3 Wend. 498 | N.Y. Sup. Ct. | 1830
By the Court,
I think the judge was right in deciding that the contract of April, 1826, was not a sale but a lease; that the interest of a lessee of personal proper
In this case the lessee had forfeited his interest in the mares in question, according to the terms of his contract, by removing them from the demised premises. The plaintiff, therefore, had the same right to the possession of the animals which he would have had, if Goodenoe had remained on the premises till the expiration of his lease.
It is said, however, that the plaintiff had waived his right to re-enter upon the possession of his property by acquiescence. I do not perceive any evidence of acquiescence; there is no proof of the plaintiff’s knowledge of Goodenoe’s removal with the property from the demised premises previous to the levy by the defendant. But if there was such evidence, according to the case of Marsh v. Lawrence, the plaintiff waived no right by leaving the property in the hands of the lessee. So long as he had a right to the possession which he might enforce at pleasure, (2 Wendell, 475,) the lessee had no interest in the mares which was the subject of sale.
A new trial should be granted.