20 Wend. 139 | N.Y. Sup. Ct. | 1838
We have already determined, in construing the 81st section of the act relating to the city of New-York, that the owner or lessee of the building destroyed was entitled to an assessment of damages for the loss sustained in respect to merchandize, and the other personal effects belonging to him and contained therein. 17 Wendell, 285. It was not then important to consider whether the owner of the goods, who had no estate or interest in the building, came within the purview of the statute; that question is now presented; and also whether, if he possess such interest, he can claim damages for goods held by him for sale on commission.
In respect to the first question, the statute, I am of opinion, is too explicit to admit of doubt. It provides that any person interested in the building may apply for the precept, and that the jury may assess the damages which the “ owners of such building, and all persons having an estate or interest therein,” have sustained. The term interest, (the only word upon which a doubt can possibly be raised,) in the connection in which it is found, clearly imports some share in the building itself, and was intended, probably, if not to be regarded as synonymous with estate, to include any degree of interest or claim therein which might not, in technical language, fall within any of the subdivisions of estates. It may well however, be regarded as synonymous, as the term estate, when used in reference to land, signifies simply an interest therein; 2 Black. Comm. 103 ; and both terms are in common use in the transfer of titles, as may be seen in the various forms of conveyance. The word interest is also frequently used by the legislature in respect to real estate. 1 R. L. 503, § 1. Laws of 1816, p. 63, and others which might be referred to.
The second question is more embarrassing. So far as charges or advances upon the goods held on commission exist, the lessee must be considered, to this extent, as owner having a lien upon
Here the damages to be assessed and recovered are expressly limited to persons possessing an estate or interest in the building destroyedj not given generally to the party aggrieved. It is the damages which this particular description of persons, and none else, have sustained, which are provided for by the statute. We must remember too, that the act of pulling down the building was
If the act (as in the acts against the hundred) had provided indemnity generally to all persons sustaining damages, then the right to compensation being secured to all, the only question that could arise would be in respect to the form of the remedy; and in analogy to the course of proceedings at common law, there could have been no great difficulty in permitting the party in possession of the goods, such as consignee, bailee, &c. to recover for the owner. Possession alone might then have sufficed for the purpose of the remedy under the law, leaving the plaintiff in the action to settle with the party in interest. But how can we *say that the owner may recover here through his agent when the corporation are not made liable for the loss I The question is not one of remedy, but of right; the bailee is met by the objection that the owner is not provided for in the particular case; it not coming within the scope and meaning of the act; damages are given to the party showing an interest in the building ; those which he has sustained, not the bailor or some third person. To say therefore that he may recover for goods belonging to the consignor, bailor or the like, would be violating the principle of the statute through the form of the remedy. Where the case of the •claimant comes within the provision of the law, and he is entitled to damages, any remedy for the loss that he may have against
Interest was properly allowed j it entered into an estimate of the loss which the party had sustained, and was a part of the damages.