Morrell a. Hey.

Application for a commission.

Judgment was recovered in this action by John H. Morrell against Eibe Hey, for $199.38. After the return of execution unsatisfied, an order for the examination of the defendant, in supplementary proceedings, was issued, and a reference ordered to take such examination. Pending the reference it became desirable for the plaintiff to take the testimony of a witness in Europe, in relation to the ownership of a fund of $663, which, it was claimed, was applicable to the payment of the judgment. The plaintiff applied at chambers for leave to issue a commission to take the testimony of such witness.

Cyrus Lawton, for the motion.

Mr. Fullen, opposed.

INGRAHAM, P. J.-The plaintiff moves for a commission to examine a witness in supplementary proceedings.

It is conceded that prior to amendment of the Code, in 1860, such a motion could not be granted.

I do not think the amendment of the Code, in section 399, alters that rule. That section, as amended, only applies to the examination of the witness, and extends to special proceedings the right to examine a party as in an action. It does not allow a commission to issue for such purpose. There is no other statute which makes such a commission proper. The Revised Statutes, under which commissions are issued, require issue to be joined.

The law as to commissions for the examination of witnesses, is not altered either by the amendments of 1860 or 1862. Motion denied.

The People on rel. Wilson a. Swayze.

THE PEOPLE on rel. WILSON a. SWAYZE.

Supreme Court, First District; General Term, February, 1863. LANDLORD AND TENANT.-NON-PAYMENT OF RENT.-SUMMARY PROCEEDINGS.-BREACH OF COVENANT TO PAY TAXES.

The failure of a tenant to pay the taxes which he has covenanted to pay as one of the conditions of his lease, in addition to the rent reserved, does not authorize summary proceedings to dispossess him as for non-payment of rent.

Certiorari to review summary proceedings by a landlord to dispossess his tenant.

In June, 1862, Caroline Swayze presented to the justice of a New York District Court an affidavit setting forth that one Eve Wilson was her tenant in respect to premises 149 Varickstreet, New York; that in 1807, Isaac Worden leased these premises to Samuel Helmes for fifty-six years by lease, in writing, at the yearly rent of $27.50; that in said lease, Helmes covenanted and agreed to pay and discharge all such lawful duties, taxes, and assessments as should, during the term, be laid, rated, assessed, or imposed by authority of the United States, by the Legislature of this State, or by the Corporation of the city of New York, upon the premises; that Helmes assigned to one William Lake died seized of said lease and premises; that Eve Lake was executrix of William Lake, and took possession of the premises under said lease and will, and subsequently intermarried with one Wilson, since deceased; that Eve Wilson still held the premises under the lease, but had failed to pay the taxes of 1857, and the four succeeding years.

The affidavit set forth that the executors of Isaac Worden duly assigned and transferred said premises and lease to Henry Ellsworth, who subsequently duly assigned and transferred said premises and lease to the present landlord.

Mrs. Wilson took various objections before the justice below,

The People on rel. Wilson a. Swayze.

which were overruled, and possession was awarded to the landlord.

Mrs. Wilson sued out the present certiorari to review that proceeding.

Albert Smith, for the relator.-I. The landlord must make out a plain case, and leave nothing to be inferred. (6 Hill, 314; 4 Den., 71–118; 5 N. Y., 388; 24 Barb., 438; 22 How. Pr., 183-186; 16 Ib., 449; 16 Barb., 474; 32 Ib., 540; 5 How. Pr., 95; 9 N. Y., 35; 15 Wend., 226; 9 Ib., 227; 1 Hill, 512; 8 Cow., 13.)

II. The relation of landlord and tenant is not sufficiently set forth. The estate could not have gone to the executors of Isaac Worden but to his heirs; so the conclusion is, that the respondent is not landlord by her own showing. The due appointment of the executors, and their power under the will, if they had any, should have been shown. (6 Hill, 314; 17 How. Pr., 197; 27 Barb., 337.)

III. It does not appear by the affidavit that the tenant was in arrears for rent. 1. The complaint is, that she had not paid taxes. 2. But taxes are not rent, and are not shown to have been reserved as rent, by the affidavit. 3. Rent, at common law, must be capable of being reduced to a certainty by either party. (3 Cruise Dig., 312.) 4. It does not appear how taxes were to be made rent, nor when they were to become due, and these very necessary connections of rent cannot be inferred. (See cases above cited.)

