Slocum v. Clark & Saxton — 2 Hill & Den. 475

Majority

p. 475

Slocum vs. Clark & Saxton.

Headnote

In order to confer upon the assignee of a landlord a right to distrain, the lease or land should be included in the assignment; a mere transfer of the rent remaining unpaid, does not carry with it the remedy by distress.

An equivocal averment in pleading should be construed most strongly against the pleader.

The statute, (2 R. S. 413, § 16, 2d ed.) authorizing the seizure, by way of distress for rent, of goods removed from the demised premises, within 30 days, &c. op. plies to the goods of the tenant only, and not to those of a stranger.

Error to the superior court of the city of New-York. The declaration was in replevin, by Clark & Saxton, for taking and detaining a large quantity of goods. The defendant interposed two avowries, the first of which set forth that one Patterson occupied a certain store and cellar in. the city of New-York, under a lease from John Jacob Astor, for one year, at $1700 rent, payable quarterly in advance—that the sum of $1075 was in arrear on the 1st of February, 1840—that after that time the landlord, for a valuable consideration, “ bargained, sold, assigned, transferred and set over unto the said defendant, all the rents remaining unpaid for the said store and cellar, with the appurtenances so demised to the said Patterson,” by reason whereof the defendant became entitled to the remedies by distress or otherwise, which Astor had or might have had if the assignment had not been made—that after the rent in arrear became due, the goods in question were removed from the demised premises and left at the place mentioned in the declaration—that the defendant thereupon made the usual affidavit of the said amount of rent being due to him, issued his

p. 476

distress warrant and seized the goods in question within thirty days after their removal. The second avowry was like the first, except that it averred a simple assignment of the rent to the defendant, and that the affidavit upon which the distress warrant was founded alleged that the rent was due to the defendant as assignee, &c. The plaintiffs demurred to the avowries, and the defendant joined in demurrer. The court below gave judgment for the plaintiffs, and the defendant sued out a writ of error.

R. H. Bourne, for the plaintiff in error.

J. H. Patten, for the defendants in error.

By the Court,

Both of the avowries are radically defective in two particulars. They set forth an assignment from the lessor to the plaintiff in error of the rent in arrear, but do not allege that the lease itself or the land was assigned. The transfer was therefore of a mere chose in action, which cannot carry with it the remedy by distress. It is true the first avowry avers that the landlord “ bargained, sold, assigned, transferred and set over unto the' said defendant all the rents remaining unpaid for the said store, &c. with the appurtenances but this does not necessarily or with the certainty required in pleading, import that the lease itself was assigned, and that fact being left equivocal, it must be taken most strongly against the pleader; for it is to be intended that he has stated the case as favorably for himself as possible. The averment was important, and the fact should have been stated directly and positively, and not left to mere inference and argument. At most, the assignment as stated only shows a beneficial interest in the rent, that might enable the defendant to collect it by distress in the name of the landlord—not an interest in the lease that can vest him personally with the power to enforce payment by this summary remedy.

The counsel for the plaintiff in error is mistaken in supposing that the statute, (1 R. S. 739, § 23, 2d ed.) can

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help him out of the difficulty. That-provides that “the grantees of any demised lands, tenements, rents or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, &c. shall have the same remedies by entry, action, distress, &c. for the non-performance of any agreement contained in the lease so assigned, or for the recovery of- any rent, &c. as their" grantor or lessor had- or might have had if such reversion had remained in such lessor or grantor.” This act was taken from the 32 Hen. 8 , ch. 34 and 37, and was designed to extend to grantees and assignees of the reversion who were strangers to the lease, and to their ’personal representatives, certain remedies upon the covenants therein that were at least doubtful at common law; but it has no bearing upon the question before us. The “rent” referred to in the statute, is doubtless rent charge, which is regarded for many purposes as real estate, partaking of the nature of the lands upon which they are charged, and for which no remedy by distress existed as of common right. (Brad, on Dist. 15, 32, 34. The People v. Haskins, 7 Wendell, 467.)

The avowries are also defective in not averring that the goods removed from the demised premises, and which were seized for the rent in arrear, were the property of the tenant. The language of the statute is, that “ any goods or chattels of the tenant which shall be carried off from any demised premises, &c. may be seized as a distress for any rent due, &c. Avithin thirty days,” &c. (2 R. S. 413, § 16, 2d ed.) For aught that appears, the goods seized in this case, though removed from the demised premises, may have belonged to the plaintiffs before the removal. The principle upon Avhich the avowries are founded, presupposes a right in laAV to take any goods, no matter to whom they may have belonged, provided they were removed from the premises of the tenant. The very question was otherwise determined in Thornton v. Adams and others, (5 Maulé Sp Selw. 38.) See also Frisbee v. Thayer, (25 Wendell,

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397.) The pleading must show that they were the goods of the tenant.

Judgment affirmed.^[1]

(a) (a) See Coles & Howe v. Maquand & Freeman, ante, p. 447.