Wells v. Higgins — 44 N.Y. St. Rep. 608

Majority

p. 608

James H. Wells, Trustee, Resp’t, v . Francis Higgins, Rec’r, App’lt.^[1]

(Court of Appeals, Second Division,

Filed April 26, 1892.)

Headnote

1. Receiver—Liability for rent.

In 1871, one McCunn hired certain lands for twenty-one years, covenanting to pay rent semi-annually, together with taxes, etc. In 1876, one O’Donohue was appointed receiver in an action to construe the will of McCunn, and authorized to lease the lands and tenements “ whereof he is. hereby appointed receiver,” and to pay taxes, etc. In 1877, in said action and another to declare void the devise of the real estate and to partition the same, defendant was appointed receiver in his stead “to receive the rents and profits of the estate, freehold and leasehold, and to collect and get in the outstanding personal estate of McCunn, and to “have and possess the same powers and be subject to the same duties and obligations ” as his predecessor. Defendant leased the premises to one F, and paid plaintiff the amount of the rent to September 1, 1878. In this action to recover thb rent reserved and certain taxes to be paid by the tenant, Held, that the title to the demised term passed to and was vested in defendant as receiver, and that he was liable for the rent accruing from September 1, 1878, to September 1, 1879.

2. Trial—Exception.

After counsel have tried to limit a verdict to be directed by insisting that it should be confined to rents accruing from March 1, 1879, and taxes-for that year, when the plaintiff is entitled to recover rent from September 1, 1878, and taxes for 1878 and 1879, and the. court in directing a verdict includes the taxes for 1876 and 1877, a general exception does not enable this court to decide that the taxes last named should not have been included.

Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment entered on a verdict rendered under the direction of the court at circuit.

This was an action by a lessor against the receiver of the estate of a deceased lessee to recover the • ent reserved and certain taxes,, which, by the terms of the lease, were to be paid by the tenant.

By a lease dated February 15, 1871, the trustee of one Clement. Moore demised to John H. McCunn certain lands in the city 'of Hew York for the term of twenty-one years, reserving an annual rent of $250, payable in semi-annual payments on the first days, of March and September.. The lessee covenanted to pay the charges for Croton water and all taxes, assessments and duties imposed during the term by federal, state or municipal authority.

March 28, 1876, in an action brought to construe the will of

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said McCunn, and to remove the executors and trustees nominated, therein, one O’Donohue was appointed receiver of the rents and profits of the real estate, freehold and leasehold, and of the personal property of said testator. The tenants were directed to at-torn to said receiver, and the executors to deliver to him all the estate, real, personal and mixed, lately belonging to said McCunn. The receiver was authorized to lease the lands and tenements, “whereof he is hereby appointed receiver,” and to pay the taxes, assessments and other lawful charges to which the premises should from time to time be subject

January 19, 1877, by an order made in said action and in another brought to declare void the devise of the real estate of said McCunn and to partition the same, said O’Donohue was removed at his own request and the defendant was appointed receiver in his place and stead “ to receive the rents and profits of the estate, freehold and leasehold, * * * and to collect and get in the-outstanding personal estate ” of said McCunn, with directions to tenants to attorn, etc. The order further provided that the defendant, as such receiver, should “have and possess the same powers, and be subject to the same duties and obligations” as were conferred or devolved upon his predecessor. The defendant, by his answer, denied that he became invested by said appointment with the title to the “real or leasehold estate,” but he admitted that in May, 1879, he leased the premises in question to one Federlein, and also that he had “paid to the plaintiff the-amount of the rent of the said premises to and including September 1, 1878.”

No rent was paid after the date last named, and on the 7th of November, 1879, summary proceedings were instituted to remove-the defendant as tenant, and said Federlein as under tenant, from the possession of the premises, based on an affidavit alleging, and a summons reciting, that the defendazit entez’ed into possession and sub-let, and that the defendant as tenant, and said Federlein as under tenant, had made default in the payment of the rent, and as such held over and continued in possession. No answering affidavit was filed, but on the 12th of November, 1879, as the record of the district court shows, the tenant and under teziant appeared by separate attorneys, and by consent judgment of dispossession was duly rendered “in favor of said landlord,” and against the “said tenant and all other persons.” A warrant was issued on the 19th, and returned the same day by the marshal, with a certificate that he had put the landlord in full possession of the premises in question.

Samuel Jones, for app’lt; Oharles JS. Souther, for resp’t.

