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Opinion of the Court, per DENIO, Ch., J.

we have shown that these shareholders are not the owners of the bonds held by the banks.

There are some questions which are not common to all these banks. In the first case the bank was established, and the taxes which are challenged were imposed prior to the enabling statute of this state, which was passed and became a law on the 9th day of March, 1865. Only one of the plaintiffs resided in the ward of the city of Utica in which the bank is situated. The principles which have thus far been stated, show that he was legally taxed. Of the other parties taxed, one resided in another ward of the city, one in the same county, another in another county of this State, and the remaining one in the District of Columbia. Our laws, prior to the enabling act, required that the taxation of personal property shall be in the town or ward in which the tax payer resides. I was at first inclined to the opinion that the provision of the national banking law, so often referred to, might be considered as a change of our own law, and might be sustained on account of its relation to the national banks which are within the sphere of federal legislation. On further reflection, I have concluded that it would be more correct to hold that the effect of the proviso is to permit the States so to shape their laws of taxation as to tax all the shareholders at the place where the bank is situated, as has been done by the enabling act.

It follows that the judgment of the Supreme Court, in favor of the plaintiff against Mr. Churchill, should be affirmed, and that the judgment in favor of the other defendants in that case should likewise be affirmed.

In the second case, the bank was established prior to the passage of the enabling act just mentioned, and, also, prior to banking act of congress, approved June 3, 1864. The enabling act, which authorizes the taxation of shareholders otherwise than in the place of their residence, declares that “all the shares of any of the banking associations organized under this act, or the act of congress mentioned in section one of this act,” shall be assessed and taxed in the town or ward in which the bank is located (Laws 1865, ch. 97, $ 10),

Opinion of the Court, per DENIO, Ch. J.

and the act of congress mentioned in that first section is the act of congress of June 3, 1864. The First National Banking Act was passed February 25, 1863 (37th Cong., Sess. 3d, ch. 48), and it was consequently under that act that the First National Bank of Albany was organized. This would be conclusive in favor of such of the shareholders of that institution as reside out of the proper ward of the bank, were it not that a section of the act of 1864 (the 62d) provides that all the banking associations organized under that former banking act, which is in terms repealed by that section, should enjoy all the rights and privileges granted, and be subject to all the duties, liabilities and restrictions imposed by that act of 1864. I am of opinion that when the New York enabling act embraced within its scope all the associations organized under the act of 1864, it included, by a reasonable construction, these associations which, although first established under the earlier act, were continued and confirmed by the banking act of 1864, and which stood at the passage of the New York act, solely upon the last banking act of the United States.

Hence, the judgments in the second and third of the above entitled cases must be reversed; and it must be declared, as the judgment of this court, that the taxation of the shareholders, mentioned in the cases agreed on in these actions, were legal and valid.

The costs in each of the appeals are awarded in favor of the prevailing parties.

The form of the judgment is to be settled by one of the judges (unless agreed on by the parties), in order that a proper clause may be inserted, showing that a question arising under the Constitution of the United States was involved in this decision.

All the judges concurred in these conclusions, except that PORTER, J., did not sit in the last mentioned case, on account of interest in the bank concerned in it.

Statement of case:

John W. GRETON, Appellant, v. GEORGE O. SMITH and JOHN

B. McPHERSON, Respondents.

33 245 139 84

A tenancy from year to year is ordinarily implied in favor of the owner, against

one who enters under a parol demise for a term of years, void by the statute

of frauds. But when the entry is under an agreement by the owner to execute a valid

lease in writing for the term, and he afterwards, in bad faith, refuses to execute it, repudiates the relation of landlord and tenant, and within the year resumes dominion over the property, he is bound by his election, and has no remedy on an implied agreement for intermediate use and occupation.

to pay

The action was for the recovery of rent.

