3 Denio 274 | N.Y. Sup. Ct. | 1846
after consultation with the other judges, denied the motion. He said they all agreed that the repealing act was valid in reference to this lease, as well as in regard to leases made after its passage. The controversy here, he added, was not between the landlord and his tenant, but between two creditors of the tenant. He owed each of them, and the struggle was for a preference in obtaining payment. Under the statute, (1 R. S. 746, § 12,) the landlord had the vantage ground, but the legislature of last winter thought that unreasonable, and repealed the enactment by which it was conferred. (Laws 1846, p. 369.) But this repealing statute did not impair the obligation of the tenant to pay rent, nor in the slightest degree interfere with it. He might still be sued; and his entire property was as much subject to execution and sale for the payment of this rent, since the repealing act was passed, as before.
The agreement of the tenant gave no such preference to the landlord, nor could it be secured in that way. Here was the tenant’s property, liable to be taken in execution by any of his creditors. These plaintiffs made such a levy, and so far had made themselves secure. But the revised statutes had given a preference to a landlord, over such execution creditors, and this was an undoubted right until the last session of the legislature. Other views then prevailed, and the repealing statute declared that this preference should exist no longer. We hold that the legislature was fully competent to pass this statute: it did not touch the obligation of the tenant’s contract. He was liable on it as before: the legislature only said that this extraordinary remedy, giving a preference to a landlord over an execution creditor, was unreasonable, and should not be continued.
In the nature of things, there is a distinction between the change of a contract and a change of the remedy to enforce the performance of the contract. Under the constitution of the United
Motion denied.
