Wells v. Higgins

• Decision Date: 26 April 1892
• Parties: WELLS v. HIGGINS.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 459

30 N.E. 861

WELLS

v.HIGGINS.

Court of Appeals of New York,

Second Division.

April 26, 1892.

Appeal from supreme court, general term, first department.

Action by James N. Wells, trustee of Clement Moore, against Francis Higgins, receiver of the estate of John H. McCunn, deceased, to recover rents and taxes. From a judgment of the general term, affirming a judgment entered on a verdict for plaintiff by direction of the court, defendant appeals. Affirmed.

Samuel Jones, for appellant.

Charles E. Souther, for respondent.

The other facts fully appear in the following statement by VANN, J.:

This was an action by a lessor against the receiver of the estate of a deceased lessee to recover the rent reserved and certain taxes, which, by the terms of the lease, were to be paid by the tenant. By a lease dated February 15, 1871, the trustee of one Clement Moore demised to John H. McCunn certain lands in the city of New York for the term of 21 years, reserving an annual rent of $250, payable in semiannual payments on the 1st days of March and September. The lessee covenanted to pay the charges for Croton water, and all taxes, assessments, and duties imposed during the term by federal, state, or municipal authority. March 28, 1876, in an action brought to construe the will of said McCunn, and to remove the executors and trustees nominated therein, one O'Donohue was appointed receiver of the rents and profits of the real estate, freehold, and leasehold, and of the personal property of said testator. The tenants were directed to attorn to said receiver, and the executors to deliver to him all the estate, real, personal, and mixed, lately belonging to said McCunn. The receiver was authorized to lease the lands and tenements, ‘whereof he is hereby appointed receiver,’ and to pay the taxes, assessments, and other lawful charges to which the premises should, from time to time, be subject. January 19, 1877, by an order made in said action, and in another brought to declare void the devise of the real estate of said McCunn, and to partition the same, said O'Donohue was removed at his own request, and the defendant was appointed receiver in his place and stead, ‘to receive the rents and profits of the estate, freehold, and leasehold, * * * and to collect and get in the outstanding personal estate’ of said McCunn, with directions to tenants to attorn, etc. The order further provided that the defendant, as such receiver, should ‘have and possess the same powers, and be subject to the same duties and obligations,’ as were conferred or devolved upon his predecessor. The defendant, by his answer, denied that he became invested by said appointment with the title to the ‘real or leasehold estate,’ but he admitted that in May, 1879, he leased the premises in question to one Federlein, and also that he had ‘paid to the plaintiff the amount of the rent of the said premises to and including September 1, 1878.’ No rent was paid after the date last named, and on the 7th of November, 1879, summary proceedings were instituted to remove the defendant as tenant, and said Federlein as undertenant, from the possession of the premises, based on an affidavit alleging and a summons reciting that the defendant entered into possession and sublet, and that the defendant as tenant, and said Federlein as undertenant, had made default in the payment of the rent, and as such held over and continued in possession. No answering affidavit was filed, but on the 12th of November, 1879, as the record of the district court shows, the tenant and undertenant appeared by separate attorneys, and by consent judgment of dispossession was duly rendered ‘in favor of said landlord’ and against the ‘said tenant and all other persons.’ A warrant was issued on the 19th, and returned the same day by the marshal, with a certificate that he had put the landlord in full possession of the premises in question.

VANN, J., ( after stating the facts.)

The defendant contends that he is not liable in this action, because there was privity neither of contract nor estate between himself and the plaintiff. There was no privity of contract, but we think that the facts appearing in the foregoing statement conclusively show that the defendant was in possession of the premises in question, and, presumptively, that he was in possession from March 3, 1877, when his bond as receiver was filed. If he did not then take possession, it was incumbent on him to show it. He admitted that he was appointed receiver February 28, 1877, that he subsequently qualified, and that he paid ‘the amount of the rent * * * to and including September 1, 1878.’ This admission fairly involves the proposition that he paid the rent that fell due according to the terms of the lease...