79 N.Y.S. 936 | N.Y. App. Div. | 1903
Lead Opinion
This action has been twice tried. On appeal to this court from the judgment rendered on the first trial, Landon, J., wrote a dissenting opinion (35 App. Div. 134, 54 N. Y. Supp. 1079), holding that on the facts appearing in the record the plaintiff was entitled to judgment; that defendant McKinnon could not dispute the title of his landlord as declared in the lease by the purchase of an outstanding title to a strand or fraction of the premises, and thereby retain possession; that, having gone into possession under the lease with full knowledge of the situation, he must first surrender possession before he could assert a right to possession through his purchase. The case went to the court of appeals, and the opinion of Mr. Justice Landon was there adopted (165 N. Y. 612, 59 N. E. 1132), and became the law of this case so far as the material facts on this second trial are the same as on the first trial. There seems to have been no effort made by defendant to change the facts, but on the second
The learned trial court found that the rental promised by the lease was $100 per year, and also found that the value of the use and occupation of the premises was $100 per year, but as a conclusion of law found that the plaintiff was entitled to recover as damages for the wrongful withholding the sum of $1,140. As no other damages were proven other than the rental value, we must conclude that damages were computed on a longer term than six years, and the, limitation provided in section 1531 of the Code was ignored. We think this was error. The damages or rental value of the premises for six years next preceding the trial of the action is the proper term for the computation of damages. Six hundred dollars, therefore, with interest on the annual rental value, amounting to $90, and in all to $690, is the amount of damages recoverable, and the judgment- should be modified accordingly. While the Code provision is. not altogether explicit as to when the six-year term is to begin or end, the question seems to have been settled by several court decisions. Budd v. Walker, 9 Barb. 493; Grout v. Cooper, 9 Hun, 326; Gas-Light Co. v. Rome, W. & O. R. Co., 51 Hun, 119, 5 N. Y. Supp. 459; Chace v. Lamphere, 67 Hun, 599, 22 N. Y. Supp. 404.
The judgment, as modified, should be affirmed, with costs.
Concurrence Opinion
I concur with Justice KELLOGG except as to the • amount of damages for withholding the property. In an action to recover the possession of real property the plaintiff may recover damages for withholding the property, including the rents and profits, or the value of the use and occupation of the property. Code Civ. Proc. §§ 1496, 1497. These sections include the damages arising from the defendant’s continuing to withhold the real property after the bringing of the action. Clason v. Baldwin, 129 N. Y. 183, 29 N. E. 226; Danziger v. Boyd, 120 N. Y. 628, 24 N. E. 482. All the recoverable damages are now incidental to the establishment of the plaintiff’s title to the property. Clason v. Baldwin, supra. The “term not exceeding six years,” mentioned in section 1531 of the Code of Civil Procedure, in my opinion refers to the six years immediately prior to the commencement of the action. Under the old practice it was six years from the filing of the suggestion for mesne profits. The opinion of Justice KELLOGG herein limits the recovery of damages to the six years next preceding the trial of the action. His allowance of interest thereon from the commencement of the action is inconsistent with his determination of the time for which damages are recoverable. In Chace v. Lamphere, 67 Hun, 599, 22 N. Y. Supp. 404, plaintiff was permitted to recover damages for six years immediately prior to the commencement of the action, together with interest thereon. This determination wholly ignores the right to recover damages during the pendency of the action as provided in said sections 1496, 14.97. Prior to the adoption of the Code of Civil Procedure, the Revised Statutes (2 Rev. St. 311, § 50) provided that the plaintiff in an action of ejectment should not be entitled to recover the rents and profits of the land recovered in the action for a longer term than six years. The Revised Statutes (sections 44-50, inclusive) made provision for determining the damages for mesne profits, and expressly provided that, in place of the action of trespass following the judgment for possession according to the practice previously existing, the plaintiff seeking to recover such damages should, “within one 3^ear after the docketing of the judgment, make and file a suggestion of such claim.” In Jackson v. Wood, 24 Wend. 443, a recovery for six years’ mesne profits prior to the filing of .the suggestion and for two years and seven months after the filing of the suggestion and before the report of the referees was upheld. In this case, referring to the limitation of time, the court say: “And, if we may refer to the reviser’s notes, the section was made thus
“It Is not denied that in the old action of trespass for mesne profits the recovery was limited to the six years next preceding the commencement of the action to recover them. * * * The object of all statutes of limitation is to prevent the setting up of stale and dormant claims. They are called ‘statutes of repose.’ They fix a period within which in point of time a claim or right must exist in order to be the subject of judicial cognizance, and that period, I think, must terminate at the time when the party asserting the claim commences legal proceedings with a view to enforce it.”
It was held in that case that the six-years period for which recovery could be had was six years next before the filing of the suggestion for mesne profits. Damages for withholding the possession of real property being now recoverable in the action, I see no reason why the period of limitation should not date from the commencement of the action. Any other rule would result as in this case, where the plaintiff has been kept out of possession of his property for 13 years, in great wrong to the owner. I am in favor of the affirmance of the judgment without modification.
All concur, except KELLOGG, J., who votes for modification in accordance with his opinion.