Marquart v. La Farge — 12 N.Y. Super. Ct. 559

Majority

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John Marquart, respondent, v. John La Farge, appellant.

Headnote

An appeal from a judgment to the General Term only brings under review the questions of law raised at the trial, and the exceptions there taken. It brings the facts and evidence under consideration, no further than is necessary to raise the questions of law.

Such an appeal will not present, for review, an order of the Special Term, denying a motion for a new trial, made on the ground that the verdict is against evidence. If the party wishes to raise that question in the General Term, he should appeal from the order denying a new trial

When a person is in the quiet and peaceable possession of premises, with the knowledge and acquiescence of the owner, for upwards of a month, and has taken such possession under a purchase from one who claims to have a parol lease from such owner, and was in actual possession for two months, he is to be deemed rightfully in possession, so far as to entitle him to occupy till the 1st of May then next, or, at least, until the tenancy be terminated by notice. The owner may not forcibly eject him, and defend the act by showing that such alleged parol lease was not binding upon him.

Still less was the owner justified in closing the entrance, and refusing to permit such tenant to remove his goods.

In an action for damages, in such case, the owner is liable for the value of the goods detained, and for the injury done by breaking up the business of the ten- . ant, who kept a refreshment saloon within the purlieus of a theatre.

In such case it is not erroneous to allow evidence that “ the plaintiff did a pretty large business”—that “ the business was good and profitable,” and that “ one half the receipts were clear profit,” to be given to the jury, among other testimony, to aid them in fixing the amount of damages.

(Before Hoffman, Siosson and Woodruff, J.J.)

Heard, April;

decided, May, 1856.

Appeal, by defendants, from a judgment in favor of plaintiff for $979.43 damages and costs.

The action was brought to recover damages for the unlawful and forcible entry, by the defendant, into a refreshment saloon in the Metropolitan Theatre, then possessed and occupied by the plaintiff, and, also, for taking and converting to his own use, a num

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"ber of articles of personal property, enumerated in the complaint, then owned and possessed by the plaintiff, The damages were laid at $5,000.

The answer averred that the defendant was the owner of the saloon, and justified his entry as such, and denied the conversion of the goods and chattels mentioned in the complaint.

The cause was tried before Bosworth, J., and a jury, in June, 1855.

It was proved, on the trial, that on the 8th or 9th of January, 1855, the defendant caused the saloon in question, which was then, and had been for more than a month, in the possession and occupation of the plaintiff, to be closed, and the doors to be fastened, so as to exclude the plaintiff and all other persons therefrom; and that the • liquors, provisions, and other articles mentioned in the complaint, belonging to the plaintiff, were, at that time, in the saloon, and that the defendant had refused to permit the saloon to be opened, so as to enable the plaintiff to remove them.

It also appeared in evidence that, in the month of September or October, 1854, one Simon Steinfret had taken possession of the saloon, and had continued in the occupation thereof, in the business of selling liquors, confectionary, and refreshments generally, until the 4th of December following, when he sold out to the plaintiff, for the sum of $1,100. Steinfret, who was examined as a, witness for the plaintiff, testified that he hired the saloon of one Henry Willard, who was in possession of the Metropolitan Theatre, under a lease, it was alleged, from the defendant, who. was the owner of the building; that he paid Willard, as rent, $25 per week, until the saloon was finished, and afterwards $100 per week, and that the plaintiff was to pay Willard the same rent until the first of May following. This witness further testified that, whilst he was in the occupation of the saloon, the defendant was frequently there, and inquired of him about his business, and asked what rent witness paid, and thought that the business would be better by and by, when everything was finished.

Another witness, on the part of the plaintiff, swore that the defendant was in the saloon when occupied by the plaintiff, and talked with the plaintiff, but that he did not hear what was said. This witness was asked, what was the extent and amount of the plaintiff's business. The counsel for the defendant objected to

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the question; the objection was overruled, and the counsel excepted to the decision.

The witness answered, that the business was good and profitable, but that he could not tell the amount of the receipts.

The witness was then asked, what proportion of the receipts was profits ?

To this question, also, the defendant’s counsel objected; the objection was overruled, and the counsel excepted.

The witness answered that he knew that onc-half of the receipts was clear profit. This witness also testified that the saloon was closed by building a brick wall in the door-way, and that the defendant would not permit the wall to be taken down, so as to enable the plaintiff to get his property, which was in the saloon.

Another witness, for the plaintiff, swore that he saw the defendant in the saloon on the 2d or 3d of January, and heard him ask plaintiff how his business was ? Plaintiff replied, he was doing very well. They talked about repairing a steam pipe, and defendant said that he would attend to it; that his men had been backward.

