Jacobus v. Colgate

This case comes here on a demurrer to a complaint. The plaintiff’s assignors were the owners of a milling plant in Kansas. .More than thirty-three years ago, in August, 1882, the defendant, according to the averments of the complaint, “ wilfully and wantonly ” set fire to the plant and destroyed the mill and its contents. In December, 1913, the owners of the plant assigned their cause of action to the plaintiff, who is a resident of this state. In January, 1914, the summons was served.

The first question to be determined is whether the courts of New York have jurisdiction of the action. For the moment we lay aside the allegations of injury to the contents of the mill and view the action as one for injuries to the building only. There is no doubt that until 1913 our courts had no jurisdiction of actions for injuries to real property lying without the state (Brisbane v. Penn. R. R. Co., 205 N. Y. 431 ). Nothing inconsistent with

The general rule is that statutes are to be construed as prospective only (27 Halsbury’s Laws of England, p. 159). It takes a clear expression of the legislative purpose to justify a retroactive application (Isola v. Weber, 147 N. Y. 329 ; O’Reilly v. Utah, N. & C. Stage Co., 87 Hun, 406 , 412; Matter of Protestant Episcopal Pub. School, 58 Barb. 161 ; United States v. Heth, 3 Cranch, 399 , 413). Changes of procedure, i. e., of the form of remedies, are said to constitute an exception (Lazarus v. Met. E. R. Co., 145 N. Y. 581 ; Laird v. Carton, 196 N. Y. 169 ), but that exception does not reach a case where before the statute there was no remedy whatever (Kelley v. B. & M. Railroad, 135 Mass. 448 ; Reinhardt v. Fritzsche, 69 Hun, 565 ; Shipman v. Treadwell, 208 N. Y. 404 , 415; Germania Savings Bank v. Village of Suspension Bridge, 159 N. Y. 362 ). To supply a remedy where previously there was none of any kind, is to create a right of action. We need not dwell upon the question whether before this amendment of the Code, a trespass on foreign lands was recognized by our law for any purpose as constituting a wrong (Dicey Conflict of Laws [2d ed.], pp. 31, 32). If we recognized it as a wrong, we gave .no redress for it. If the injured owner had suffered an

This distinction was recognized by the House of Lords in a leading case in which the jurisdiction of the English courts in actions for trespass on foreign lands was considered with the amplest learning. In British South Africa Co. v. Companhia de Mocambique (L. R. [1893] A. 0. 602) the question to be determined was the effect of rules of court, adopted under the Judicature Acts of 1873, which abolished the technical rule of local venue. The holding was that the abrogation of that rule did not enlarge the jurisdiction in respect of injuries to foreign lands. The rule of local venue, it was held, was a rule of procedure. It determined the county or section of the realm in which the suitor must proceed. It assumed that jurisdiction was present, but defined the manner of its exercise. On the other hand, the rule that where the matter was local and arose outside the realm, there was no remedy in the courts of England, was held to be in the fullest sense a rule of jurisdiction. The House of Lords held that the Judicature Acts were not intended to confer upon the owners of foreign lands “ a right of action in this country which they would not otherwise have possessed.” Lord Herschell pointed, out in his opinion that “-a person whose lands situate in this country were trespassed upon always had a right of action in respect of the trespass; ” and then he added in words precisely applicable here: “But in respect of a

This conception of a right of action is criticised in the dissenting opinion. We are told that “ when one without permission enters upon the property of another ” in a foreign state, “and wrongfully sets fire to the buildings thereon and destroys them, it is evident that a wrong has been done, and that the right of the owner has been violated, and the owner has a right to redress.” But that is precisely what the owner did not have until the amendment of the statute. He had, if you please, a moral right to redress, but he had no legal right to redress except in the state where the wrong was done. To give him a right to redress in this state was the very purpose of the amendment. Even now the wrong has not been transformed into an offense against our laws. The foreign has not been transformed into a domestic tort (Slater v. Mex. National R. R. Co., 194 U. S. 120 , 126). The statute does not “vindicate a pre-existing right ” under our law; it does not redress a pre-existing wrong. The primary wrong is still the violation of the law of the state where the act was done (Phillips v. Eyre, L. R. [4 Q. B.] 225, 239; Slater v. Mex. National R. R. Co., supra; Wooden v. Western N. Y. & P. R. R. Co., 126 N. Y. 10 , 14; Wharton Confl. Laws, § 478b). Out of the foreign tort there once grew a right of action territorial and local, which our courts would not enforce. Out of. the same tort there now grows a transitory right of action which our courts will enforce. The right of action has not merely been changed; so far as our law is concerned, it has been created. But the wrong, the violation of the primary right, which it redresses, is defined by the foreign law.

