Millard v. Robinson — 4 Hill & Den. 604

Majority

p. 604

Millard vs. Robinson.

Headnote

A notice of rent being due, given by a landlord to an officer pursuant to 1 R. S. 746, § 12, is in the nature of process, and should state facts enough to shove that the landlord is entitled to a preference over the execution creditor. Per Bronson, J.

Accordingly, where the goods of R. were taken in execution, and the notice showed, among other things, that the premises on which the seizure was made were in the occupation of R. and others, and that a specified amount was due to L., the landlord, for a balance of one year’s rent of said premises &c., but did not show R. to be the tenant of L.; held, that the notice was defective, and that the officer might therefore disregard it.

Landlord and sheriff. Jacob L. Lane leaded a brick store in Troy to Henry A. Benton for one year from May 1, 1842, at the annual rent of $500, payable quarterly. On the 1st of August, 1842, Benton sold his goods to the defendant Robinson, who entered and occupied the store. Other persons occupied parts of the building, but upon what terms did not appear. The sheriff having levied the execution in this cause upon the goods of the defendant in the store, Lane, on the 3d of March, 1843, gave notice to the sheriff, as follows : u Take notice that there is due and payable to me as landlord of that certain brick store, situate &c., and now in the occupation of Robert C. Robinson and others, the sum of $401,64 for a balance of one year’s rent of said premises, commencing &c.; and you will further take notice that the above sum is claimed by me as landlord to be due, and that you are required to pay and satisfy the same out of the goods and chattels seized or levied upon by you on said premises.” The sheriff sold the goods for more than enough to pay the rent, but not for enough to satisfy the execution; and Lane now moved that the sheriff pay to him the amount of the rent due. The motion was resisted on the ground, among others, that the notice was insufficient because the tenant was not named.

p. 605

M. T. Reynolds, for the landlord,

J. A. Millard Sr N. Hill, Jr. contra.

By the Court,

By the notice given to the sheriff, Lane claimed as landlord, and stated that the store was in the occupation of Robinson and others; but he did not state that Robinson was his tenant. So far as appears by the notice, Robinson may have come in as under-tenant, or even in hostility to Lane’s title; and in either of those cases there was no remedy by notice. The landlord can only gain a preference over an execution creditor by either distraining before the execution is levied, when, with few exceptions, the goods of any person found on the demised premises may be taken ; or by giving notice after a levy, where the defendant in the execution is his tenant. (Brown v. Fay, 6 Wend. 392 ; and see Frisbey v. Thayer, 25 id. 396 ; Coles v. Marquand, 2 Hill, 447 ;^[1] Slocum v. Clark, id. 475 .) The notice is in the nature of legal process, under which the goods are to be sold to pay the rent, as well as the judgment; (1 R. S. 746, § 12 to 16;) and the. landlord should state facts enough, assuming them to be true, to show that he is entitled to a preference over the execution creditor. We think the notice was insufficient, and that the landlord’s claim must fail upon that ground It is of course unnecessary to examine the other questions made on the argument.

Motion denied.

(a) (a) In connection with Coles v. Marquand, see the case of Acker, sheriff &c. v. Witherell, (ante, p. 112.)

Cases cited

Brown v. Fay 6 Wend. 392 N.Y. Sup. Ct. p. 605