The plaintiff then proved that, on the 4th of February, the defendant caused Willard to be dispossessed, under .the statute for the non-payment of rent, and that, in the proceedings, the premises in the occupation of Willard, as tenant, were described as the Metropolitan Theatre.

Other witnesses were examined, on the part of the plaintiff, but it is not deemed necessary to state their testimony, as it had no bearing on the questions of law decided by the court.

When the plaintiff rested, the counsel for the defendant moved, upon several grounds, for a non-suit. The motion was denied, and the counsel excepted to the decision.

Evidence was then given on the part of the defendant, tending to show that he had never rented the saloon to Willard, and that Willard had no authority from him to rent it to others. He also proved, that on the 12th of February, he had given a notice in writing to the plaintiff, to remove his property from the saloon-; that some of the goods were covered by a mortgage for $480, and that those, with his consent, had been taken possession of by the mortgagee.

When the testimony was clósed, the motion for a nonsuit was

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renewed. It was again denied, and the defendants’ counsel excepted to the decision.

The Judge charged the jury, in substance, as follows:—That if the defendant was in possession of the premises, without right, as against the defendant, there was no doubt as to the rule of law, that he could not recover for an entry made by the defendant. After stating the rules by which the jury were to determine whether the plaintiff had a right to be in the premises and continue, the court further charged, that if the jury should find that he had a right to be there, then the defendant was liable. In estimating the damages, if you find for the plaintiff, you may take into view the breaking up of the plaintiff’s business, and give him such damages therefor as you may think he has sustained. But they must bear in mind that the same was uncertain, and must have terminated by the dispossession of Willard on the 4th of February, 1855. In regard to the personal property, if you find for the plaintiff, the defendant is liable for the value of it at the time he deprived the plaintiff of it. But the amount or value taken by the mortgagee should be deducted, and the balance plaintiff is entitled to recover for, in addition to the damage from breaking up his business.

The jury rendered a verdict for plaintiff for $806.25.

Leave was given to the defendant to make a case, upon which he moved, at the Special Term, for a new trial, upon the grounds that the verdict was against law and evidence. The motion was denied, but there was no appeal from the order denying it. The appeal was from the final judgment, and came up upon the case as a bill of exceptions.

P. G. Clark, for the defendant.

The motion for a nonsuit ought to have been granted, and we are clearly entitled to a new trial. The defendant was the owner of the saloon, and the plaintiff proved no right of possession; he was a mere intruder, and the plaintiff had a perfect right to enter and turn him out, and was not liable to any action for the exercise of his legal right. (Hyatt v. Wood, 4 John. 150 .) Whether such was his right was a question of law which the court should .have decided. The Judge erred in submitting it to the jury. The

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court also erred in charging the jury, that, in estimating the damages, they might take into consideration the breaking up of the plaintiff’s business, and give him damages therefor, and upon a' motion for a new trial upon a case, any objection may be taken, which, although not raised upon the trial, had it been raised, could not have been obviated. ( 1 Wend. 180 ; 4 Wend. 514 .) As to the personal property, the plaintiff is not entitled to recover, as there is no evidence of any conversion of, or interference with, the property by the defendant, except to close the door of the saloon, which was a lawful act. The plaintiff had due notice that the saloon was to be closed, and that he must move his goods, and he declined to do so. It was, therefore, by his own neglect that he lost his goods if any were lost. As to the damages, the Judge erred in allowing the questions that were put as to the value and profits of the plaintiff’s business. Finally, we insist, that the verdict was against evidence, and the damages excessive.

0. Schaffer, for the plaintiff.

The judgment, we submit, ought to be affirmed, with costs. Whether the plaintiff was lawfully in the possession of the saloon, so as to render the entry of the defendant unlawful, was a question which, upon the evidence, it belonged to the jury to determine. They have determined it in favor of the plaintiff upon competent proof, and their verdict cannot be disturbed. (1 Greenl. on Ev., p. 55, § 44; Starkie on Ev. 664.)

Then as to the personal property, the question of its conversion has also been found by the jury in favor of the plaintiff, and upon very sufficient evidence. Even if the breaking into the saloon during the absence of the plaintiff and walling up the door with brick so as to bar the access of the plaintiff, was not a conversion, the refusal of the defendant to allow the plaintiff to remove his property, undoubtedly was. The verdict is fully sustained by the evidence, and the damages, so far from being excessive, were lenient.

This is an appeal from a judgment, and yet-the points submitted by counsel for the appellant on the argument, relate chiefly to the evidence, and the facts which he conceives were established thereby, and tend to show that the verdict is against the weight of the evidence.

