Jacobus v. . Colgate , 217 N.Y. 235 ( 1916 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This case comes here on a demurrer to a complaint. The plaintiff's assignors were the owners of a milling plant in Kansas. More than thirty-three years ago, in August, 1882, the defendant, according to the averments of the complaint, "wilfully and wantonly" set fire to the plant and destroyed the mill and its contents. In December, 1913, the owners of the plant assigned their cause of action to the plaintiff, who is a resident of this state. In January, 1914, the summons was served.

The first question to be determined is whether the courts of New York have jurisdiction of the action. For the moment we lay aside the allegations of injury to the contents of the mill and view the action as one for injuries to the building only. There is no doubt that until 1913 our courts had no jurisdiction of actions for injuries to real property lying without the state (Brisbane v. Penn. R.R. Co., 205 N.Y. 431). Nothing inconsistent with that view was held in Sentenis v. Ladew (140 N.Y. 463). All that was there determined was the power, where other jurisdiction fails, to award judgment for the costs (Gaines v. City of NewYork, 215 N.Y. 533). In 1913, however, the Code of Civil Procedure was amended by adding the following provision (sec. 982-a): "An action may be maintained in the courts of this state to recover damages for injuries to real estate situated without the state, or for breach of contracts or of covenants relating thereto, whenever such an action could be maintained in relation to personal property without the state." The trespass complained of here occurred in 1882. We must, therefore, say whether the statute has any application to wrongs committed before its passage.

The general rule is that statutes are to be construed as prospective only (27 Halsbury's Laws of England, p. 159). It takes a clear expression of the legislative purpose to justify a retroactive application (Isola v. Weber, 147 N.Y. 329;O'Reilly v. Utah, N. C. Stage Co., 87 Hun, 406, 412;Matter of Protestant Episcopal Pub. School, 58 Barb. 161;United States v. Heth, 3 Cranch, 399, 413). Changes of procedure, i.e., of the form of remedies, are said to constitute an exception (Lazarus v. Met. E.R. Co., 145 N.Y. 581;Laird v. Carton, 196 N.Y. 169), but that exception does not reach a case where before the statute there was no remedy whatever (Kelley v. B. M. Railroad, 135 Mass. 448;Reinhardt v. Fritzsche, 69 Hun, 565; Shipman v.Treadwell, 208 N.Y. 404, 415; Germania Savings Bank v.Village of Suspension Bridge, 159 N.Y. 362). To supply a remedy where previously there was none of any kind, is to create a right of action. We need not dwell upon the question whether before this amendment of the Code, a trespass on foreign lands was recognized by our law for any purpose as constituting a wrong (Dicey Conflict of Laws [2d ed.], pp. 31, 32). If we recognized it as a wrong, we gave no redress for it. If the injured owner had suffered an impairment of his right, he had none the less no right of action. He may have had one under the laws of some other state or country. He had none under our laws. His cause of action till then was local, and limited by the boundaries of the state where the wrong was done. It has now become transitory, giving rise to "an obligatio, which like other obligations follows the person, and may be enforced wherever the person may be found" (Slater v. Mex. Nat. R.R. Co., 194 U.S. 120, 126). When the cause of action was local, it was not in this jurisdiction a cause of action at all. It became a cause of action by force of the statute which made it transitory. "A cause of action is the right to prosecute an action with effect" (Patterson v. Patterson,59 N.Y. 574, 578; People ex rel. Pells v. Supervisors ofUlster Co., 65 N.Y. 300, 308). "It is not possible for one at the same time to have a cause of action and not to have the right to sue" (Walters v. City of Ottawa, 240 Ill. 259, 263). We are reminded by Holland (Jurisprudence [11th ed.], p. 318) of the definition of the Institutes (Lib. IV, tit. VI): "Actio autemnihil aliud est quam jus persequendi judicio quod sibi debetur." In any community which has developed beyond the stage of self-help, a violated right gives rise to a right of action (Holland, supra). The primary or antecedent right may be distinguished in analysis from the right of action for its infringement, but the normal exercise of the state's power is through the agency of the courts, and hence a right which when violated does not create a right of action, is shorn of most of the incidents that make a legal right of value (Holland [11th ed.], p. 318; 1 Cooley on Torts, p. 20). For this reason it is that statutes which take away every remedy for past wrongs, as distinguished from statutes which merely change the remedy, are condemned as unconstitutional (Parmenter v. State of N.Y.,135 N.Y. 154, 166; Gilbert v. Ackerman, 159 N.Y. 118; Soper v. Lawrence Bros. Co., 201 U.S. 359, 370; Mulvey v. City ofBoston, 197 Mass. 178). The destruction of every remedy destroys the cause of action By parity of reasoning, the grant of a remedy where none of any kind was available, is equivalent in substance to the creation of a cause of action. We do not say that statutes of the latter class are unconstitutional because retroactive. To discuss the limits of constitutional power in that regard would lead us far afield. What we emphasize now is the distinction between statutes which merely change the procedure for the enforcement of a right and statutes which supply a remedy by which a right for the first time becomes enforceable.

