Opinion
Argued March 17, 1892
Decided April 26, 1892
Samuel Jones for appellant. Charles Edward Souther for respondent.
The defendant contends that he is not liable in this action because there was privity neither of contract nor estate between himself and the plaintiff. There was no privity of contract, but we think that the facts appearing in the foregoing statement conclusively show that the defendant was in possession of the premises in question and, presumptively, that he was in possession from March 3, 1877, when his bond as receiver was filed. If he did not then take possession, it was incumbent on him to show it. He admitted that he was appointed receiver February 28, 1877, that he subsequently qualified and that he paid "the amount of the rent * * * to and including September 1, 1878." This admission fairly involves the proposition that he paid the rent that fell due according to the terms of the lease from the time that he became receiver until the date named. Whether the defendant was appointed receiver of the real estate of which the restator died seized, or simply of the rents and profits thereof, is not here important, because he was appointed receiver of the personal estate and, according to the Revised Statutes, leases for years "go to the executors and administrators to be applied and distributed as part of the personal estate of the testator or intestate," and are required to be "included in the inventory thereof." (4 R.S. [8th ed.] p. 2556; Pugsley v. Aikin, 11 N.Y. 494.)
We think that the title to the demised term passed to and was vested in the defendant as receiver, and that he is, therefore, liable for the rent accruing from September 1, 1878, to and including September 1, 1879. ( Woodruff v. Erie R. Co., 93 N.Y. 609; Frank v. N.Y., L.E. W.R.R. Co., 122 id. 197.)
Upon the trial a tax bill was received in evidence for the taxes of 1876, 1877 and 1878, confirmed, respectively, September 14, 1876, October 9, 1877, and October 11, 1878. It also included the Croton water rent for 1876 and 1877, and was receipted by the proper officer as having been paid January 30, 1880. Another tax bill, which included the taxes of 1879, confirmed October seventeenth of that year and the Croton water charges for 1878, was also read in evidence. Both were objected to as irrelevant and immaterial, but neither as incompetent. Upon the close of the evidence, the counsel for defendant, after his motion to dismiss the complaint had been denied, asked the court to direct the jury that their verdict must be limited to the rent from May 1, 1879, to November 1, 1879, and to the taxes of 1879, with lawful interest upon each. This motion was denied, and thereupon the court was asked to limit the verdict to the rent from March 1, 1879, to November 19, 1879, and to the taxes for 1879, besides interest. The court denied this motion also, and directed a verdict for the plaintiff "for the sum of $858.57, being for taxes, $395.49; interest thereon, $123.55, together $519.04; and for rent, $250; interest thereon, $89.53; together, $339.53, to which direction counsel for the defendant duly excepted."
While we are asked to review none of these rulings, we have considered them in order to determine whether the defendant should be relieved from the payment of the taxes that accrued prior to his appointment as receiver. The objection to the tax bills was not to the competency of the evidence, but to its materiality, and, as all of one was material and a part of the other, the objection, as made, was properly overruled. If the defendant wished to exclude the taxes that became due before he was appointed receiver, his objection should have been more specific and addressed to that part of the first bill that embraced those items. The same criticism applies to the motions to limit the verdict, as neither time did he include all the rent that fell due, or the taxes that became payable, while he held the title to the lease and was in possession of the premises. The limitation applied for was too sweeping, and the application was properly denied for that reason.
The exception to the direction for a verdict was general and, if we have reasoned correctly thus far, was too broad, as it did not bring before the mind of the trial judge or of the opposing counsel the point that the amount included for taxes was too large, because it embraced items accruing prior to March 3, 1877. If the exception had been to so much of the direction as covered the old taxes, the point could have been understood and an opportunity would have been afforded for correction, if the court so desired, or the opposing counsel wished to consent to a modification. ( Sterrett v. Third Nat. Bank, 122 N.Y. 659, 662.)
Where a portion of a charge excepted to is correct in part and no qualification is suggested, a general exception cannot be sustained. ( Adams v. Irving Nat. Bank, 116 N.Y. 606; Smedis v. B. R.B.R.R. Co., 88 id. 13; Donovan v. Vandemark, 88 id. 668.)
So, as we think, after counsel have tried to limit a verdict about to be directed by insisting that it should be confined to rents accruing from March 1, 1879, and taxes for that year, when the plaintiff is entitled to recover rent from September 1, 1878, and taxes for 1878 and 1879, and the court, in directing a verdict, includes the taxes for 1876 and 1877, a general exception does not enable this court to decide that the taxes last named should not have been included. ( Tuers v. Tuers, 100 N.Y. 196.)
It is unnecessary, therefore, for us to decide whether the defendant is liable as the successor of O'Donohue upon the theory that the receivership was continuous.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.