Holmes v. Davis , 21 Barb. 265 ( 1855 )

By the Court, Welles, J.

After much examination and reflection, I am inclined to think that the expression, “the general provisions of the revised statues relating to actions concerning real property,” in § 455 of the code, refers to all the provisions of a general character in chap. 5 of part 3d of those statutes, excepting where the code has otherwise provided. There may.be. I think there are, difficulties in the way of this construction; but none so great as those to be encountered in the attempt to restrict the application of the expression to title 7 of the same chapter of the revised statutes. If we interpret the section of the code referred to, as applying to. that title of the revised statutes only, there will be found no> authority for a party to demand a new trial after a judgment rendered upon a verdict in an action to recover the possession of real property, where the judgment has been regular, and no error has been committed; but such judgment will be forever conclusive upon the parties and privies. But it has been uniformly held that § 37 of title 1 of chapter 5 of the revised Statutes, which allows of two new trials in the action of ejectment, without showing irregularity or error, applies to actions to recover possession of real property under the code. Indeed it never could have been the intention of the lawmakers to have a party concluded upon his title by one verdict in such an action. In other respects there can be no doubt, I think, that the provisions of chapter 5 of the revised statutes referred to, other than those of title 7 of that chapter, were intended to be preserved, It will be found exceedingly difficult to get along with the action to recover possession of real property without them.

But it does not follow that the proceeding to recover the. mesne profits must necessarily be in the form of a suggestion according to the revised statutes. The application of their provisions is to actions brought in pursuance of the code. (Lang v. Ropke, 1 Duer, 701.) -The forms of action existing at the .time the code went into effect are abolished, and all rights of action then existing are authorized to be prosecuted in the manner therein provided. (§§ 69, 468.) Now if the right to mesne profits is a right of action, it must be enforced by action,' and not otherwise. No one will deny, I apprehend, that a party is entitled to a remedy for a claim to mesne profits, unlawfully withheld from him ; and if so entitled, that remedy must be by action or special proceeding, (§§ 1, 2 of the code.) The remedy would be an ordinary proceeding in a court -of justice, for the .enforcement of a right, and therefore an action. No one would think of calling it a special proceeding. It never was so regarded before the code. Under the revised statutes the claim was an appendage to the action of ejectment, and was to be recovered by a sort of continuation of that action; and by the code, may be recovered at the same time and in the same action with the possession, or in a separate, independent action. (§ 167, subd. 5. Livingston v. Tanner, 12 Barb. 481.) If a claim for mesne profits exists, an action must lie to enforce it; which action must be by summons and complaint, adapted to the nature of the injury. It is a maxim of the law, that there can be no wrong without a remedy—and that remedy, as I have attempted to show, is by action; the complaint in which, must be a plain and concise statement of the facts constituting the cause of action, and contain a demand of the relief to which the plaintiff supposes himself entitled. (§ 142.) In the present case the complaint does contain such statement and demand, and shows, as it seems to me, a good cause of action; and unless some error has been committed at the trial the plaintiff is entitled to retain the verdict.

The principal objection, raised upon the argument, to the rulings at the circuit, aside from those already considered, related to the measure of damages adopted by the judge at the trial. The jury were instructed that the plaintiff was entitled to recover one-third of all the proceeds, earnings and tolls of the grist mill received by the defendant between the 16th January, 1849, and the 30th of April, 1850, without making any deduction for the expense or labor of running the mill, and that they should estimate such proceeds, earnings and tolls from the evidence before them, showing the value of the use and occupation of the mill at that season of the year, and allow to the plaintiff, in making up their verdict, one-third of that amount.

The complaint alleges a forcible and unlawful eviction and expulsion of the plaintiff from the grist mill, and an entry thereupon by the defendant, on the 16th day of January, 1849, and that he continued to hold possession thereof and to exclude the plaintiff therefrom until after the expiration of the term mentioned in the lease, which was until and including the 30th day of April, 1850. This allegation is not denied in the' answer, and is therefore to be taken as true.

Under such a state of facts, the plaintiff was- entitled to recover according to the direction at the circuit. The defendant had no right to oust the plaintiff from his lawful possession, and then charge him with his services, and moneys expended, which were rendered and paid without his request or consent, and against his will. (Costigan v. The Mohawk and Hudson R. R. Co. 2 Denio, 609. Baker v. Wheeler, 8 Wend. 505. Lempriere v. Pasley, 2 T. R. 505, 508. Brown v. Sax, 7 Cowen, 95. Silsbury v. McCoon, 3 Comst. 381-385, per Ruggles J. Puffendorf, cited by Hill arguendo, 6 Hill, 428, note.) Without going through with a statement of these authorities, it seems to me that they fully sustain the principle of the rulings under consideration. One-third of the proceeds, earnings and tolls of the grist mill were secured by the written agreement to the lessee. And unless the defendant was entitled to a deduction for the expense and labor of running the mill, the rule of damages given by the judge to the jury was correct.

[Monroe General Term, December 3, 1855.

Upon the whole, I think, there was no error committed at the trial, of which the defendant has a right to complain, and that a new trial should be denied.

Selden, Johnson and Welles, Justices.]