It was alleged in the complaint that the defendants had been tenants of the plaintiff for the year ending on the 1st of May, 1854; that they paid the rent up to that time; that by permission of the plaintiff they continued in possession as his tenants until the 1st of May, 1855, and that after that date he resumed possession of the premises; that four hundred dollars, payable quarterly, was a reasonable sum for such use and occupation, and that the defendants promised

that sum to the plaintiff. They denied in the answer that they were the tenants of the plaintiff for the year ending on the 1st of May, 1855, but alleged that in the spring of 1854, they made an agreement with him, by which he was to rent the premises to them for ten years from the 1st of May, 1854, at an annual rent of $275, payable quarterly; that it was agreed that he should subsequently prepare the lease, and that they should execute it; that upon this understanding and agreement they continued in possession, and paid the first quarter's rent on the 1st of August, at the rate so agreed; that the plaintiff, on some trivial pretext, delayed giving the lease until shortly before the 1st of November, when he refused to give a lease on the terms agreed; that he also refused to allow them to continue their occupation; that he resumed possession of the premises, and put up a bill advertising them to be let, and that by these means he compelled them to leave the premises,

Statement of case.

which they did on the last of October. They alleged their counterclaim for damages and denied all indebtedness to the plaintiff.

In the reply the plaintiff admits the agreement for the ten years' lease, as alleged; admits that he was afterwards to prepare the lease to be executed by the parties, and also admits that the defendants, on this understanding and agreement, continued in possession, and that they paid at the agreed rate the rent for the quarter ending on the 1st of August. He denies the other allegations in the answer, and alleges that the agreement was not in writing; that the rent to be reserved on the lease was not ascertained until after the 1st of May, and depended on facts then unknown; that in October, 1854, in conformity with the agreement, he tendered a lease, duly executed, to the defendants, who refused to accept it or to execute the counterpart.

The cause was tried in the New York Common Pleas, before Judge Daly and a jury, and resulted in a verdict for the defendants. There was some conflict of evidence, but there was proof tending to establish the following facts; and as the verdict was in favor of the defendants, we are to assume that the proof was satisfactory to them.

The premises were part of the fourth story of a store in Maiden Lane, which the plaintiff .held under a renewed lease from Messrs. Grinnell & Son, for ten years from the first of May, 1854; the rent reserved by them for the whole of the fourth story being $400 a year. The plaintiff's shop was in the front, and that of the defendants in the rear. The defendants were engaged in the manufacture and sale of gold and silver thimbles. The plaintiff was also engaged in the sale of thimbles, though ostensibly in the gold pen business.

In the spring of 1854, the plaintiff called on the defendants, and wished them to take a lease for ten years from the first of May. The negotiation resulted in a mutual agreement that a lease of the premises should be executed at an annual rent of $275, and that the lease should be unconditional. The defendants remained until October, but the plaintiff did not execute the lease.

He then prepared

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Statement of case.

the draft of an instrument which he was ready to execute, but which the defendants would not accept. It was cumbered with conditions, one of which gave him a right of reëntry, if the premises should be used for any business which should interfere or conflict with his own. The defendants remonstrated against a prohibition of their continuance in the business in which he and they were engaged, and claimed an unconditional lease in accordance with the agreement. He told them they must sign this lease or none; that they were not his tenants, and if they did not sign it, he would make New York too hot to hold them; that he had them in his power, and if they did not sign it, he would turn them into the street. He accordingly posted a notice that the premises were to let, and offered to lease them to different parties, from the first of November, declaring that the defendants were no tenants of his; that they were in possession, but he would show them that they would have to go out. The defendants accordingly left the premises on the 31st of October.

Upon this state of facts the judge charged the jury, that if the plaintiff suffered the defendants to go into possession of the premises under a verbal agreement that they should have a lease for ten years, and then refused to give them such a lease as he had agreed to give, they were justified in abandoning them at the time they did, and are not liable for any rent for the period during which they actually occupied the premises in question; and the plaintiff's counsel excepted.

The judge also instructed the jury, that if the plaintiff delayed offering the lease until just before the defendants left the premises, and they refused, and the delay was occasioned by his own act, then the defendants were entitled to abandon the premises, and are not liable for any rent for the time they occupied; and the plaintiff's counsel excepted.

Exceptions were also taken to rulings on the admission of evidence, and to the refusal of the court to charge the jury in accordance with the plaintiff's requests.

The jury having found for the defendants, and the judgment having been sustained at the General Term, the plaintiff appealed to this court.

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