61 N.Y. 382 | NY | 1875
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *387 The defendants rely upon a number of propositions which they deem fatal to the plaintiff's case.
I. They claim that the plaintiff cannot recover, because the sheriff could not deliver possession.
This is a misconception of a well known rule of law that where the property is not, in its own nature, capable of physical possession, an action of ejectment will not lie. A common example is an easement or other incorporeal hereditament. (Child v.Chappell,
II. The defendants further claim that all title to the property in controversy had passed from the plaintiff when the action was commenced, and, accordingly, that he has no cause of action against them. Their argument upon this point is, that the plaintiff conveyed to Burt, or to Keyser, the lot on the corner of White and Church streets, of such dimensions that it included 37 White street (as set forth in the statement of facts), with the "appurtenances." The description in that case embraced a lot of land with defined boundaries. It was referred to as being on the corner of Church and White streets and composed of parts of lots of designated numbers and as containing, respectively, on the front and rear twenty-five *390
feet and on the sides seventy-five feet. Such language cannot be held to include adjoining property not described, unless it can be embraced within the word "appurtenances." The meaning of this term is now well ascertained by adjudged cases. A thing "appurtenant" is defined to be a thing used with and related to or dependent upon another thing more worthy, and agreeing, in its nature and quality, with the thing whereunto it is appendant or "appurtenant." It results from this definition that land can never be appurtenant to other land, or pass with it as belonging to it. (Jackson v. Hathaway, 15 J.R., 447, 454; Matter ofN Y Cent. R.R. Co., 49 Barb., 501, 505; Harris v. Elliott,
10 Pet., 54; Leonard v. White,
In the case at bar no title passed to the locus in quo under the conveyances to Burt and Keyser. Nor did there any easement attach to it in favor of the owners of 37 White street, as the acts of those persons plainly showed that it was wholly unnecessary to the enjoyment of the property acquired by their conveyances. The plaintiff, accordingly, was owner of an estate in the lot in controversy, and was entitled to an action of ejectment to recover it unless the defendants have additional grounds for defeating a recovery.
III. The defendants, however, claim that, conceding that the plaintiff has an estate in the land, he is estopped from claiming it by a fraudulent concealment of his title.
An apparently good answer to this claim is made by the plaintiff, to the effect that the referee has made no finding upon this subject. He should have been called upon by the defendant, specifically, to find such facts and conclusions as shall, upon the evidence, be regarded as material to the issue. Should this application have been denied, the materiality of *391
the findings asked for can be determined on appeal to the General Term, or to this court. (Meacham v. Burke,
If, however, the subject be open to consideration here, it would be impossible to support the contention of the defendants. There was no evidence to sustain an estoppel. There was no relation of landlord and tenant between the defendants and the plaintiff, as the defendants' counsel maintains. The owner of the lease of the lot in controversy made over to the plaintiff's assignor his entire interest in the lease, so far as the locusin quo was concerned. It was not a sub-lease, but an assignment of all the lessee's interest in a part of the premises. If a lessee has two houses embraced in one lease at an entire rent, and sells all his interest in one of the houses, this is an assignment pro tanto, and not a sub-letting. It is immaterial what form of instrument is used, whether it purports to be an assignment or a new lease. The essential distinction between an assignment and a sub-lease is simply this: If a lessee, by any instrument whatever, whether reserving conditions or not, parts with his entire interest, he has made a complete assignment; if he has transferred his entire interest in a part of the premises, he has made an assignment pro tanto. If he retains a reversion in himself, he has made a sub-lease. (Bedford v. Terhune,
The result is, that in the case at bar the plaintiff cannot be regarded as an under-tenant of the defendants Rosenthal *393 and Levy, but each were assignees of a portion of the term, and owing no special duties, one to the other, of a fiduciary nature.
From this point of view there is no sufficient evidence to constitute an estoppel. The parties were at arms length. The defendants searched the title and knew the extent of the plaintiff's interest, as his lease was on record. Mr. Woodhull was, plainly, reticent, and not open or candid in his intercourse with the defendant; I think, however, that there was no conduct on his part to mislead them; and the evidence plainly shows that they were not misled; they chose to go on and build, and run their risk as to his title.
IV. The leading question in the cause is, whether the referee, at the trial, committed an error in allowing certain evidence, by experts and others, as to the value of this property. During the course of the litigation the plaintiff's lease expired; so the whole controversy between the parties turned upon the amount of the damages which the plaintiff sustained by the defendants' wrong. The case thus falls within second Revised Statutes, 308, section 31: "If the right or title of a plaintiff in ejectment expire after the commencement of a suit, but before trial, the verdict shall be returned according to the fact, and judgment shall be entered that he recover his damages by reason of the withholding of the premises, by the defendant, to be assessed."
This is one of those general provisions which apply to actions under the Code. (Lang v. Wilbraham, 2 Duer, 171.) It was also a recognized rule of the common law, and was the only case in which actual, as distinguished from nominal, damages could be recovered in an action of ejectment; it being necessary, in other cases, to make a separate claim for mesne profits. (Sedgwick on Damages, 120; Jackson v. Davenport, 18 J.R., 295; Wilkes v.Lyon, 2 Cowen, 333.)
