2 Barb. 316 | N.Y. Sup. Ct. | 1848
The objection, raised for the first time on the argument, that the declaration was for the whole of lot No. 27, and the lease covered only the north three-fourths of the lot, and that the judge directed a verdict for the plaintiff for the premises mentioned in the declaration, comes too late. It rvas not pretended that the defendant was in possession of any land not covered by the lease; nor, in short, did the plaintiff claim any other, on the trial. The verdict cannot injure the defendant, and it can be conformed to the proof on a proper application. This is not the way to correct it.
It is now objected that the plaintiff showed no title to the land. This objection was not raised at the trial, unless it was embraced in the general motion for a nonsuit. The attention of the court and counsel was not drawn to it. As between the plaintiff and Merchant, the immediate lessee, the acceptance of the lease was an admission of the lessor’s title. It is fair to infer from the testimony of Boyd, that Merchant and those succeeding him, had paid rent to Williams up to within six years of that time; thus leaving a period of above twenty years during which rent had been paid. The jury had a right to infer that the defendant was in possession as assignee of Merchant. He was called on for rent by the plaintiff’s agent, and did not pretend to any title hostile to Williams, nor deny the fact that rent was in arrear from him. He admitted himself in possession, denied that there was any property on the premises to countervail the arrears of rent, and requested the present suit to be brought against him for the recovery of the premises. Moreover, he suffered the cause to be tried as an inquest. There is nothing in these objections.
The only question gravely raised on the trial, was whether since the act entitled “ an act to abolish distress for rent, and
But admitting that the law of 1846 has worked a repeal, by implication, of the revised statutes, as to re-entry for non-payment of rent, I am still of opinion that the cause was rightly disposed of at the circuit. The request of the defendant to the plaintiff’s agent to bring this suit, ought to be treated, if necessary to uphold the proceedings, as dispensing with notice in writing. A party may waive the performance of a statutory requirement made for his benefit. In addition to this, the objection of the defendant’s counsel did not point to the want of notice. It was general. Had the objection been specific, it might, for ought we know, have been obviated.
New trial denied.