Goelet a. Ross.

GOELET a. ROSS.

New York Superior Court; General Term, Oct., 1862.

LANDLORD AND TENANT.-SURRENDER.-EVIDENCE-STATUTE OF

FRAUDS.

Proof of an oral declaration by a landlord, that on payment of rent to a particular date he would release the tenant from further liability, accompanied by proof of payment of such rent, is not sufficient evidence of the surrender of premises held under a written lease.

Where a verdict in favor of one of the parties would be set aside as against evidence, it is the duty of the judge to direct a verdict in favor of the adverse party. His refusal to do so is error.

Appeal from a judgment.

This action was brought to recover two years' rent, under a lease, of a stone-yard, in New York city, for three years from May 1st, 1857. The lease was in writing, signed by the respective parties, but not under seal. The defendants occupied the premises, and paid rent till May 1st, 1858.

The principal defence was a surrender and acceptance prior to May 1st, 1858.

On the trial of the cause before Justice Robertson and a jury, the evidence showed the non-payment of the amount claimed; that no release or surrender in writing had ever been executed; that the premises were left by the defendants May 1st, 1858; and that the plaintiff never took formal possession of them until after the expiration of the lease in 1860. The defendants sought to show, by parol evidence of conversations between the parties prior to May 1st, 1858, that the plaintiff agreed, on payment to him of the rent up to that time, that he would release the defendants from further payment of rent, and from all their obligations under the lease, they to surrender and quit the premises; and that they had acted accordingly. On the testimony being closed, the court directed the jury to find a verdict for the amount claimed, with interest. Judg

Goelet a. Ross.

ment was subsequently entered thereon, and the defendants appealed to the general term.

Dudley Field, for the appellants.-I. The court erred in refusing to submit the case to the jury, in declining to charge, and in directing a verdict for the plaintiff.

II. There was sufficient evidence of an intention to discharge the defendants from further obligation to pay rent to go to the jury. 1. The conversations with the plaintiff amounted to an agreement, their part of which they duly performed. 2. The evidence showed that the plaintiff assented to the agreement, and acted on it. 3. As matter of law, a lessee may be discharged from the payment of rent, otherwise than by a written agreement cancelling the lease; and, therefore, the jury should have been permitted to pass on the evidence. (Wool a. Walbridge, 19 Barb., 136; Hegeman a. McArthur, 1 E. D. Smith, 147; Benson a. Bolles, 8 Wend., 175; Gore a. Wright, 8 Ad. & El., 118; Germane a. Legge, 8 B. & Cress., 324; Dodd a. Acklom, 6 Man. & Gr., 672; Randall a. Rich, 11 Mass., 494; Academy of Music a. Hackett, 2 Hilt., 217; Stanley a. Koehler, 1 Ib., 354.)

Elbridge T. Gerry, for the respondent.-I. The defence of a surrender of the lease, prior to its expiration by its own limitation, was not sustained by any evidence which would have justified the court in sending the case to the jury. 1. Prior to the Statute of Frauds, and at common law, a lease for a term of years might be effectually surrendered by parol. (2 Shepp. Touch., 300, 305-7; 2 Bl. Com., 318, note.) 2. But the design of that statute was to prevent any informal, premature determination of the interest of lessees. And the revisors, on its reenactment in this State, curtailed its limits, to render them, if possible, more stringent. (Stat. 29 Car. II., cap. 3, §§ 1-3; Crabb's Eng. Law, ed. of 1829, 514; 2 Rev. Stat., 134, § 6; 3 Ib., 5 ed., 220; Browne on Stat. of Frauds, §§ 41, 45-6, and cases cited; Thompson a. Wilson, 2 Stark., 377; Rowan a. Lytle, 11 Wend., 616; Ogden a. Sanderson, 3 E. D. Smith, 166.) 3. Admitting the conversation and agreement with the respondent as claimed, they did not amount to a surrender "by act and operation of law." These words do not refer to a mere parol

Goelet a. Ross.

surrender; and the interests of these lessees thus sought to be disposed of, being for more than one year of the unexpired term, the case of Smith a. Devlin does not apply. (Mayberry a. Johnson, 3 Greene (N. J.), 116; Lyon a. Reed, 13 Mees. & Wels., 285; approved in Creagh a. Blood, 3 Jones & Latouche, 161; Schieffelin a. Carpenter, 15 Wend., 400; Lammott a. Gist, 2 Har. & Gil., 433; Smith a. Devlin, 23 N. Y., 363; affirming S. C., 6 Bosw., 1.)

II. There was no proof of any re-entry by the plaintiff, and no change of possession prior to the expiration of the lease in 1860. Change of possession is essential to a verbal surrender, and mere abandonment, by a tenant, of the premises during the term, does not, in the absence of entry by the landlord, create a surrender, nor bar an action for the entire rent. (Schnisler a. Ames, 16 Ala., 73, 76, 77; Johnston a. Huddlestone, 4 B. & C., 922, 939; S. C., McClell & Younge, 141; Mollet a. Brayne, 2 Campb. N. P., 103; Cannan a. Hartley, 9 Com. Bench, 634.)

