Mayor of New-York v. Stone — 20 Wend. 139

Majority

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The Mayor, &c. of the city of New-York vs. Stone and others.

Headnote

Under the act subjecting the city of Wew-York to the payment of damages occasioned by the destruction of buildings by order of the Mayor, to prevent the spreading of a conflagration, no one but owners or persons having an estate or interest in the building destroyed are entitled to claim damages.

An oiener or lessee who has goods on hand as a factor or commission merchant, and has a lien upon the same for charges or advances, may claim damages to the amount of his Men; but he is not entitled to claim the value of the goods for the benefit of the owner.

A'person having goods stored in a building destroyed, of which he is not a tenant or occupant, is not entitled to be a claimant under the act.

It is no bar to a claim that the party asking an assessment had effected an insurance upon the property destroyed, and has received moneys on such insurance.

Interest upon the value of the goods lost, is a proper item in the estimate of damages.

This case came before the court on a return to a certiorari made by the common pleas of New-York, to review the proceedings

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had in that court for the purpose of assessing the damages sustained by the defendants in error in consequence of the destruction of a building, of which they were lessees, by order of the mayor of New-York with the concurrence of two of the aider-men of the city, by virtue of the powers conferred upon him by the 81st section of the act particularly relating to the city of New-York, 2 R. L. 368, during the great fire in that city, which commenced 16th December, 1835. The return shewed, 1. A precept issued by the mayor commanding the sheriff to summon a jury to enquire, &c. 2. An inquisition of the jury finding that the defendants in error were lessees of a building destroyed, and assessing their damages at a certain sum. 3. An affidavit of the counsel of the corporation detailing the facts elicited on the inquiry, as that the defendants in error had at that time goods in store toxthe amount of $225,743.70, of which goods a part only amounting in value to $4,586.52 belonged to them, and the residue was held by them as factors or commission merchants, and that a portion of the goods belonging to them to the value of $1,614.80 was saved ; that the goods in the store at the time of the fire were insured to the amount of $106,500 on policies of insurance, of which sum $60,960 had been paid by the insurers, and received by the defendants in error. 4. An agreement that the assured should pay over to the insurers such proportion of the damages which should be recovered in their proceedings as should belong to them ; and 5. A rule of the common pleas setting forth the inquisition and stating the filing of the affidavit of the counsel of the corporation, and then confirming the inquisition. There were two other cases brought up at the same time in which the proceedings were the same as above stated, except that by one of the inquisitions damages were assessed and allowed to several individuals without stating the interest they had in the building destroyed, or the nature of the loss sustained, as thus “and they further upon their oaths say that George “Meyer having an interest in the said premises Number 57. “ Water-street, has sustained damage by means in the said writ c< mentioned over and above his costs and expenses of the said

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a inquisition and proceedings to the amount of $4,345.38, be- u side his expenses incurred about the said injury, assessment and ^proceedings to be taxed and allowed.” In reference to which assessment in favor of George Meyer the counsel for the corporation in his affidavit stated, 61 that a claim was also made by and u on behalf of George Meyer for merchandize destroyed in the 66 cellar of the said building No. 57, Water-street, valued at |4,~ a 959,50, at a credit price j in relation to which claim it appeared ££ in evidence that the whole of the said merchandize belonged <£ to persons in London, and had been consigned to the said George 6£ Meyer for sale j and that the same was deposited by hin on a storage with the said Lansing and Monro in the said cellar.” The counsel for the corporation further stated in his affidavits in one or other of the cases, that the judge presiding at the taking of the inquests charged the jury in substance; that a lessee of a building destroyed was entitled to recover the full value of goods lost by such destruction, although he held them merely as a factor for sale on commission, because a commission merchant, having goods on hand for sale, upon which he had made advances or had a lien, was in law deemed the owner of the goods and was entitled to recover the full value thereof in his own name, subject only to an account with his principal : that the circumstance of the goods having been insured, and of moneys having been received on such insurance, was not a ground of diminishing the recovery inasmuch as the assurers had a right by substitution to indemnity in the name of the assured under the act; that persons having property stored in a building, although not tenants or occupants thereof, were protected by the act equally with owners, lessees or occupants, and might be claimants under the act; that it made no difference whether the property belonged to the claimant in his own right, or was held by him as a consignee, commission merchant, factor or agent, and that the jury would be warranted in allowing interest upon the value of the goods destroyed ; which charge was excepted to by the counsel for the corporation. The jury in making their assessment followed the instructions of the judge. The causes were argued by

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R. Emmet 8? G. F. Taiman, for the corporation.

B. Lord,, jun. fy S. A. Foot, for the defendants in error.

We have already determined, in construing the 81st section of the act relating to the city of New-York, that the owner or lessee of the building destroyed was entitled to an assessment of damages for the loss sustained in respect to merchandize, and the other personal effects belonging to him and contained therein. 17 Wendell, 285. It was not then important to consider whether the owner of the goods, who had no estate or interest in the building, came within the purview of the statute; that question is now presented; and also whether, if he possess such interest, he can claim damages for goods held by him for sale on commission.

