125 N.Y.S. 562 | N.Y. App. Div. | 1910
I am in favor of a reversal of the order appealed from and the denial of the motion for a mandamus, but am not prepared to concur with the reasons for that disposition of the appeal given by my brother Dowling. It is conceded that there is no provision of law authorizing the payment into court at the time that the relator made his payment. Therefore, the clerk was under no obligation to receive the money; and, in receiving it, acted outside of any duty imposed upon him by law. Hence, he did not receive it, nor does he hold it in his official capacity as clerk, but merely as a stakeholder selected by the relator, who might equally well have selected any private individual as stakeholder in order to keep his tender good. “ It is well settled that it [mandamus] can be resorted to only for the purpose of enforcing the performance of a specific duty already existing and clearly imposed upon the officer either by express law or as one of the necessary functions or attributes of the office which he holds.” (Mech. Pub. Off. § 987.; Matter of Molineux, 41 Misc. Kep. 154.) The respondent Chamberlain, as I consider, holds the money deposited, not as clerk, but as a non-official person, and whoever may be entitled to receive it from him must enforce payment by action and not by mandamus, as the obligation to pay it over is a personal and not an official obligation. If such an action is brought by either of the present claimants, the respondent Chamberlain will doubtless be permitted, if he so applies, to hale in the other claimant and leave the controversy to be settled between the two persons who claim the fund. In my view of the case, the question whether or not the payment to the clerk constituted an absolute payment to the landlord is not now before üs and need not now be determined. I do not question the general rule that in an action
If the tenant had chosen to make a deposit with a non-official person, no one, I suppose, would contend that that stakeholder could be summarily compelled to pay the money over to the landlord merely because the tenant had admitted that he would pay the landlord that sum, and as I have already said, the deposit was in legal effect a deposit with a non-official person. Whether in a proper action the tender and deposit could be used as an admission is another question. It is sufficient for tire present to reverse the order appealed from on the ground that mandamus will not lie, leaving the other questions to be considered when they arise.
Clarke and Miller, JJ., concurred.
Summary proceedings were pending in the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, brought by Browning, King & Co., a domestic corporation, as landlord and against Frank W. Terwilliger as tenant, based upon allegations in the petition that on February 1,1910, there was due to the landlord from the tenant, as rent for the premises therein described, the sum of $4,583.33. While said proceedings were pending the tenant deposited with the clerk of the court the snm of $850, being the amount of the February rent, which became due and payable on the 1st of February, 1910, and which by his answer in said proceedings he admitted to be due on February first for back rent, and
There is no provision of law under which the deposit in question was made. Sections 731 to 734, inclusive, of the Code of Civil Procedure refer to an action where the complaint demands judgment for a sum of money only and do not apply to a summary proceeding.
. The only case where a deposit of money is allowed in a summary-proceeding is under section 2254 of the Code of Civil Procedure, providing that where a final order has established that a lessee or tenant holds over after a default in the payment of rent or of taxes or assessments, he may effect a stay by payment of the rent due or of such taxes or assessments and interest and- penalty, if any‘due thereon, with the costs of the special proceedings. In this case, however, the tenant admitted that he owed the landlord $850, and when the landlord refused to accept the amount in open court during the trial, the tenant deposited with the clerk, with the approval of the court, the amount conceded by him due. No one objected to the tender or deposit, and the tenant relied upon this deposit as a means of defeating the landlord’s claim to possession of the premises if no more than that sum was due the landlord ; and unless he did so deposit it, in the absence of proof of a prior legal tender, the landlord would have at once been entitled to judgment upon defendant’s concession that such sum of $850 was due for rent and had not been paid.
It appears plain that the parties to the proceedings, as well as the court and the clerk, deemed this deposit a proper and effectual
Regarding this deposit in the light in which it was regarded by all interested at the time it was made, and with reference to which they sought to have their right determined, the payment of this money into court must be regarded as having operated in the same way in which all other payments into court' by way of tender have been determined to operate, and that is, as an admission that the money so deposited into court belongs to the plaintiff in any event, and as an absolute transfer of the money to him. (Mann v. Sprout, 185 N. Y. 111; Matter of Flewwellin v. Lent, 91 App. Div. 430.)
It follows, therefore, that the order appealed from must be reversed, with ten dollars costs and disbursements to the appellant, and the motion for a peremptory writ of mandamus denied, with ten dollars costs.
Ingraham, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and-motion denied, with ten dollars costs.