Willis v. Mckinnon

• Citation: 178 N.Y. 451,70 N.E. 962
• Parties: WILLIS v. McKINNON et al.
• Decision Date: 17 May 1904
• Court: New York Court of Appeals

178 N.Y. 451

70 N.E. 962

WILLIS

v.McKINNON et al.

Court of Appeals of New York.

May 17, 1904.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by John C. Willis against Frank H. McKinnon and another. From a judgment of the Appellate Division of the Supreme Court (79 N. Y. Supp. 936) affirming a judgment for plaintiff entered on a decision of the court at a Trial Term, defendants appeal. Affirmed.

James R. Baumes and William H. Johnson, for appellants.

Charles L. Andrus and John C. Willis, for respondent.

MARTIN, J.

We are of the opinion that this appeal cannot be sustained. The action was to recover the possession of real property, and damages for wrongfully withholding the same. While numerous questions are presented and were discussed upon the argument and in the briefs of counsel, we are satisfied they were properly disposed of by the court below, and that but a single question need be considered by this court, which relates to the damages the plaintiff was allowed for the wrongful withholding of the property. Upon that question there was a division of opinion in the court below. The majority held that the plaintiff was entitled to recover for six years before the commencement of the action, and also during its pendency, while the minority was of the opinion that he was entitled to recover for the period of six years only, with interest until the termination of the action. We agree with the opinion of the majority in that respect. Indeed, we should affirm the judgment without opinion, but for the fact that the question as to the length of time for which a plaintiff in such an action is entitled to recover damages has never been clearly and distinctly settled by this court. Thus the sole question to be determined is whether the plaintiff was entitled to recover damages for wrongfully withholding the property in suit for six years before the commencement of the action, and also for the time that elapsed after and before the final trial and judgment, or whether the period for which such a recovery could be had is absolutely limited to six years.

Although, under the various statutes relating to the subject which have previously existed in this state, different rules seem to have been applied, and the decisions under such statutes have been inharmonious, yet we do not think it would be profitable to review or attempt to harmonize them, as it is manifest that some at least are in direct conflict. The existing statutes relating to this subject are now contained in the Code of Civil Procedure. By sections 1496 and 1497 it is provided that in an action to recover real property, or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for withholding the property, which include the rents and profits, or the value of the use and occupation thereof. Thus, under these provisions, the right to recover damages for withholding the property may be made a part of the original complaint in an action to recover real property, so that, when commenced, the action is not only to recover possession of real property, but also to recover damages for withholding it. Such was not the case under previous statutes, where a judgment for ejectment must precede either an action of trespass to recover the damages for withholding the possession, or a suggestion to recover damages therefor. Under those statutes the right of action for damages arose subsequently to a judgment for the recovery of the property, and could be enforced either by an action or by a suggestion under which a trial of that question might be had. Thus, under the previous statutes and the procedure provided therein, it is obvious that no action or proceeding for damages could be said to have been commenced or to be pending until the termination of the action for the possession of the property, and hence the situation was the same as it would be in an action to recover damages for withholding the possession commenced after the determination of the action of ejectment. When the Legislature provided that a claim for damages could be enforced in and as a part of an action of ejectment, and that such claim might form a part of the relief demanded in the original complaint, it enabled a party to join what had hitherto been separate rights of action, one accruing after the determination of the other. Under these provisions it became quite evident that the Legislature intended to provide what might be recovered as of the time when the action was commenced, namely, the possession of the real property, and also existing damages for withholding the same.

But it is insisted that section 1531 of the Code of Civil Procedure limits the right to recover damages for withholding the property to a term not exceeding six years. That section, so far as material, is: ‘In an action, brought as prescribed in this article, the plaintiff, where he recovers judgment for the property, or possession of the property, is entitled to recover, as damages, the rents and profits, or the value of the use and occupation, of the real property recovered, for a term not exceeding six years.’ Was it the purpose of that section to absolutely limit the right of recovery for damages for withholding real property to the period of six years, without regard to the time when the final judgment was rendered? We think not. It seems but reasonable to suppose that the intention of the Legislature was that that period of limitation should apply only to the cause of action, set up in the plaintiff's complaint, existing at the commencement of the action; that it related directly to the recovery which might be had under the complaint as of the time the action was commenced, and that it has no application to such damages for use and occupation as might accrue subsequently to the commencement of the action and before the final determination thereof. It may be observed in this connection that ordinarily, at least, the various statutes of limitation relate to a time before commencement of action, and we can discover no reason to believe that a different time was intended by the provisions...