In respect to the first question, the statute, I am of opinion, is too explicit to admit of doubt. It provides that any person interested in the building may apply for the precept, and that the jury may assess the damages which the “ owners of such building, and all persons having an estate or interest therein,” have sustained. The term interest, (the only word upon which a doubt can possibly be raised,) in the connection in which it is found, clearly imports some share in the building itself, and was intended, probably, if not to be regarded as synonymous with estate, to include any degree of interest or claim therein which might not, in technical language, fall within any of the subdivisions of estates. It may well however, be regarded as synonymous, as the term estate, when used in reference to land, signifies simply an interest therein; 2 Black. Comm. 103 ; and both terms are in common use in the transfer of titles, as may be seen in the various forms of conveyance. The word interest is also frequently used by the legislature in respect to real estate. 1 R. L. 503, § 1. Laws of 1816, p. 63, and others which might be referred to.

The second question is more embarrassing. So far as charges or advances upon the goods held on commission exist, the lessee must be considered, to this extent, as owner having a lien upon

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them to such amount 5 but beyond this there is difficulty in discovering how his rights or interests are connected with the loss or damages incurred. The principle and provisions of the statute are not like those of Ed. 1, commonly called the statute of hue and cry, or 4 Geo. 1, called the riot act, or 9 Geo. 1, called the black act, by which the inhabitants within the hundred are made responsible to the party aggrieved, either in terms or in legal effect, for the damages sustained. There no restriction existed in respect to the description of persons to be indemnified | whoever was robbed, had Ms dwelling demolished by a riotous assemblage, or his cattle maliciously maimed, &c. could prosecute the hundred and recover his damages. This body was said to have been simply substituted in place of the trespassers $ and any person who could maintain the action of trespass at common law might well pursue the remedy under these statutes. They gave an absolute right of redress to the party injured, and whether obtained through his bailee, trustee, agent or servant, was altogether unimportant as respected the defendants, provided the forms of law authorized the remedy in the names of the parties suing, so as the recovery should be conclusive upon the real party in interestj because if the suit could not be sustained by these persons, the owner himself might bring it. Hence it was held, that a servant robbed in his master’s absence might maintain the action, and declare that he was possessed as of his own proper goods, or the master might bring the action in his own name ; so the servant might recover for the whole, where part belonged to him and part to the master; but if the robbery was in presence of the master, then he alone could sue. 3 Bac. Abr. 512. 2 Salk. 613. 2 Saund. 379, 380, and n. 15. See also note to Pinkney v. Inhabitants of East Hundred, id. 374, 379.

Here the damages to be assessed and recovered are expressly limited to persons possessing an estate or interest in the building destroyedj not given generally to the party aggrieved. It is the damages which this particular description of persons, and none else, have sustained, which are provided for by the statute. We must remember too, that the act of pulling down the building was

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lawful at common law; that here is no substitution of the city-in the place of trespassers, to beheld accountable upon prniciples regulating the damages, the same as if claimed against them; and that the damages rest solely, both as regards the right to recover and liability to, pay, upon the terms of the statute itself. I admit as to the claimant the statute is remedial, and should be liberally expounded in respect to him ; but this principle of con-. struction will not carry us out of its provisions and extend the remedy to persons not included, and in respect to whom the damages of the claimant himself have no necessary connection. The plain import of the statute is derived from its terms, being to keep harmless persons interested in the buildings pulled down; when it is so expounded as to accomplish this, its object is completely attained.

If the act (as in the acts against the hundred) had provided indemnity generally to all persons sustaining damages, then the right to compensation being secured to all, the only question that could arise would be in respect to the form of the remedy; and in analogy to the course of proceedings at common law, there could have been no great difficulty in permitting the party in possession of the goods, such as consignee, bailee, &c. to recover for the owner. Possession alone might then have sufficed for the purpose of the remedy under the law, leaving the plaintiff in the action to settle with the party in interest. But how can we *say that the owner may recover here through his agent when the corporation are not made liable for the loss I The question is not one of remedy, but of right; the bailee is met by the objection that the owner is not provided for in the particular case; it not coming within the scope and meaning of the act; damages are given to the party showing an interest in the building ; those which he has sustained, not the bailor or some third person. To say therefore that he may recover for goods belonging to the consignor, bailor or the like, would be violating the principle of the statute through the form of the remedy. Where the case of the •claimant comes within the provision of the law, and he is entitled to damages, any remedy for the loss that he may have against

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third persons is not to be regarded : it is enough for him that he may look to that given to him under the statute.

Interest was properly allowed j it entered into an estimate of the loss which the party had sustained, and was a part of the damages.