We hold, therefore, that section 982-a of the Code is not a retroactive statute. It is hardly necessary to dwell upon the distinction between this case and cases where a jurisdiction already residing in one court is transferred or added to another (People v. Green, 201 N. Y. 112 ). In such circumstances there is merely a regulation of the procedure for the vindication of a right already legally enforceable. The decisive consideration here is that until the statute was adopted, no remedy of any kind was available in any court. It is not a sufficient answer to say that the old rule was unjust and technical. We may concede that it was. That is doubtless why the legislature lias changed it for the future. The canons of statutory construction remain the same whether the change was wise or foolish. But if considerations of expediency are to control us, we shall see that the legislature had many reasons for refusing to establish a right of action in respect of past wrongs. It may well be that a retrospective statute would work greater hardships than any that it would avoid. The plaintiff complains of a trespass committed thirty-three years ago. The rule is that

If the action fails to the extent that it is brought to recover damages for injuries to real estate, the question remains whether to the extent that it is brought to recover damages for injuries to personal property it may not be maintained. The complaint alleges that a stock of flour, wheat, flour sacks and bran sacks, and also office furniture, stationery, books of account, and other personal property were contained “in and about said building or on the premises of said milling plant. ” All this personal property is stated to have been destroyed. On the one side, the plaintiff contends that there are two causes of action, —a cause of action for the injury to the realty, and another for injury to the personal property upon it. On the other side, the defendant contends that there is but a single cause of action for injury to the realty, and that the injury to the personal property is merely aggravation of the damages. We think our decision in Reilly v. Sicilian Asphalt P. Co. ( 170 N. Y. 40 ) requires us to hold that two causes of action have been stated. In that case we held that where a single act works injury alike to one’s person and to one’s property, the causes of action are distinct. We pointed out that they are governed by different limitations (170 N. Y. at p. 44). Like considerations are applicable here. A single act has injured realty and personalty. One cause of action is local and the other transitory. The act is single, but its consequences are divisible. (See also: Stone v. United, States, 167 U. S. 178 , 182; Barney v. Burstenbinder, 7 Lans. 210 .) We do not overlook decisions referred to by the defendant in which averments of injury to personalty were held to be merely incidental (Ellenwood v. Marietta

The defendant makes the point that if two causes of action have been stated they have been improperly united. It is true that the claims arise out of the same transaction (Code Civ. Pro. § 484, subd. 9). That by itself, however, is not enough. It must also appear that they do not require different places of trial (Code Civ. Pro. § 484). This requirement has not been satisfied, and hence the objection of misjoinder must prevail. To make out a misjoinder it is not necessary that the separate causes of action should have been well stated. It is enough that there was an attempt to state them |(Brock v. Poor, 216 N. Y. 387 ; Todaro v. Somerville Realty Co., 138 App. Div. 1 , 3; Mahler v. Schmidt, 43 Hun, 512 , 515).

The order should be reversed, with costs in all courts, and the demurrer sustained, with leave to the plaintiff, on payment of costs within twenty days, to amend his complaint; the first, third and eighth questions certified should be answered in the negative, and the seventh question in the affirmative; and it is unnecessary to answer the other questions.

The answers to the questions certified to this court depend upon the construction to be given to section 982-a of the Code of Civil Procedure. That section is the result of an amendment made to the law in 1913 (Laws of 1913, chap. 16). Prior to its enactment it was held that the courts of this state had no jurisdiction of actions for injuries to "real property lying without the state. (Brisbane v. Pennsylvania Railroad Company, 205 N. Y. 431 , and cases therein cited.) The' reason for this conclusion was, not that the owner’s rights were not violated or that the owner in such a case did not have a cause of action in the jurisdiction where the property was situated. The true reason for this conclusion was a very technical one that had no relation to the justice of the rule or the rights of the parties.

The development of the law in relation to local and transitory actions shows the nature of the technical rule which operated to deny redress to one whose real property situated in another jurisdiction was injured. The common law originally regarded all actions as local. The early rule required that the venue should be' correctly stated. In other words, the place where the fact in issue arose was required to be alleged. This rule arose out of the early practice which required a case to be tried by a jury of the vicinage who were presumed to have knowledge of the facts and the parties. When there were several issues and the facts alleged in relation to them arose in different places each issue would be tried by a jury summoned from the place in which the facts in dispute were stated to have arisen. (British South Africa Company v. Companhia de Mocambique, L. R. [1893] A. C. 602, 617.) When juries ceased to he drawn from the place where the fact took place and from among those who were supposed to he familiar with the circumstances “the law began to discriminate between cases in which the truth of the venue was. material and those in which it. was not so.” (British South Africa,

