Armstrong v. Cummings

Barrett, J.

The present injunction was granted on two grounds: First, that only the street and number, omitting the ward, was specified in the landlord’s affidavit; second, that furniture was included in the lease. At the outset, it is apparent that this question could and should properly have been raised by certiorari. The statute expressly forbids any court or officer, by any writ or order, from staying or suspending such proceedings. There is an exceedingly limited class of cases where, for fraud, surprise or undue advantage in the actual conduct of the proceedings, courts of equity have interfered. But the proceedings in the case at bar were entirely regular; the tenant had every proper opportunity of being heard, and the present action is simply an irregular attempt to review the rulings of the justice. It is insisted that the justice was without jurisdiction. If that were so, it should have been proved, as a matter of fact, that the premises were not situated in either the Nineteenth or the Twenty-second ward. The absence of an affirmative statement on that head in the landlord’s affidavit is no ground for what, in substance if not in form, is a writ of prohibition. Overruled objections to the preliminary affidavit can only be reviewed by certiorari.

Where, in truth, the subject-matter is not within the justice’s jurisdiction, that fact is the gramamen of the complaint, and should be affirmatively averred and established. It is proper however, to say that the courts will take judicial notice of the statutes creating these wards, and, doing so, we find the premises in question within their boundaries. What has been said upon the subject of jurisdiction applies equally to the point with regard to the furniture.

But we have no doubt of the correctness of the justice’s ruling. Kent, as defined by Boumer and other writers, is “A return or compensation for the possession of some corporeal inheritance, and is a profit issuing out of lands or tenements in return for their use ” (See, too, Hilliard on Real Property, 227; Co. Littleton, 141; G., 2 Black, 42, note 53, [ Wends, ed.] ).

The furniture was but an incident. As was said by Bocees, J., in Fay agt. Holloran (35 Barbour, 297), “ Kent cannot be reserved out of chattels personal. If such chattels are demised with land at an entire rent, the rent issues out of the land only ” (See, also, 2 Platt on Leases, p. 85; Archibald Land, and Tenant, marg. p. 106; Newman agt. Anderton, 2 Bosanquet da P.New R., 224).

In the latter case it was held that the landlord is entitled to distrain for the rent of ready-furnished lodgings, Mansfield, O. J., observing that “it must occur constantly that the value of demised premises is increased by the goods upon the premises, and yet the rent reserved still continues to issue out of the house or land, and not out of the goods, for rent cannot issue out of goods. So the lessor may declare on the demise of the land or the house without noticing the goods” (2 Platt on Leases, p. 85, and cases cited).

Were this otherwise, the statute would be perfectly valueless. If fully furnished houses are not within its provisions neither are the partially furnished. And so on; whenever the slightest element of personalty enters into the rental the statute becomes inapplicable, e. g., if gas-fixtures are included, or a portable heater, or portable wash-tubs. This contention proceeds upon the idea that where the rent of premises and the hiring of furniture are mingled, there can be no apportionment. The fallacy of this reasoning becomes apparent when we consider the legal quality of the rent, and the rule that it issues solely out of the land. There is, therefore, no question of apportionment, and, consequently, no such practical inconvenience as the plaintiff suggests.

Upon this latter branch of the case we have been assisted by, and have substantially followed and adopted, the manuscript opinion of Mr. justice MoAdam, in the ease of Swigley agt. Jones (filed in the marine court, November 2, 1878). If this opinion had been reported we would have contented ourselves with a simple reference to it.

The order appealed from should be reversed, with ten dol-' lars costs and disbursements of the appeal, and the injunction dissolved.

Davis, P. J., concurred.

The opinion filed in the marine court November 2, 1878, and referred to by judge Babbett, is as follows :