Misc.]

Supreme Court, Appellate Term, February, 1899.

The liability of the defendant depends on the fact, whether or not it took possession of the demised premises under the assign

ment.

The transfer of the lease was by way of mortgage, and the defendant under it became the mortgagee of the term.

To render the assignee of the lease liable for the rent to the lessor the entire term must be transferred to him. Van Rensselaer v. Gallup, 5 Denio, 460; Davis v. Morris, 36 N. Y. 569. But where the assignment is conditional, or not for the entire term, and the assignee or mortgagee does not go into possession, no such liability arises. The early case of Astor v. Hoyt, 5 Wend. 603, follows the rule announced by Lord Mansfield in Eaton v. Jaques, Doug. 454, to the effect that a mortgagee of the lessee of a term never having taken possession under the mortgage, is not liable as assignee, for rent in arrear. This rule has been uniformly followed in this state. Walton v. Cronly, 14 Wend. 63; Damainville v. Mann, 32 N. Y. 197; Tallman v. Bresler, 65 Barb. 369; S. C., 56 N. Y. 635.

"The mortgagee of a term, who has never taken possession, is not an assignee for the whole term, or liable for rent in arrear; the mortgage being but a security, and the legal estate still remaining in the mortgagor." Tallman v. Bresler, 65 Barb. 369. The naked right which the mortgagee has and the beneficial enjoyment of the premises are distinguishable (Damainville v. Mann, 32 N. Y. 207), and it is only when a mortgagee takes possession that he has the estate cum onere, and becomes liable as assignee upon the covenants contained in the lease. Eaton v. Jaques, Doug. 454.

In the case at bar the assignment of the lease was expressly stated to be made "as collateral security" for the payment of the loan made by the defendant to Silverman. The plaintiff to recover must, therefore, show that the defendant entered into actual possession of the premises. The record is devoid of evidence in that behalf. The plaintiff invokes the admission of the defendant that at the time of trial, it was in possession of the keys of the store and basement in question, to sustain the plea of its occupation of those premises. No such presumption, however, arises under the circumstances disclosed. The keys were sent to the defendant unsolicited and their return was forthwith tendered to the plaintiff; whose refusal to accept, left them in the defendant's hands against its protest.

While a tenancy may be implied from the taking of a key of premises for the purpose of occupying them (Little v. Martin, 3

Supreme Court, Appellate Term, February, 1899.

[Vol. 26.

Wend. 219), the mere receipt of the key raises no presumption of tenancy. Townsend v. Albers, 3 E. D. Smith, 560.

There being, therefore, no evidence of possession, the judgment must be reversed.

FREEDMAN, P. J., and MACLEAN, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

LUIGI PASCOCELLO, Respondent, v. THE BROOKLYN HEIGHTS RAILROAD Co., Appellant.

(Supreme Court, Appellate Term, February, 1899.)

Appellate Term Interlocutory orders are not appealable.

An order denying a motion to transfer a case in the Municipal Court of New York from the borough of Manhattan to the first district of the borough of Brooklyn, the residence of the defendant, is an interlocutory order, is not enumerated in section 1 of chapter 748 of the Laws of 1896, and is, therefore, not appealable to the Appellate Term.

MOTION to dismiss an appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, for the second district, denying a motion to transfer this cause.

Morris Cukor, for motion.

George M. Curtis, Jr., opposed.

LEVENTRITT, J. The plaintiff instituted this action in the Municipal Court of the city of New York, borough of Manhattan, for the second district, to recover from the defendant corporation damages for personal injuries.

At the time of the commencement of the action the plaintiff was and he has since continued to be a resident in that district. The defendant, claiming to transact its general business within the borough of Brooklyn, and having no agency or office for that purpose in the borough of Manhattan, made a motion to transfer the cause to the first district of the borough of Brooklyn. From the order made upon the denial of that motion the defendant has taken an appeal, which the plaintiff moves to dismiss upon the ground that this court has no jurisdiction to entertain it.

Misc.]

Supreme Court, Appellate Term, February, 1899.

The order sought to be reviewed is an interlocutory order. The jurisdiction of this Appellate Term over appeals from Municipal Courts exists solely by force of statute. Sinsheimer v. N. Y. C. & H. R. R. R. Co., 21 Misc. Rep. 45.

It is provided by section 1367 of the charter, creating those courts, that: "An appeal from a judgment rendered in the municipal court of The City of New York, may be taken to the supreme court in the cases and in the manner prescribed in articles first and second of title 8 of chapter 19 of the code of civil procedure."

Those provisions of the Code applied to appeals from the District Court and are now, by section 1367 of the charter, made applicable to appeals from the Municipal Court. They did not permit appeals from any orders of the District Court. Wensley v. Randolph, 9 Misc. Rep. 457; Nicholson v. Moriarty, 13 id. 244.

It required, therefore, special statutory enactment to invest the appellate court with power to review appeals from orders.

The Laws of 1896, chap. 748, conferred authority upon the appellate tribunal to entertain appeals from certain specified orders of the District Court. This court has only the same limited jurisdiction with respect to orders of the Municipal Court.