This distinction was recognized by the House of Lords in a leading case in which the jurisdiction of the English courts in actions for trespass on foreign lands was considered with the amplest learning. In British South Africa Co. v. Companhia deMocambique (L.R. [1893] A.C. 602) the question to be determined was the effect of rules of court, adopted under the Judicature Acts of 1873, which abolished the technical rule of local venue. The holding was that the abrogation of that rule did not enlarge the jurisdiction in respect of injuries to foreign lands. The rule of local venue, it was held, was a rule of procedure. It determined the county or section of the realm in which the suitor must proceed. It assumed that jurisdiction was present, but defined the manner of its exercise. On the other hand, the rule that where the matter was local and arose outside the realm, there was no remedy in the courts of England, was held to be in the fullest sense a rule of jurisdiction. The House of Lords held that the Judicature Acts were not intended to confer upon the owners of foreign lands "a right of action in this country which they would not otherwise have possessed." Lord HERSCHELL pointed, out in his opinion that "a person whose lands situate in this country were trespassed upon always had a right of action in respect of the trespass;" and then he added in words precisely applicable here: "But in respect of a trespass to lands situated abroad there was no right of action, for an alleged right which the courts would neither recognize nor enforce did not constitute any right at all in point of law." (See also Ellenwood v. Marietta Chair Co., 158 U.S. 105;Huntington v. Attrill, 146 U.S. 657, 669.)

This conception of a right of action is criticised in the dissenting opinion. We are told that "when one without permission enters upon the property of another" in a foreign state, "and wrongfully sets fire to the buildings thereon and destroys them, it is evident that a wrong has been done, and that the right of the owner has been violated, and the owner has a right to redress." But that is precisely what the owner did not have until the amendment of the statute. He had, if you please, a moral right to redress, but he had no legal right to redress except in the state where the wrong was done. To give him a right to redress in this state was the very purpose of the amendment. Even now the wrong has not been transformed into an offense against our laws. The foreign has not been transformed into a domestic tort (Slater v. Mex. National R.R. Co., 194 U.S. 120, 126). The statute does not "vindicate a pre-existing right" under our law; it does not redress a pre-existing wrong. The primary wrong is still the violation of the law of the state where the act was done (Phillips v. Eyre, L.R. [4 Q.B.] 225, 239; Slater v.Mex. National R.R. Co., supra; Wooden v. Western N.Y. P.R.R.Co., 126 N.Y. 10, 14; Wharton Confl. Laws, § 478b). Out of the foreign tort there once grew a right of action territorial and local, which our courts would not enforce. Out of the same tort there now grows a transitory right of action which our courts will enforce. The right of action has not merely been changed; so far as our law is concerned, it has been created. But the wrong, the violation of the primary right, which it redresses, is defined by the foreign law.

It is not accurate, therefore, to say even to-day that the primary right is one established by the law of New York. But even if the primary right were established by our law, a statute creating a remedy where there had hitherto been none, would not for that reason be retrospective. Before the amendment of the Constitution in 1894, the negligent killing of a relative was a wrong to his dependents (Radley v. Leray Paper Co., 214 N.Y. 32,35). The damages to be recovered could not exceed $5,000, the right of action was limited, but the primary right had been declared. The amended Constitution did not create a new wrong, but abolished the limitation upon the remedy for an existing wrong. Yet our ruling was that the amendment did not enlarge the right of action for wrongs already done (Isola v. Weber,supra). It did not merely change procedure; it defined the remedial right.