Chief Justice Marshall, in Livingston v. Jefferson (supra) made it clear that authority was the only support of the rule and he frankly said: “I have not yet discerned a reason, other than a technical one, which can satisfy my judgment.” This artificial and technical rule, working injustice as it often did, did not escape the efforts of Lord Mansfield to correct it. Thus in Mostyn v. Fabrigas (1 Cowp. 161; 2 Smith’s L. C. [9th ed.] 916) an effort was made to bring the rule of law in accord with reason and justice, hut the effort proved futile when the decision of Lord Mansfield was overruled in Doulson v. Matthews ([1792] 4 Term R. 503), which re-affirmed the old distinction. Speaking of this futile effort of Lord Mansfield, Chief Justice Marshall said: “One of the greatest judges who ever sat on any bench, and who has done more than any other to remove those technical impediments which grew out of a different state of society, and too long continued to obstruct the course of substantial justice, was so struck with the weakness of the distinc

Thus the Statute of Limitations affects the remedy and not the right, and although the remedy may be barred the right still exists. (Johnson v. Albany & S.

The theory of our law is that every man possesses certain rights, even though the law of procedure may not provide that the violation of these rights is actionable. This is also the theory of the common law, the Roman law and the modern civil law. (1 Bl. Com. 56, 123; Savigny on Obligations, Brown’s Abridgment, §§ 5-11.) Remedies or causes of action or forms of action may be bounded by territorial limitations, but rights, generally speaking, are not so circumscribed. Thus into whatever jurisdiction a man may go he has the right to his life, his liberty and his property. It may be that in certain jurisdictions the law of procedure is such that no redress can be given when these rights are violated, but the rights exist nevertheless. In the case under consideration the plaintiff had a right to his property even though it was situated in another state. The trespass by the defendant upon that property and the burning down of the buildings thereon was a wrong and because of this wrong the plaintiff has a right to redress. Owing to the defects in the law of procedure that right was not actionable, where timely objection was made, in this jurisdiction, prior to the enactment of section 982-a. This statute was enacted to give a remedy for such a wrong. The right to redress existed before the statute, but generally speaking it was not actionable. The statute, therefore, does not create a substantive right, but prescribes a remedy for a pre-existing right, which, before it. was enacted, could not in all cases be redressed in' this jurisdiction. As the statute creates only a remedy or cause of action it should under well-settled principles be given a retroactive effect.

The British South Africa Co. Case (supra) merely reiterates the rule of the common law as Chief Justice Marshall recognized and applied it, and decided that the rule of procedure adopted under the Judicature Act with regard to local venue, did not confer any new jurisdiction. The rule of procedure under the Judicature Act, under consideration in that case, was entirely different from the statute which is embodied in section 982-a of the Code. Moreover, as pointed out in the opinion of Lord Hersohell it has more than once been held that orders or rules under the Judicature Act “ are rules of procedure only, and were not intended to affect, and did not affect, the rights of parties.” The rule or order under the Judicature Act referred to in this case is different in its language, scope and purpose from the remedial statute embodied in section 982-a of our Code of Civil Procedure. In so far, therefore, as the British South Africa Company Case (supra) is relevant to this discussion, it is so only as to the rule which prevailed prior to the enactment of section 982-a of the Code, which rule it was the purpose of this statute to change.

Moreover, there is another reason which strongly indicates that the legislature intended section 982-a as a reme

It will not, I think, be argued that the enactment of this statute took away the right which previously existed to bring an action in this state for the breach of a contract relating to foreign real estate which occurred prior to the enactment of section 982-a. As to such actions, therefore, this statute is clearly retroactive. I think that the legislature intended by this statute to place the remedy for injuries to foreign real estate upon an equality with the remedy for a breach of contract relating to such real estate. It seems unreasonable to assume that the legislature intended that that part of the statute which relates

Section 982-a of the Code is a remedial statute and it should be liberally construed so as to effectuate its purpose, instead of placing upon it a construction which perpetuates as far as possible the technical and unjust rule it was designed to abrogate.

In my opinion the order of the Appellate Division should be affirmed, and the 1st, 2d, 3d, 4th and 5th questions answered in the affirmative, and the 6th and Jth questions answered in the negative, and in this view of the case it is unnecessary to answer the 8th question.

Willard Bartlett, Ch. J., Hiscock, Collin and Hogan, JJ., concur with Cardozo, J.; Seabury, J., reads dissenting opinion, and Chase, J., concurs.

Order reversed, etc.