6 Cow. 103 | N.Y. Sup. Ct. | 1826
Curia, per
The evidence as to the basis of Sturges’ appraisal should have been received. The appraisal was irregular; and not conclusive on the defendant. Both parties should have had notice; so that an opportunity might be afforded to submit their remarks to the appraiser, and adduce proof, if deemed necessary. (4 Dall. 232.) The plainest dictates of natural justice require that no man shall be condemned unheard. The right to notice was implied in the agreement to submit. As the appraisement was, in my view, a nullity, the value of the machine was a proper subject of inquiry at the trial, in order to decide whether any rent was due.
If, however, the appraisement be allowed, there remained a small balance due. The question in this case seems to be, not whether the defendant took an unreasonable distress; but simply whether any rent was due. The count on which the plaintiff recovered is clearly founded on the 9th section of the “ act concerning distresses,” &c. (1 R. L. 436;) which provides that whenever a distress and sale shall be made by color of the act, for rent pretended to be in arrear, when in truth “ no rent is in ar-rear or due,” the party shall render double the value of the goods. The fact being conceded that some rent was due, this action cannot be sustained, unless the charge of the judge be correct, that there must also be a right of distress.
If it be admitted that the defendant had no right to dis-train, the answer is, the plaintiff does not claim to recover on that ground. The statute remedy is relied on. If the case is brought within the statute, the damages are reg~
But I am of opinion that the defendant had a right to distrain, although the original lease was surrendered and destroyed. The relation of landlord and tenant existed; for on the 3d of February, 1823, the date of the due bill at the time it was given, and as part of the arrangement then made, there was another writing between the parties, by which, among other things, the plaintiff was permitted to remain in the house until the 1st of May, then ensuing; and have the privilege he had had in the same, and in the barn ; and to finish his cloth in the shop. The effect of the arrangement was, that the plaintiff gave up a part of the premises, and retained the residue to the end of the year. The due bill is stated to be a settlement up tb the lsi of May ; so that it included all the rent claimed for the year; as well the rent on the premises retained by the plaintiff to May 1st, as the rent which had accrued when this agreement was made.
The operation of the settlement was, to make a part of the rent payable in advance. This is no objection to the right of distraining. (Gilb. on Rents, 25. 2 T. R. 600, 4 Cowen, 576.)
If it be urged that the due bill also included the rent, accrued on the original lease, prior to its surrender, and as to that there could not be a distress ; it only proves that the distress may have been unreasonable, the defendant having distrained for the whole; but it does not destroy the right altogether.
This case is clearly distinguishable from Bain v. Clark, (10 John. 432.) There the tenant surrendered the lease, and quit the premises. The relation of landlord and tenant having ceased, the personal responsibility of the tenant, on his agreement to pay, alone remained-
The verdict must be set aside; and a new trial granted, with costs to abide the event.
New trial granted.
