63 N.Y.S. 748 | N.Y. App. Div. | 1900
Lead Opinion
The complaint in this action alleges that the plaintiff, as trustee under the will of one Hull, holds, for the purpose of receiving the rents, issues and profits, and applying the same to the use of persons' specified, certain real estate situate on the correr of Fifth avenue and Twenty-sixth street, in the city of Hew York, next to and immediately adjoining which are other pieces of real estate owned by the defendants; that the real estate owned by the plain
The defendant Seilliere demurred to the complaint, upon the. .ground (1) that it did not state facts sufficient to constitute a cause of action ; and (2) that the receiver of the Hotel Brunswick and the mayor, aldermen and commonalty of the city of Hew York were ■necessary parties defendant. The demurrer was overruled, and from the judgment thereafter entered, this appeal is taken.
"We are of the opinion that the demurrer was properly overruled. The jurisdiction of a court of equity to entertain an action to apportion the amount of a charge upon real estate, between different ■owners, is well.settled. Such actions have heretofore been entertained by our courts for the apportionment of water rates. (Graham v. Dunigan, 2 Bosw. 516; Linden v. Graham, 34 Barb. 316.) It is, however, suggested by counsel for the appellant that a court of equity will not exercise the power which it possesses in. this respect until the whole charge has been satisfied by an actual paymént by the plaintiff or his land has been taken in satisfaction of the charge; but we have been unable to find any authority to support this contention and are unable to discover any principle to sustain it. All ■of the authorities seem to agree that the jurisdiction will be exercised where incumbrances a/re required to be qpaid^ as well as where
In Graham v. Dunigan (supra) it is true that payment of the charge had there actually been made by the plaintiff before the action was commenced, but neither in that case, nor in Linden v. Graham (supra), was the decision based upon that ground. No good or valid reason can be suggested for making the actual payment of the charge, prior to the commencement of the action, a -condition precedent to its maintenance. Indeed, it is not difficult to see that such a rule might work great injustice in some cases. For instance, where the owner of a very small portion of the land might be compelled to make a very large payment. The exercise ■of equitable jurisdiction does not depend upon actual payment. It is sufficient that there is a charge which attaches to all the land, and in which all the'parties are interested proportionately to their respective holdings; and, when this appears, then any of the parties inter ested may maintain an action for a fair, just and equitable apportionment among them.
The plaintiff, by alleging the facts set out in the complaint, has brought himself within this rule. He alleges that there is a charge upon several parcels of land which belong to different owners; that this charge is unapportioned among them; that it cannot be apportioned in an action at law, and that there is no statutory authority by which that result can be reached by the municipal authorities. The amount which each of the owners ought to pay being unde
We are also of the opinion that the receiver of the hotel is not a necessary party. It is true that the complaint alleged that the water was furnished to the occupants and proprietor of the hotel and that bills were rendered to them; but it is also true that it is alleged that the same was furnished with the knowledge and consent of the owners of the land, and, if there was no such allegation in the complaint, it does not necessarily follow that the lessee or the tenants would be liable for the water furnished. On the contrary, it has been decided that the occupants of real property in the city of Hew York are not personally liable to pay for water taken through meters upon the premises in the absence of an express covenant to that effect in the lease. (Moffat v. Henderson, 50 N. Y. Super. Ct. 211; Henderson v. Arbuckle, 54 id. 141.) Here there is no allegation in the complaint to the effect that the lessee or occupants agreed to pay or were liable for the water furnished. Ho allegations are made from which that fact can fairly be inferred, and, therefore, it must be presumed that no such liability exists. There is, therefore, no reason for joining the receiver as a party defendant.
Hor is the city a necessary party. Ho claim is made against the city by the plaintiff, and, if it were a party, it is clear that its rights could not' be impaired by any determination that might be made in
The action is brought, as already indicated, to settle and determine, among the respective owners, the proportionate amount of the charge which each should pay. The presence of the city as a party is not necessary for a complete determination of that question. A plaintiff cannot be compelled to bring in another party defendant unless, as provided in section 452 of the Code of Civil Procedure, “ a complete determination of the controversy cannot be had without the presence of other parties.” It has been held that “ complete determination of the controversy ” means where there are persons not parties whose rights must be ascertained and settled before the rights of the parties to the suit can be determined. (Chapman v. Forbes, 123 N. Y. 538.)
Here the plaintiff and the defendants are the owners of different lots of land, all of which are liable to pay to the city a certain specified charge. Action is brought to apportion that charge among the different owners, and they are the only persons who have any interest in the subject-matter of the litigation. The case is analogous to an action for the partition of the equity of redemption of land covered by a mortgage, in which case the mortgagee is not a necessary party.
It follows that the demurrer was properly overruled, and the judgment appealed from must be affirmed, with costs, with leave to the demurring defendant to withdraw the demurrer and interpose an answer within twenty days, upon payment of costs in this court and in the court below.
Barrett and Rumsey, JJ., concurred; Van Brunt, P. J., and Patterson, J., dissented.
Dissenting Opinion
I dissent. I cannot see how this action can be maintained. The prevailing opinion fails to give ns any hint as to what particular judgment can be entered in this action, or how any one portion of the land upon which this water tax is a lien is to be relieved from
It seems to me clear that the only remedy for the plaintiff is to pay the tax and recover from the other owners their proportionate shares, if he wants to relieve his property from the lien of the tax.
Patterson, J., concurred.
Judgment affirmed, with costs, with leave to demurring defendant to withdraw demurrer and answer in twenty days, on payment, of costs in this court and in the court below.