In the present case the claim is, in substance, one for the profits of the lease. In other words, the plaintiff is entitled to recover the value of the lease for the residue of the term. (Sedgwick on Damages, 123, note 1.) This is not, necessarily *394
the rent, but the true value. In Trull v. Granger
(
The authorities show that the rule as to damages, in an action of ejectment, was very uncertain at common law. The cases are collected by Mr. Sedgwick in his work on damages (pages 124, 125). An approved writer, Mr. Adams, sums up the result of them by stating that "the jury are not confined to their verdict, to the mere rent of the premises, but may give such extra damages as they think the particular circumstances of the case demand." (Adams on Ejectment, 391; Goodtitle v. Tombs, 3 Wils., 118; remarks by Lord MANSFIELD and Mr. Justice BULLER, in Goodtitle
v. North, 2 Douglas, 584; Dewey v. Osborn, 4 Cowen, 329.) Mr. Sedgwick disapproves of these dicta, but is unable to announce any rule which will cover all the cases. In this uncertainty of the law, the Revised Statutes have wisely provided the courts with a general rule which they are required to follow. The action for mesne profits is now, in substance, an action for use and occupation, and the complaint is to be drawn on that theory; and the court is to render judgment, as in actions of "assumpsit, for use and occupation." (See Holmes v. Davis,
Under these rules, the regular recovery would be the rental value of these premises. It will be remembered that the *395 plaintiff's interest and that of the defendants form distinct parts of one entire city lot, which has, as a whole, a settled rental value. The true theory of the case is to determine what the whole annual value of the lot would be if a stranger had taken possession of the whole of it, and the owner had then sought to recover the profits in an action for use and occupation. Having thus obtained the entire value, it should be apportioned among the respective owners, according to their interests. If the defendants' interest is worth twice that of the plaintiffs, they should allow the plaintiff one-third of the rental value. No other theory would be "reasonable," within the meaning of the statute. Suppose, for example, there were a city lot of twenty-five feet in width, and 100 in depth. Of this, A. owns the first four feet on the street, and B. the remaining ninety-six feet. If C. should build upon the lot, it would be easy to ascertain how much of the rental value should be apportioned between A. and B. Would the question be at all different if A. should himself, without the consent of B., occupy the entire lot? Plainly not. There could be no reason given for one rule in the one case and another in the other. This will be adopted as the rule applicable to the case at bar.
It is now time to consider whether, on this principle, the referee erred in admitting the evidence to which the defendants object. The witness Lloyd was asked the question: "Do you know the value of the use of the premises 189 Church street during 1866, 1867, 1868?" To this he was allowed to answer that he did, and that it was $700 per year. In answer to a question by the referee, he stated that the rear part of the lot in fee was worth $10,000, and that he calculated $700 per annum on that as a fair rental value. This was one mode of getting at the value of the property; and as a circumstance to be taken into account was not objectionable. It was not, however, the strictly accurate mode of reaching the true result.
There were other questions admitted, on what I deem to have been erroneous theories, apparently entertained by *396 counsel on both sides; one of them insisting, that as the rear part of the lot had no approach from the street the lease was really of no value, and the other claiming that the true measure of value was the advantage derived by the defendants by means of their encroachment. There was enough evidence properly admitted in the case to show the real value of the lot and its separate portions. Rosenthal, one of the defendants, swore that the front part of the lot for the time that he enjoyed it was cheap at $10,000. His lease then had about three and a half years to run. This estimate would make the annual value of that portion of the premises $2,850 per year. On his cross-examination he testified that the whole value of the lot, in 1866, was $25,000, and that the front was worth twice as much as the rear; and that, figuring the value of this estimate, the front was worth $2,665. He also said, that if the lot was 100 feet deep the rear would be only one-quarter the value of the front. He took fifty feet for the front, and twenty-five feet in the rear would be worth one-half, and twenty-five feet still further back one-quarter of such front. This evidence is not disputed.
The plaintiff's lot contained about 333 square feet. The whole number of square feet in the lot was 1,825 (twenty-five by seventy-five). Estimating the front as worth twice as much as the rear, the plaintiff would be entitled to about one-ninth of the rental value, which would exceed $250 per year, the sum that the referee allowed. The irregular testimony could not possibly have harmed the defendants, as on their own showing they ought to pay the amount awarded. It is unnecessary, therefore, to consider, in detail, the objections to the evidence.
There is no foundation for the claim of the defendants that the value of the improvements made on the plaintiff's portion of the lot should be set off against his cause of action for damages. It is only a bona fide occupant of land who is allowed to mitigate the damages by offsetting the value of his improvements to the extent of the rents and profits claimed. This was the rule of the civil law which has gone furthest in *397
allowing this class of defences. The mitigation of damages in this manner is made on equitable grounds, and it would be plainly inequitable to allow them to one who acted with knowledge of the plaintiff's rights. (Green v. Biddle, 8 Wheaton, 1; Dothage
v. Stuart,
V. The final claim of the defendants is, that the referee erred in ordering judgment against Pecare and his sub-lessees. They, however, put in answers setting up their title, and litigated the case. Jacobs, Woodhull and Whiteside averred that they were tenants of the building erected on the premises, for the term of two years and seven months, under Pecare. Pecare set up that he was a tenant under Rosenthal and Levy for the term of two years and nine months. The referee finds that they were in possession of the premises and wrongfully withheld them from the plaintiff for the whole of his unexpired time. Although there may have been some contradictory testimony in the case, yet there was some evidence on which the finding of the referee can be based, and his decision cannot be reviewed in this court.
The judgment of the court below should be affirmed.
All concur.
Judgment affirmed.