IV. If the affidavit was insufficient, the justice could not acquire jurisdiction either by a trial on the merits or by consent. (9 Johns., 239; 3 Cai., 129.)

Edwin R. Bogardus, for the respondent.

. CLERKE, J.-Without waiting to examine whether Swayze has shown that she stands in the relation of landlord to the relator, I do not think that she has sufficiently shown in her affidavit presented to the justice, that the relator had made any default in the payment of rent. She has only shown that the relator did not pay the taxes for several years. The lease provides for the payment of $27.50 per annum as rent; and in a VOL. XV.-28

Field a. Chapman.

separate provision, there is a covenant for the discharge of taxes, &c., by the lessee.

The second subdivision of section 28 of the act, allowing these summary proceedings (2 Rev. Stat., 513), applies only to cases of default in the payment of rent. It is clear that the covenant to pay taxes cannot be considered as part of the rent, because the taxes are not payable to the landlord, but to the public authorities; and the landlord could not make a legal demand of the taxes, as required by the statute, if the same were a part of the rent.

It also appears by the affidavit, that the landlord has paid the taxes, and thereby changed his demand against the tenant into a mere action of damages for breach of the covenant to pay the taxes;-if she has any remedy after such payment. Proceedings reversed with costs.

SUTHERLAND, P. J., and INGRAHAM, J., concurred.

FIELD a. CHAPMAN.

Supreme Court, First District; General Term, February, 1863.

JUDGMENT AGAINST JOINT-DEBTORS.-CREDITOR'S ACTION.— RETURN OF EXECUTION.

The right of the creditor of a copartnership is subordinate to the power of a partner to make a bona-fide disposition of the property before it is subjected to the creditor's lien.

Upon a judgment against joint-debtors, recovered in an action in which part only were served with summons, a creditor's action cannot be maintained to reach the separate property of those who were not served.

H. conveyed to C. in good faith all his interest in the copartnership property of H. & C.; subsequently C. transferred all the property to a third person.

Held, that a creditor's action to impeach the latter transfer as fraudulent, and to reach the property, could not be maintained under a judgment against H. & C., after service of summons upon H. only.*

Otherwise under section 294 of the Code, as amended in 1863. Compare Billhofer a. Heubach, 15 Ante, 143.

Field a. Chapman.

To sustain a creditor's suit, it is not requisite that the execution preliminary should have remained in the sheriff's hands sixty days before its return.

Appeals from orders dissolving injunctions.

These were two creditor's actions, the first brought by Alfred Field and others against Isaac L. Hunt, George M. Chapman, and Julia Ann Chapman, against the same defendants. The complaint in each action set forth that the plaintiff's had recovered judgment against Hunt and J. A. Chapman, partners under the firm-name of Isaac L. Hunt & Co., after service of the summons upon Hunt alone; that the judgments were upon demands against the partnership; that execution had been returned unsatisfied. That on the 10th day of March, 1860, the defendants Hunt and Julia Ann Chapman formed a copartnership, for the purpose of carrying on a wholesale hardware business in this city, under the firm-name of Isaac L. Hunt & Co. By the articles of copartnership (which were annexed to the complaint) Julia Ann Chapman alone was to contribute the entire capital of $40,000. The business was carried on until the 8th day of November, 1860, when Isaac L. Hunt executed and delivered to Julia Ann Chapman a bill of sale of that date (annexed to the complaint), whereby, for the consideration therein expressed, he sold and conveyed to her all his right, title, and interest in the partnership, and in and to the business, property, assets, credits, and effects thereof. It was not alleged in the complaint, nor was it claimed on the part of the plaintiffs, that this bill of sale was made with the intent to hinder, delay, or defraud creditors, or was or is fraudulent or void.

On the 10th of November, 1860, Julia Ann Chapman made and executed to the defendant George M. Chapman a bill of sale of that date, whereby she sold and conveyed to him the stock of goods in the store in Chambers-street, and other merchandise in New Jersey, which had been the property of the late copartnership, composed of Isaac L. Hunt and Julia Ann Chapman, and amounting in value to upwards of $40,000.

It was alleged in the complaint that this bill of sale from Julia Ann to George M. Chapman was made with the intent to hinder, delay, and defraud the plaintiffs and other creditors of