We hold, therefore, that section 982-a of the Code is not a retroactive statute. It is hardly necessary to dwell upon the distinction between this case and cases where a jurisdiction already residing in one court is transferred or added to another (People v. Green, 201 N.Y. 172). In such circumstances there is merely a regulation of the procedure for the vindication of a right already legally enforceable. The decisive consideration here is that until the statute was adopted, no remedy of any kind was available in any court. It is not a sufficient answer to say that the old rule was unjust and technical. We may concede that it was. That is doubtless why the legislature has changed it for the future. The canons of statutory construction remain the same whether the change was wise or foolish. But if considerations of expediency are to control us, we shall see that the legislature had many reasons for refusing to establish a right of action in respect of past wrongs. It may well be that a retrospective statute would work greater hardships than any that it would avoid. The plaintiff complains of a trespass committed thirty-three years ago. The rule is that the Statute of Limitations does not begin to run against a suitor until the state has supplied him with a tribunal in which his suit may be maintained (Parmenter v. State of N.Y., 135 N.Y. 154,163; O'Hara v. State of N.Y., 112 N.Y. 146, 155; Crapo v. City of Syracuse, 183 N.Y. 395; Brehm v. Mayor, etc., ofN Y, 104 N.Y. 186; Code Civ. Pro. § 406). A cause of action does not accrue until its enforcement becomes possible. To hold that this statute is retroactive would, therefore, be to give a remedy for ancient and forgotten wrongs. It is conceivable, though far from certain, that section 390-a of the Code might apply to such action, and afford in some cases a rule of limitation (Code Civ. Pro. § 390-a). That section, however, has at best a limited application. It incorporates into our law the period of limitation of the state where the cause of action arose, but only when the cause of action did not originally accrue in favor of a resident of this state. Other restrictions, which we are not required at this time to approve or to condemn, have been placed upon it by judicial construction (Isenberg v.Rainier, 145 App. Div. 256). At best, therefore, that section would mitigate in a narrow class of cases the rigor of a retroactive operation of the statute in controversy. Emphasis is laid on the language of the statute (Code Civ. Pro. § 982-a) to the effect that the action may be maintained "whenever such an action could be maintained in relation to personal property without the state." But that provision has no bearing on the period of limitation. All that it means is that thejurisdiction shall be the same whether the subject-matter is real estate or personalty. It is true, of course, that the defense of the Statute of Limitations is not the primary question before us. We have a right none the less to consider it in determining whether a retroactive operation of this statute was intended by the legislature. It is always legitimate to show that one construction would lead to hardships which another would avoid (Suburban R.T. Co. v. Mayor, etc., of N.Y., 128 N.Y. 510,523; Reinhardt v. Fritzsche, 69 Hun, 565, 570). We are satisfied that the legislature would have been unwilling to give a remedy for past wrongs without limitation of time, and that to avoid that consequence, we must treat the statute as prospective.

If the action fails to the extent that it is brought to recover damages for injuries to real estate, the question remains whether to the extent that it is brought to recover damages for injuries to personal property it may not be maintained. The complaint alleges that a stock of flour, wheat, flour sacks and bran sacks, and also office furniture, stationery, books of account, and other personal property were contained "in and about said building or on the premises of said milling plant." All this personal property is stated to have been destroyed. On the one side, the plaintiff contends that there are two causes of action, — a cause of action for the injury to the realty, and another for injury to the personal property upon it. On the other side, the defendant contends that there is but a single cause of action for injury to the realty, and that the injury to the personal property is merely aggravation of the damages. We think our decision in Reilly v. Sicilian Asphalt P. Co. (170 N.Y. 40) requires us to hold that two causes of action have been stated. In that case we held that where a single act works injury alike to one's person and to one's property, the causes of action are distinct. We pointed out that they are governed by different limitations (170 N.Y. at p. 44). Like considerations are applicable here. A single act has injured realty and personalty. One cause of action is local and the other transitory. The act is single, but its consequences are divisible. (See also: Stone v.United States, 167 U.S. 178, 182; Barney v. Burstenbinder, 7 Lans. 210.) We do not overlook decisions referred to by the defendant in which averments of injury to personalty were held to be merely incidental (Ellenwood v. Marietta Chair Co., 158 U.S. 105; Houghtaling v. Houghtaling, 5 Barb. 379; Hill v. Bartholomew, 71 Hun, 453; Whatling v.Nash, 41 Hun, 579). In all those cases a wrongful entry upon land was the gist of the action. The plaintiff could not prove the injury to the personal property "without also proving the trespass upon real estate" (Ellenwood v. Marietta Chair Co.,supra). But here a wrongful entry is not even alleged. The defendant set fire to the property, but he may have done this without going upon the land at all. It does not even appear that the fire was applied to the buildings first, and that it then spread to their contents. The personal property is described, not only as "in or about the buildings," but also as "on the premises" of the plant. The allegations moreover permit the inference that it was substantial in quantity and value. We see no reason why an action for injury to that property may not be litigated in our courts.

The defendant makes the point that if two causes of action have been stated they have been improperly united. It is true that the claims arise out of the same transaction (Code Civ. Pro. § 484, subd. 9). That by itself, however, is not enough. It must also appear that they do not require different places of trial (Code Civ. Pro. § 484). This requirement has not been satisfied, and hence the objection of misjoinder must prevail. To make out a misjoinder it is not necessary that the separate causes of action should have been well stated. It is enough that there was an attempt to state them (Brock v. Poor, 216 N.Y. 387; Todaro v. Somerville Realty Co., 138 App. Div. 1, 3; Mahler v.Schmidt, 43 Hun, 512, 515).

The order should be reversed, with costs in all courts, and the demurrer sustained, with leave to the plaintiff, on payment of costs within twenty days, to amend his complaint; the first, third and eighth questions certified should be answered in the negative, and the seventh question in the affirmative; and it is unnecessary to answer the other questions.