By section 1 of that chapter it is provided that: "An order of a justice opening a default and setting aside, vacating or modifying a judgment entered thereon, or an order setting aside the verdict of a jury and vacating or modifying a judgment entered thereon, or an order vacating or modifying a judgment rendered by a justice without a jury, shall recite and contain the grounds for the order, and from the order an appeal shall lie as from a judgment in said court."

The orders enumerated are the only ones appealable and are limited to such as are subsequent to trial or judgment.

The order under consideration is interlocutory, made before trial and cannot be reviewed in this court. Robb v. Osgoody, 20 Misc. Rep. 622; Sinsheimer v. N. Y. C. & H. R. R. R. Co., 21 id. 45; Rosenthal v. Grouse, 12 Daly, 532; Kraetzer v. Thomas, 23 Misc. Rep. 329.

The motion to dismiss the appeal must be granted.

Motion to dismiss granted, with $10 costs to the respondent.

FREEDMAN, P. J., and MACLEAN, J., concur.

Appeal dismissed, with $10 costs to respondent.

Supreme Court, Appellate Term, February, 1899.

[Vol. 26.

MORRIS SPIEGEL, Respondent, v. THE PACIFIC MAIL STEAMSHIP Co.,

Appellant.

(Supreme Court, Appellate Term, February, 1899.)

Pledge of a bill of lading by consignee Carrier must notify him that the consignor has taken the goods by legal process.

A carrier, whose bill of lading has been pledged by the consignee for a loan with authority to the pledgee, in case of default, to apply the goods themselves towards payment, cannot lawfully thereafter surrender the goods to the sheriff, on a requisition in replevin from the consignor, without giving any notice of the process to either consignee or pledgee, and, if it does so surrender them, cannot escape paying their value to the pledgee, to whom the consignee has defaulted, upon mere proof that the goods were taken from its possession by virtue of legal process.

APPEAL from a judgment rendered in the Municipal Court, in the city of New York, borough of Manhattan, first district, in favor of the plaintiff.

Clifford Seasongood, for appellant.

Abraham I. Elkus, for respondent.

LEVENTRITT, J. On the 14th day of April, 1892, one John Crellin shipped, on a steamer of the defendant company, ten barrels of brandy to the firm of Saitta & Co., of New York city, and the defendant thereupon issued its bill of lading in the usual form, conditioned for the delivery of the brandy to Saitta & Co., or to their assigns, upon the payment of the freight charges.

On the 3d day of May, 1892, Saitta & Co., the consignees, obtained a loan in the sum of $1,300 from the plaintiff and thereupon, having indorsed in blank, deposited with him, as collateral security for the repayment of said loan, certain bills of lading, including the one in question; and at the same time executed and delivered to the plaintiff an agreement providing in the event of default, for the application by the plaintiff of the brandy to the repayment of the loan.

Saitta & Co., having failed to meet their obligation as agreed, the plaintiff between the 6th and 8th days of July, 1892, tendered

Misc.]

Supreme Court, Appellate Term, February, 1899.

to the defendant the agreed amount of freight charges and demanded the delivery to him of the brandy. The defendant having refused to comply, the plaintiff on the 1st day of July, 1898, instituted this action to recover the value of the brandy.

To the plaintiff's complaint the defendant orally pleaded a general denial, the Statute of Limitations and res adjudicata. To sustain its contention, the defendant offered evidence of the surrender by it, in the month of May, 1892, of the brandy in controversy to the sheriff of the city and county of New York in obedience to a requisition issued to him in an action of replevin, brought against the defendant by the shipper John Crellin; and to sustain its contention in that behalf submitted the affidavit, requisition and return in that action. It appeared that the defendant had yielded to the writ and that the sheriff had on the 27th day of May, 1892, delivered the brandy to John Crellin.

At the close of the trial, the defendant insisted that having delivered the property under the compulsion of legal process it was exonerated from liability to the plaintiff, and, further, that more than six years having elapsed since the plaintiff's cause of action accrued, the Statute of Limitations applied.

The contention of the defendant, that its compulsory submission to the replevin process relieved it from all responsibility. gives rise to the main question to be determined upon this appeal. While it is well established, that the defense of jus tertii is available to a common carrier, it is equally well settled that the carrier does not discharge his obligation to the consignee, with whom he has made the contract, by simple delivery to the officer, or by standing idly by until the process has impounded the goods and through it the adverse claimant has appropriated them by the judgment of the court. Robinson v. Memphis & C. R. Co., 16 Fed. Repr. 57. It has been intimated that the carrier must defend the title of his bailor against adverse claims — or what is equivalent, surrender at his peril to any but a paramount owner and that he can find relief only by resort to a court of equity, by a bill of interpleader, where there is a controversy concerning the ownership. Banfield v. Haeger, 45 N. Y. Super. Ct. 433; Willner v. Morrell, 40 id. 222, 226.

The current of authority is, however, that the carrier shall give notice to the consignee if he is to be protected by legal process against the consequences of nondelivery, some cases holding that such notice must be immediate. The authorities in this state sus