriff outside of New York county and other counties specified, and five dollars in New York county and in other specified counties included in the city of Greater New York, and traveling fees (Code Civ. Proc. § 3307); and with respect to a marshal it is provided in said section 178 of the Municipal Court Code, in effect, that he shall perform all services which he is required by law to perform without further compensation. It is manifest, however, that it would be unreasonable to require a marshal executing such a writ and receiving only one dollar therefor, to remove the tenant's property and effects personally, for in many instances, as in the case at bar, that could not be done by a single individual, or to pay
There having been no appeal by the defendants, we are not concerned with the verdict in so far as it was in favor of the plaintiff, excepting to consider whether, in the event of a reversal, a new trial should be granted or judgment should be directed on the verdict in favor of the plaintiff. With respect to the defendants’ counterclaim it is now contended that the damages claimed were inflicted by those employed by the marshal to execute the warrant and that even though the marshal may have exceeded his authority, and may have failed to exercise proper care and his employees may have been guilty of willful, malicious or negligent acts causing the damages, plaintiff is not responsible therefor. Counsel for the respondents contends, however, that the plaintiff in suing for the money expended in paying those employed by the marshal must be deemed to have ratified their acts. I think that does not follow. It does not appear that the expenses were increased by the alleged wrongful or negligent acts and the plaintiff only sought a recovery for the amount which it became necessary for her to pay to have the property of the defendants removed by and under the direction and supervision of the marshal. I think that does not make her responsible for the acts of the marshal or of those employed by him. The warrant protected them to the extent that their acts were authorized thereunder and if they went beyond its authority, they became trespassers and doubtless are hable therefor. If the attorney for the plaintiff directed the breaking up of the property, there is no evidence that she authorized it and, therefore, she is not liable. (Welsh v. Cochran, supra; Guilfoyle v. Seeman, supra; Young v. Stone, supra.) I am, therefore, of opinion that the determination of the Appellate Term should be reversed, with costs, and the judgment of the Municipal Court should be modified by dismissing the counterclaim and setting aside the verdict in favor of the defendants thereon, with costs, and by awarding judgment for the plaintiff on the verdict in her favor, with costs.
Clarke, P. J., Smith, Page and Merrell, JJ., concur.