III. So, there was no evidence to go to the jury, and the court properly directed a verdict for the plaintiff.

BY THE COURT.*-MONCRIEF, J.-The counsel for the appellants, upon the argument of this appeal, conceded that the sole question arising therein is, "Is the weight of evidence against the direction by the learned judge to find a verdict against the defendants?" and he was understood to waive all other questions and exceptions. In other words, his proposition was: "In case the evidence had been submitted to the jury, who had found for the defendant, would such verdict be set aside?" A very careful examination of the testimony in the case has not enabled me to discover evidence upon which a verdict for the defendant could have been sustained. (2 Smith's Lead. Cas., 459, a, b, c.) The learned judge, therefore, correctly directed a verdict in favor of the plaintiff. It would have been error to have refused to do so. (Steves a. Oswego & Syracuse R. R. Co., 18 N. Y., 422.)

The judgment must be affirmed.

* Present, MONCRIEF, ROBERTSON, and MONELL, JJ.

Vosburgh a. Huntington.

VOSBURGH a. HUNTINGTON.

Supreme Court, First District; At Chambers, Nov., 1862.

ESTOPPEL IN PAIS.-INTERPLEADER.-BAILEE OR AGENT.-DEPOSIT IN COURT.-CLAIM AND DELIVERY.

Section 122 of the Code introduces no new cases of interpleader: it merely provides a summary mode of relief, which is limited to the same cases in which a bill of interpleader was allowed in chancery.

A bailee or agent cannot dispute the original title of the bailor or principal from whom he has received property.

Hence, such bailee or agent is not entitled, in respect to property intrusted to him, to an interpleader to settle the conflicting claims of the bailor or principal and a stranger who claims the property by a distinct and independent title. In an action to recover specific personal property, it is a sufficient answer to an application for an interpleader that the defendant is not in a position to deposit the property in court.

So held, in an action to recover firkins of butter, where the property had been taken by the plaintiff, by the provisional remedy of claim and delivery, and the defendant had waived his right to re-delivery.

Motion for an interpleader.

This action was originally brought by Abram S. Vosburgh, and continued by John S. Vosburgh, administrator, against Charles R. Huntington, Charles E. Leveridge, and Nathaniel P. Jacobs, to obtain the delivery of two hundred and four firkins of butter, valued at $760. The butter was delivered to the plaintiff at the commencement of the action under proceedings of claim and delivery. The defendants applied to have one Marcus Ball, who claimed the property in question, substituted as defendant. The nature of Ball's claim, and of the proceedings had on the motion, are stated in the opinion.

Norman Stratton, for the motion.-I. The giving of the storage receipt did not determine the ownership of the property. It amounted to nothing more than a simple recital of the declaration of Bidwell to the defendants in that regard. It is not conclusive evidence of title.

Vosburgh a. Huntington.

II. The defendants are entitled, upon bringing the property into court (as they have now virtually done), to have the claimant substituted as defendant in their place. It cannot make any difference whatever with the plaintiff as to with whom he litigates the question of the title to the property, if, as he claims, he is the bona-fide owner thereof.

III. It appearing as an undisputed fact that Bidwell never had any title to the property, except that derived through the storage receipt, and which was received by him in bad faith, and also that Ball, the claimant, was the bona-fide owner down to the very day of the transfer of the storage receipt by Bidwell, it ought, therefore, to result, as a matter of simple equity, in the claimant being permitted to follow his property and ascertain by what right its possessor claims title thereto. To deny the claimant this right would result in allowing the plaintiff to take and keep the property, without inquiry as to the manner or right of his possession.

IV. Prior to the provisions of § 122 of the Code, it seems to have become well settled that a party in danger of being doubly vexed (as these defendants are) by adverse claimants to the possession of specific real or personal property, held by such party, might always resort to a bill of interpleader. (Yates a. Tisdale, 3 Edw., 74; Martinus a. Helworth, 2 Ves. & B., 412.)

V. The Code (§ 122) simplifies the former remedy by permitting a motion for that purpose in place of the former action. Under its provisions, a defendant is entitled to a substitution when he shows that he holds the property for the true owner, and has no interest as to the question as to whom it belongs, and that there is nothing else to be litigated except the right of the different claimants to such property; and upon thus showing, the defendant should be discharged, and the claimant, the real party in interest, substituted as defendant. (Van Buskirk a. Roy, 8 How. Pr., 425; Fletcher a. Troy Savings Bank, 14 Ib., 383; Winfield a. Bacon, 24 Barb., 154.)

Richard Winne, opposed.-I. The granting of this application is entirely in the discretion of the court. (Code, § 122, last clause.)

II. The Code requires that the defendant shall deposit in court the amount of the debt, or deliver the property or its