The defendant contends that he is not liable in this action because there was privity neither of contract nor estate between himself and the plaintiff. There was no privity of contract, but we think that the facts appearing in the foregoing statement conclusively show that the defendant was in possession of the premises in question, and, presumptively, that he was .in pas~

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■session from March 3, 1877, when his bond as receiver was filed. If he did not then take possession, it was incumbent on him to ■ show it. He admitted that he was appointed receiver February .28, 1877; that he subsequently qualified, and that he paid “ the amount of the rent * * * to and including September 1, 1878. ” This admission fairly involves the proposition that he paid the rent that fell due according to the terms of the lease from the time that he became receiver until the date named. Whether •the defendant was appointed receiver of the real estate of which the testator died seized, or simply of the rents and profits thereof, is not here important, because he was appointed receiver of the personal estate, and, according to the Revised Statutes, leases for years “ go to the executors and administrators to be applied and distributed as part of the personal estate of the testator or intestate,” and are required to be “included in the inventory -thereof.” 4 R. S. (8th ed.), 2556; Pugsley v. Aikin, 11 N. Y., 494 .

We think that the title to the demised term passed to and was vested in the defendant as receiver, and that he is therefore liable for the rent accruing from September 1, 1878, to and including September 1, 1879. Woodruff v Erie R. R. Co., 93 N. Y., 609 ; Frank v. N. Y., L. E. & W. R. R. Co., 122 id., 197; 33 St. Rep., 235 .

Upon the trial a tax bill was received in evidence for the taxes of 1876, 1877 and 1878, confirmed, respectively, September 14, 1876, October 9, 1877, and October 11, 1878. It also included the Croton water rent for 1876 and 1877, and was receipted by the proper officer as having been paid January 30, 1880. An■other tax bill, which included the taxes of 1879, confirmed October 17 of that year, and 'the Croton water charges for 1878, was also read in evidence. Both were objected to as irrelevant and immaterial, but neither as incompetent Upon the close of the ■evidence the counsel for defendant, after his motion to dismiss the complaint had been denied, asked the court to direct the jury that their verdict must be limited to the rent from May 1, 1879, to November'!, 1879, and to the taxes of 1879, with lawful interest upon each. This motion was denied, and thereupon the •court was asked to limit the verdict to .the rent from March 1, 1879, to November 19, 1879, and to the taxes for 1879, besides interest The court denied this motion also, and directed a verdict for the plaintiff “ for the sum of $858.57, being for taxes, ,$395.49; interest thereon, $123.55, together, $519.04; and for rent, $250; interest thereon, $89.53, together, $339.53, to which ■direction counsel for the defendant duly excepted."

While we are asked to review none of these rulings, we have -considered them in order to determine whether the defendant -should be relieved from the payment of the taxes that accrued prior to his appointment as receiver. The objection to the ta-x bills was not to the competency of the evidence, but to its materiality, and as all of one was material and a part of ■ the other, the objection, as made, was properly overruled. If the defendant wished to exclude the taxes that became due before he was appointed receiver, his objection should have been more specific and

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addressed to that part of the first bill that embraced those items. The same criticism applies to the motions to limit the verdict, as. neither time did he include all the rent that fell due, or the taxes that became payable, while he held the title to the lease and was in possession of the premises. The limitation applied for was too sweeping, and the application was properly denied for that reason.

The exception to the direction for a verdict was general and, if-we have reasoned correctly thus far, was too broad, as it did notdmng before the mind of the trial judge or of the opposing counsel the point that the amount included for taxes was too large, because it embraced items accruing prior to March 3, 1877. If the exception had been to so much of the direction as covered the old taxes, the point could have been understood and an opportunity would have been afforded for correction, if the court so-desired, or the opposing counsel wished to consent to a modification. Sterrett v. Third Nat. Bank, 122 N. Y., 659 , 662; 34 St. Rep., 241 .

"Where a portion of a charge excepted to is correct in part and no qualification is suggested, a general exception cannot be sustained. Adams v. Irving Nat. Bank, 116 N. Y., 606 ; 27 St. Rep., 733 ; Smedis v. B. & R. R. R. R. Co., 88 N. Y., 13 ; Donovan v. Vandemark, id., 668.

So, as we think, after counsel have tried to limit a verdict, about to be directed by insisting that it should be confined to-rents accruing from March 1, 1879, and taxes for that year, when the plaintiff is entitled to recover rent from September 1, 1878, and taxes for 1878 and 1879, and the court, in directing a verdict, includes the taxes for 1876 and 1877, a general exception does-not enable this court to decide that the taxes last named should not have been included. Tuers v. Tuers, 100 N. Y., 196 .

It is unnecessary, therefore, for us to decide whether the defendant is liable as the successor of O’Donohue upon the theory that the receivership was continuous.

The judgment should be affirmed, with costs.

All concur.