Stone v. Matthews — 7 Hill & Den. 428

Majority

p. 428

Stone vs. Matthews.

Headnote

The property of boarders at taverns or boarding houses is not liable to distress for rent, although such property is not in their possession, but in the possession and actual use of the tenant, by their permission, and without the consent of the landlord. Semble.

On error from the supreme court. The case is reported in Hill, 565 et seq. In addition to the plea to the avowry there stated, the plaintiff interposed a further plea of no rent in arrear, on which a trial was had before the cause was removed to the supreme court, and the jury found a verdict in the plaintiff’s favor. The attention of the supreme court was not called to this part of the case, when it was before them, and they, instead of awarding a venire de novo to re-try the issue of fact, gave final judgment for the defendant. The plaintiff thereupon brought error to this court, where the case was argued by

B. W. Bonney, for the plaintiff in error, and

J T. Brady, for the defendant in error.

All the members of the court, except Senator Scovil, agreed that the judgment of the- supreme court should be reversed, for the reason that it determined the case absolutely in favor of the defendant, instead of awarding a venire de novo. But they differed upon the question passed upon by that court, viz. whether property in a boarding house, belonging to a boarder, is exempt from distress for rent, while in the possession and use of the tenant, by permission of the boarder, and without the consent of the landlord. The Chancellor and Senators Barlow, Jones, Lott and Porter delivered opinions concurring with the supreme court; and Senators Bockee, Hard, Lawrence, Scott and Wright, contra.

Judgment reversed.

p. 429

Immediately after this decision was made, Senator Lester offered the following resolution:

Resolved, That property of hoarders at taverns and boarding houses is not liable to distress for rent, although such property is not in their possession, but in the possession and actual use of the tenant, by their permission, and without the consent of the landlord.

On the question being put, “ Shall this resolution be adopted ?” the members of the court voted as follows;

Affirmative: Senators Backus, Bartlit, Bockee, Burn-ham, Chamberlain, Hard, Lawrence, Lester, Mitchell, Platt, Scott, Smith, Yarney, Works and Wright—15.

Negative: The Chancellor and Senators Barlow, Denniston, Jones, Lott, Porter and Scovil—7.