People ex rel. Durant Land Improvement Co. v. Jeroloman — 53 N.Y. St. Rep. 249

Majority

p. 249

The People ex rel. The Durant Land Improvement Co., Resp’t, v. John Jeroloman, Justice, App’lt.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

Summary proceedings—Stay—Appear prom judgment por rent.

The amendment to § 1310 of the Code Civil of Procedure by act of January 34, 1893, that “when an appeal from a judgment for rent has been perfected, and execution stayed as herein provided, the appeal stays alt summary proceedings, pending or otherwise, to recover the possession of real property or dispossess tenants therefrom, based on a failure to pay the rent included in the judgment appealed from,” applies to proceedings where, pending an appealtaken from a judgment for rent by a tenant who gives an undertaking on appeal, summary proceedings ■ are begun to recoverthe premises, and the proceedings dismissed, but the orderreversed on appeal, anda new trial granted, pending which the act took effect.

Appeal from an order of the special term granting a mandamus.

H. B. Twombly, for app’lt; Esek Cowen, for resp’t

The relator in this Proceeding having pro cured a judgment for rent against its tenant (from which judgment the tenant has appealed and given security to stay execution), instituted a summary proceeding in the district court over which Justice Jeroloman presided, to recover possession of the premises because'of nonpayment of said rent, and such proceedings were thereupon had that in October, 1890, a final order was made by the justice dismissing said summary proceedings. From this final order the relator appealed, and on the 19th of January, 1893, the same was reversed, and a new trial ordered. On the 24th of January, 1893, and before said new trial was had, the legislature passed the following act:

“ Section 1. Section thirteen hundred and ten of the Code of Civil Procedure is hereby amended so as to read as follows : ‘Section 1310. Where ah appeal to the general term of any court or to the court of appeals, or otherwise, has been heretofore or shall hereafter be perfected, as prescribed in this chapter, and the other

p. 250

acts, if any, required to be done to stay the execution of the judgment or order appealed from have been done, the appe? I stays all proceedings to enforce the judgment or order appealed from, except that the court or judge from whose determination the appeal is taken may proceed in any matter included in the action or special proceeding, and not affected by the judgment or order appealed from, or not embraced within the appeal, or may causé perishable property to be sold pursuant to the judgment or order appealed from. The proceeds of such sale must be paid, to abide the result of the appeal, into the court from or in which the appeal is taken; or, if it was taken as prescribed in title fifth of this chapter, into the supreme court. When an appeal from a judgment for rent has been perfected, and execution stayed as herein provided, the appeal stays all summary proceedings, pending or otherwise, to recover the possession of real property or dispossess tenants therefrom, based on the failure to pay the rent included in the judgment appealed from.’

“ Sec. 2. All acts and parts of acts inconsistent with or repugnant to the provisions of this act are to that extent hereby repealed.

“ Sec. 3. This act shall take effect immediately.”

When said proceeding came up for trial the justice held that he was prevented from proceeding with the case, as the giving of security upon the judgment for rent operated as a stay. A motion was then made for a peremptory writ of mandamus, which was granted, and from the order granting the same this appeal is taken.

It is claimed by the respondents that the amendment to the ■Code, above referred to, is not, in terms, retrospective, and applies only to judgments entered and appeals taken after its passage, and we are referred to the rule laid down by Judge Denio in the case of Ely v. Holton, 15 N. Y., 595 , which was as follows:

“ The theory of amendments made in the form adopted in the present instance we take to be this: The portions of the sections which are repeated are to be considered as having been the law from the time they were first enacted, and the new provisions are to be understood as enacted at the time the amended act took effect. In other words, we consider the amendment as only equivalent to an independent statute, declaring in general language that an appeal may hereafter be taken from an order granting a new trial on complying with the conditions mentioned.”

And it is urged that, applying this rule of construction to the present case, it means that this amendment as to judgments for rent is to be read as though it was a separate section. It seems to us that it is an equally well settled canon of construction that where it is manifest what was the intention of the legislature, all statutes must be construed according to such intention. People v. Lacombe, 99 N. Y., 43 , and cases there cited. Upon an inspection of this statute it seems plain that it was the intention to make it applicable in all its parts to pending proceedings. It expressly alters the first part of the statute, making it applicable to appeals theretofore perfected ; and then, in the subsequent part of the sec-

p. 251

lion, provides that “ when an appeal from a judgment for rent has been perfected, and execution stayed as herein provided, the appeal stays all summary proceedings, pending or otherwise.” The reference to the preceding part of the section shows that the appeals referred to are those mentioned in the amended first part of the section, viz., those which had been theretofore or should be thereafter perfected. It is difficult to see how the legislature ■could have more plainly signified its intention to make these provisions apply to pending proceedings than this peculiar language has done. As a strong objection to making this legislation apply to -existing proceedings, it is urged that, if so construed, it would violate the provision of the constitution of the United States forbidding a state to pass any law impairing the obligations of contracts. It is well settled that a person has no vested right in any particular remedy, and the instances of changes of practice held applicable to pending litigations are too numerous to need citation. The case of Martin v. Rector, 118 N. Y., 479 ; 30 St. Rep., 27 , recognizes the validity of such litigation, and none of the citations by the respondent in any way impairs the force of that decision. It is undoubtedly true that, if the legislature had taken away all means of obtaining possession of the premises leased if no rent was paid, such legislation would have been unconstitutional ; but it only provided that, after the landlord has obtained ■a judgment for his rent, which has been secured upon appeal, he shall not be permitted to proceed with this particular remedy to obtain possession of the premises. The rent has been secured, if due. Why, then, should the landlord have a right to this summary remedy after all reason for its existence is gone? He should be remitted to the ordinary channels of legal procedure, if he seeks, under such circumstances, to enforce a forfeiture. We think, therefore, that the order appealed from was wrong, and should be reversed, with ten dollars costs and disbursements ■of appeal, and the motion denied, with twenty-five dollars costs.

Follett and Barrett, JJ., concur.