Hosford v. Ballard

By the Court, Miller, J. The agreement between the landlord and tenant, in this case, provides that if the yearly rent is not paid at the time appointed, it shall be lawful for the grantor, his heirs and assigns, to re-enter upon the premises, and the same to have again, retain, repossess and enjoy. The plaintiff could, therefore, only sustain his. action of ejectment: First. By proof of a formal demand of the exact amount of rent due, at the particular place at which it was payable,, on the very day it fell due.. (Van Rensselaer agt. Jewett, 5 Denio, 13 ; 2 Comst., 147.) Second. By the remedy provided by the Revised Statutes in certain cases. (2 R. S., 1st ed. p. 505, $ 30.) [166] The plaintiff does not claim that he did sustain his action at common law. The defendant claims that be did not sustain the action under the statute, because he failed to prove a want of sufficient distress on the premises, or a notice of fifteen days in lieu thereof under the third section of chapter 274 of the laws of 1846. The section of the Eevised Statutes before cited', provides that whenever any half year’s rent, or more, shall be in arrear, from any tenant to his landlord, and no sufficient distress can be found on the premises to satisfy the rent due, if the landlord has a subsisting right to re-enter for. the non-payment of such rent, he may bring an action of ejectment for the recovery of the possession of the demised premises; and the service of the declaration shall be deemed, and stand, instead of a demand of the rent in arerar, and of a re-entry on the demised premises. The act of 1846, abolished the remedy of distress for rent, and the third section of that act provided : That whenever a right of re-entry was reserved to a grantor in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of any rent due, such a re-entry might be made at any time after default in the payment of such rent, provided fifteen days’ notice in writing should be given, notwithstanding there might be a sufficiency of goods on the lands demised &c. This section was clearly intended to apply to cases where the right of re-entry under the grant or lease was in default of sufficient goods and chattels whereon to distrain for'the rent. The fifteen days’ notice was intended as a substitute for the right to distrain in cases 'where there was a sufficient distress on'the premises. v As this was not the case provided for by the -act of 1846, no notice of fifteen days was necessary to maintain the action, nor would such a notice have been of any avail. The plaintiff, not being entitled to recover at common law, the question arises whether the action could be main [167] tained under the section of the Revised Statutes, before referred to. I think this depends upon the effect of the act of 1846, upon this provision of the statute. The act of 1846, does not, in so many words amend or alter the Revised Statutes; but it abolishes the right of distress absolutely and expressly. It would, therefore, appear to leave the statute in force in every other respect. If this were an original question, I should entertain great doubts whether the abolition of distress for rent of itself, establishes that no sufficient distress can be found on the premises to satisfy the rent due. The leases which contain a clause that in default the lessor might distrain, and should there be no sufficient distress, the lessor might re-enter, are clearly intended to provide for cases where sufficient property could not be found on the premises to pay the rent. The provisions of the Revised Statutes were designed to provide the remedy of ejectment only in such cases, and for the reason that the rent could not be collected. The act of 1846 did not change the common law remedy, but only provided an additional remedy in certain cases. (Williams agt. Potter, 2 Barb., 316 ; The Mayor &c. agt. Campbell, 18 Id., 156.) It would, therefore, seem somewhat doubtful whether the legislature intended to give a remedy by ejectment under the Revised Statutes, without a demand, when there was property on the premises out of which the rent could have been realized. The point, however, was considered and'decided otherwise, in the case of Van Rensselaer agt. Snyder, 3 Kern., 299. Gardiner C. J., in defining what is meant by the terms “ sufficient distress,” used in the Revised Statutes, says: ‘‘ The terms ‘sufficient distress,’ in the grant, are not equivalent for sufficient property to satisfy the rent, they refer to property not only sufficient in kind and value for the purpose, but which, in addition, is subject by law to be distrained and sold in satisfaction of the rent in arrears. They include the idea of an existing legal remedy as well as [168] property subject to it.” Again, “ The' tenant might have any considerable amount of property upon the premises, but-he could not, after the passage of the act, have a sufficient distress.” He also says: “In a failure in this particular ((a sufficient distress’) the landlord could proceed at common law, or under the statute (2 R. S., 579). Then came the law of 1846. The right to distrain .was abolished. There coqld be no sufficient distress upon or off the premises.” Although, in that case, the. clause of re-entry was upon condition that no sufficient distress could be found upon the premises, .yet the question now discussed was distinctly presented and decided,' and whatever doubts may be entertained, must yield to the express adjudication of a higher tribunal. It must, therefore, be considered as res judicata. I am inclined to think that the other questions raised are covered by the decisions of this court, in Main agt. Green, (52 Barb. 485.) Hew trial denied with costs.