Citation Numbers: 13 Abb. Pr. 388
Judges: McKissock
Filed Date: 5/15/1848
Status: Precedential
Modified Date: 1/12/2023
—This case came np on a motion to set aside a report of a single referee. The action was for use and occupation of a wharf in the city of Albany.
On the trial the plaintiff produced as a witness one Provost Yeazie, who swore that in 1843 he was the general agent of defendant to take care-of his steamboat Swallow in Albany, to which place she ran; that defendant had a place there to pile his wood for the boat, which witness hired of plaintiff’s testator, first by the month, and ’afterwards by the season, for $65. They piled the wood on the place. It was • necessary for the use of the boat. This was in the spring; and the season was to last
On his cross-examination he said he thought they occupied it about a month after they took it by the season. He had never hired a dock before by the season, as he was not the general agent. He was at this time employed to do defendant’s business there, and thought he had a right to hire by the season. At the “ start” defendant told him he had better hire by the month. But he afterwards hired by the season, because Delihanty would not hire it any longer by the month, and they could get no other place. He did not remember whether he had received orders of the defendant to hire by the season or not. He did not remember that he swore on a former trial that they occupied the wharf but two weeks after they hired by the season, nor that he then said that the season ended in January. Said the reason they quit the wharf was, that the defendant changed his mind, and ran the boat to Troy.
The defendant’s counsel then moved the referee to shake out the testimony of the witnéss on account of his interest, he having made himself personally liable. This the referee refused.
the defendant called a witness, who swore that Yeazie on a former trial testified that they had occupied the wharf two weeks under the hiring by the season, and that the season ended first of January.
The defendant’s counsel insisted that Yeazie had no authority to hire the wharf by the season; and that at all events, plaintiff could recover, in this form of action, only for the time actually occupied.
■ The plaintiff’s counsel insisted upon the reverse; and the referee reported in favor of plaintiff $75.61, which covered the time the wharf was unoccupied.
Two questions'present themselves in this case: Was Yeazie a competent witness ? and, Could the plaintiff recover, for use and occupation, rent accruing while the defendant was not in the actual occupation of the premises ?
Yeazie was the agent of the defendant; and it is contended that he made himself personally liable on the agreement, and is therefore incompetent for interest. He had the charge of the business of the defendant in respect to his steamboat in Albany, which was then running to that place. He was his servant
But it was not even shown that the witness Yeazie violated the private directions of the defendant. The evidence was, that ■he told the witness at first, that he had better hire the wharf by the month, which he did; but that afterwards he hired hy the season, because there was none other to be found 'or obtained, and Delihanty would then only hire by the season. This was but exercising a discretion fairly implied, and indeed plainly expressed by the word “better” in the instruction. The referee w'as correct in retaining the testimony of Yeazie.
The remaining inquiry is, Could the plaintiff recover for use and occupation while the defendant did not actually occupy the premises?- As the defendant went into possession under the agreement, there can be no doubt of the right so to recover, unless, as is contended by the defendant’s counsel, the Be vised Statutes have altered the law in that respect. (Jones a. Reynolds, 7 Car. & Payne, 335 ; Wooley a. Watling, Ib., 610 ; Little a. Martin, 3 Wend., 219 ; Featherstonhaugh a. Bradshaw, 1 Ib., 134 ; Chit. on Cont., 6 ed. 371 ; Gibson a. Counthorpe, 1 Dowl & Ryl., 205 ; Baker a. Holtpzaffell, 4 Taunt., 45 ; Wood a. Wilcox, 1 Den., 37.)
Though there is á change of the language introduced in the Be vised Statutes in relation to the action for use and occupation, yet I apprehend there was no intention to change the law in that respect. The provision in the Revised Laws (1813,444) is as follows: “It shall be lawful to and for the landlord, his heirs and assigns, where the agreement is not by deed, -to recover a reasonable satisfaction for lands, tenements, or hereditaments, _ held or occupied by the defendant, in an action on the case for the use and occupation of what was so held and enjoyed.” The
Let us now proceed to advert to some arguments that may be drawn from extrinsic circumstances and considerations, to show that the Legislature did not intend to alter the law from what it was before the revision of 1830.
In the first place the statute was originally remedial; and as it had been beneficent in its operation, there was no motive to limit its application. The revisors have left no note of an intention to alter the law, which we argue they would have done if any such intention existed. And the well-settled rule of interpretation so forcibly expressed in the following citation from the opinion of a most eminent j udge, admonishes 'us to be slow
But the defendant’s counsel referred us to the cases of Wood a. Wilcox (1 Den., 37) and Beach a. Gray (2 Ib., 84), as giving countenance to his interpretation of the Revised Statutes on "the point now in question. In the first of these cases, neither the defendant nor any one under him, had ever taken possession of the premises under the agreement; and the court decided that the action would not lie for use and occupation. Mr. Justice Beardsley, who delivered the opinion of the court, discussed the 'case solely on the question whether, under the 11th Geo. II., and our Revised Laws of 1813, which were like it, and had received the same interpretation, the action could be maintained where possession had never been taken, and proved most conclusively that it could not. And he expressly waived all aid in the argument from the Revised Statutes, though he intimated that the position contended for might be stronger under them if any change had been intended and made, of which he suggested the appearance, as the present statute of Hew York (Revised Statutes) was variant from the 11th Geo. II., and the Revised Laws. But finally, the whole that is said in relation to the suggested alteration is summed up in this: “ The words of the present statute of ¡blew York would seem to require an actual and continual occupation during the whole period for which the party is allowed to recover. But I need not insist on any distinction between this statute and that of the 11th Geo. II.; for, under the latter, a recovery cannot be had where no entry was made nor possession taken. An agreement to take is not sufficient.”
The other case (Beach a. Gray) may be stated thus: Gray had hired the premises of the plaintiff from May, 1842, till May, 1843, and went into the possession, which he abandoned in October, 1842. After the possession had been so abandoned, the plaintiff gave notice to the defendant that he would lease the
Thus the doctrine contended for by the defendant’s counsel receives no support from the cases in Denio, any farther than what may be derived from a passing remark of the judge, opportunely made, as to the change of phraseology in the new statute, which, however, was not material to the casé in hand, and which he declared had no effect on his judgment. And I may here add that the determination of the court on this point, in the present case, has the approbation of the same learned judge.
The motion to set aside the report of the referee must be denied.
Present, Beardsley, P. J., McKissook and Whittlesey, JJ.