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That question does not properly arise upon an appeal from a judgment on the verdict. By section 348 of the Code, an appeal upon the law only lies from a judgment entered at Special Term, unless the trial be had before the court or referees. When the trial is by a jury, their finding can only be reviewed by a motion for a new trial, under section 349, and if the moving party, having made such a motion at Special Term, is not satisfied with the decision there made, he should appeal from the order denying such new trial. An appeal from the judgment does not bring such an order under review, except so far as the consideration of the questions of law raised at the trial, and the appellant’s exceptions there taken may have that effect. So far as the facts are involved, the finding of the jury must, upon such an appeal be taken as conclusive and final.

The appellant in this case was, therefore, in error, in supposing that his appeal brought before the General Term the broad question whether a new trial ought to be granted.

It may, however, be satisfactory to the parties to say, that wc have looked into the evidence, and are satisfied that the verdict ought not to have been set aside as against evidence, and that, in this respect, the order denying a new trial was right, and so we should feel constrained to say if an appeal from that order had been regularly before us.

The questions were whether the plaintiff was in the rightful possession of the saloon from which he was forcibly ejected or excluded by the defendant, and whether he had a right to continue in such possession; whether the defendant, on entering and excluding him from the saloon, took and detained the plaintiff's property against his will, and what damages did the plaintiff sustain by reason of such entry, exclusion, and detention.

There was evidence that Steinfret the assignor of the plaintiff, under color of a hiring from Willard, the lessee of the theatre, entered into possession of the saloon, stocked it with liquors, furniture, materials for refreshments, &c., and kept it for about two months. That defendant was there frequently during that time; inquired about the business; expressed the opinion that the occupant would do better by and by, when every thing was finished; recommended him to fit up the saloon somewhat more attractively; inquired into the amount of rent he paid; and, by his acts and

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conversation, warranted the belief that he orally at least assented to Steinfret’s occupation, and to his payment of rent to Willard, which Steinfret testifies he did pay. At about the end of two months Steinfret sold out to the plaintiff; he took possession and occupied, without objection, for a month or upwards; the defendant was also there, and knew of the plaintiff’s occupation, and apparently acquiesced; inquired also of him how business was, and promised to have some repairs done, which the plaintiff required for uses connected with the saloon.

Doubtless there is evidence in conflict with this testimony, and tending to show that the defendant had not let the saloon to Willard with the theatre; but the jury were warranted in finding that this was such an acquiescence in the hiring by the plaintiff, or his assignor, as would entitle him to occupy till the first of May then next, or at least such as would have made the plaintiff a tenant at will or by sufferance, (1 Rev. Stat. 744, § 1 and § 7,) and, in either case, the defendant could not terminate the tenancy by a forcible expulsion of the plaintiff from the premises; still less did it justify the defendant in closing the entrance to the saloon with masonry, and refusing to suffer the plaintiff to remove his property therefrom, which there was evidence tending to show, and which we think proved, the defendant did.

This view of the subject also disposes of the exception taken to the refusal of the Judge to order a nonsuit, for although the defendant, more than a month afterwards, notified the plaintiff-to remove his goods, this, if it had any proper effect upon the plaintiff’s rights, which I doubt, after the defendant’s previous refusal, could only affect the amount of damages and not the right of action. '

The only other exception taken to the rulings of the court on the trial, relates to the admission of evidence of the extent of the plaintiff’s business; the amount of business done, and what proportion of the receipts were profits.

The plaintiff was engaged in keeping a restaurant or refreshment saloon. The defendant forcibly bricked up the entrance and broke up the business. For this the plaintiff was entitled at least to a full indemnity. The good-will of that business was wholly destroyed. Now it was certainly competent to prove, in some manner, the nature and extent of the injury, and the value of the

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business was a proper subject of estimate by the jury. It may be that a calculation of possible or probable profits, in view of the ordinary uncertainties of business, would not be allowable. If the question objected to seemed to call for such a calculation, it was not so answered; all that was testified was, that the “plaintiff did a pretty large businessthat “the business was good and profitable,” and that “ one-half the receipts were clear profit.”

This general testimony to the value of the business, though not specific enough to form a very clear guide to the value of the good-will, unless followed by other proof, was, in its nature, competent. In judging of the extent of the injury, the plaintiff had a right to place the jury, as nearly as possible, in a situation to know all the facts and circumstances attending the transaction, and the condition in which he was before the injury, and the effect of that injury, as fully as if they had been actually cognizant of these facts and circumstances as they transpired.

The judgment must be affirmed, with costs.

Cases cited

Archer v. Hubbell 4 Wend. 514 N.Y. Sup. Ct. p. 563