15 N.Y. 374, Despard v. Walbridge

Citation:15 N.Y. 374
Party Name:DESPARD v. WALBRIDGE.
Case Date:June 01, 1857
Court:New York Court of Appeals

Page 374

15 N.Y. 374

DESPARD

v.

WALBRIDGE.

New York Court of Appeal

June 1, 1857

Page 375

COUNSEL

A. J. Parker, for the appellant.

A. P. Laning, for the respondent.

SELDEN, J.

It is insisted that the referee was wrong in overruling the motion for a nonsuit, for the reason that no privity of contract between the parties was shown, but a

Page 376

privity of estate only. Had the defendant gone into possession as a trespasser, this position might be correct. But he was in as a sub-tenant under the Sherwood lease. The plaintiff, being the owner of the residue of the term created by that lease (as for the purposes of this question we must assume), gives notice of his rights to the defendant, and states the terms on which the expired lease of the latter may be renewed. Here is something more than a mere privity of estate, viz: a direct proposition from the owner of the reversion to the tenant in possession for a renewal of his lease, and this proposition is met by a continued occupation without other reply. This, I think, laid the foundation for an implied contract. It was in law, a virtual assent to the terms prescribed in the notice. The referee was right, therefore, in overruling the motion for a nonsuit.

The next exception is that taken to the rejection of the offer to prove by Howard that the proposition of the witness Morse, to take the premises at a rent of $1200, was upon condition that certain improvements should be made to suit the business of Morse. If the referee was right in assuming as the basis of the recovery, the fair annual value of the premises, then this exception must be regarded as well taken. But it is clear, that if the defendant is liable at all, he is liable to pay at the rate of $1500, according to the terms of the plaintiff's notice. All the evidence, therefore, on the subject of value was immaterial. The fact that some immaterial evidence was admitted, by means of which the recovery against him was reduced, does not entitle the defendant to complain that other evidence, equally immaterial, which might have reduced it still more, was not admitted.

The principal question is that which arises upon the exception stated in the referee's report. It is set forth in the answer, in substance, that the assignment of the Sherwood lease from Ritchie to the plaintiff, was made at the request and for the benefit of Codd, and for the sole purpose of aiding the latter in the collection of his debt against

Page 377

Sherwood. It is also stated that this debt had been fully paid before May 1st, 1851, by Hiram E. Howard, who had succeeded to the rights of Sherwood in the premises, and that Ritchie, on the 1st of May, 1851, surrendered all his rights in the premises to Howard, whose tenant the defendant then became. These facts the defendant offered to prove and his offer was rejected. The referee has not stated in his report, the reasons for the exclusion of the evidence; but the Supreme Court at general term appears to have held that it was properly excluded, upon the ground that the defendant, having entered under the lease from Sherwood to Ritchie, was estopped from denying the plaintiff's rights under that lease.

This, I apprehend, was a misapplication of the doctrine that a tenant is precluded from...

To continue reading

FREE SIGN UP
98 practice notes
  • 36 Cal. 28, Jackson v. Lodge
    • United States
    • California Supreme Court of California
    • October 1, 1868
    ...in equity in New York, since the adoption of the Code, is expressly stated and adopted in the still later case of Despard v. Walbridge, 15 N.Y. 374. This was an action at law against a sub-tenant to recover rent. The plaintiff claimed under an assignment of the term of the first lessee, abs......
  • 199 N.Y. 405, Lyons Nat. Bank v. Shuler
    • United States
    • New York New York Court of Appeals
    • October 28, 1910
    ...N.Y. 58.) Equitable questions may be determined in a partition action. (N.Y. C. Ins. Co. v. N. Ins. Co., 14 N.Y. 85; Despard v. Walbridge, 15 N.Y. 374; Phillips v. Gorham, 17 N.Y. 270; Cole v. Reynolds, 18 N.Y. 74; Burget v. Bissell, 5 How. Pr. 192; Dobson v. Pearce, 12 N.Y. 156; Hunt v. F.......
  • 239 N.Y. 285, Susquehanna Steamship Co., Inc. v. A.O. Andersen & Co., Inc.
    • United States
    • New York New York Court of Appeals
    • January 21, 1925
    ...MacCormick, 121 A.D. 569; Sullivan v. Traders' Ins. Co., 169 N.Y. 213; Bennett v. Edison El. Ill. Co., 18 A.D. 410; Despard v. Walbridge, 15 N.Y. 374; N.Y. Central Ins. Co. v. Nat. Protection Ins. Co., 14 N.Y. 85; Seeley v. Engel, 13 N.Y. 542.) Nathan L. Miller and Alvin C. Cass for respond......
  • 30 Misc.2d 152, Ungar v. Schwartz
    • United States
    • April 11, 1961
    ...53 N.Y.S.2d 125; Kaufman v. Bartels, 182 Misc. 128, 50 N.Y.S.2d 568, appeal denied 268 A.D. 864, 51 N.Y.S.2d 88; Despard v. Walbridge, 15 N.Y. 374; Levin v. Rosenkrantz, Mun.Ct., 86 N.Y.S.2d 271. The 'reasonable' notice is often referred to as a 'thirty day' notice, perhaps because of the t......
  • Free signup to view additional results
98 cases
  • 36 Cal. 28, Jackson v. Lodge
    • United States
    • California Supreme Court of California
    • October 1, 1868
    ...in equity in New York, since the adoption of the Code, is expressly stated and adopted in the still later case of Despard v. Walbridge, 15 N.Y. 374. This was an action at law against a sub-tenant to recover rent. The plaintiff claimed under an assignment of the term of the first lessee, abs......
  • 199 N.Y. 405, Lyons Nat. Bank v. Shuler
    • United States
    • New York New York Court of Appeals
    • October 28, 1910
    ...N.Y. 58.) Equitable questions may be determined in a partition action. (N.Y. C. Ins. Co. v. N. Ins. Co., 14 N.Y. 85; Despard v. Walbridge, 15 N.Y. 374; Phillips v. Gorham, 17 N.Y. 270; Cole v. Reynolds, 18 N.Y. 74; Burget v. Bissell, 5 How. Pr. 192; Dobson v. Pearce, 12 N.Y. 156; Hunt v. F.......
  • 239 N.Y. 285, Susquehanna Steamship Co., Inc. v. A.O. Andersen & Co., Inc.
    • United States
    • New York New York Court of Appeals
    • January 21, 1925
    ...MacCormick, 121 A.D. 569; Sullivan v. Traders' Ins. Co., 169 N.Y. 213; Bennett v. Edison El. Ill. Co., 18 A.D. 410; Despard v. Walbridge, 15 N.Y. 374; N.Y. Central Ins. Co. v. Nat. Protection Ins. Co., 14 N.Y. 85; Seeley v. Engel, 13 N.Y. 542.) Nathan L. Miller and Alvin C. Cass for respond......
  • 30 Misc.2d 152, Ungar v. Schwartz
    • United States
    • April 11, 1961
    ...53 N.Y.S.2d 125; Kaufman v. Bartels, 182 Misc. 128, 50 N.Y.S.2d 568, appeal denied 268 A.D. 864, 51 N.Y.S.2d 88; Despard v. Walbridge, 15 N.Y. 374; Levin v. Rosenkrantz, Mun.Ct., 86 N.Y.S.2d 271. The 'reasonable' notice is often referred to as a 'thirty day' notice, perhaps because of the t......
  • Free signup to view additional results