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The People ex rel. Higgins agt. McAdam.
ment debtor in possession, and that of landlord to the purchaser of the land on execution, without discriminating between such parties and those who are properly landlords and tenants. It seems, then, that Herring, though not the person against whom the execution issued, is liable to proceedings under the statute, if she has entered upon the premises under pretense of title thereto, acquired subsequent to the lien of the judgment. And the dates furnished by the case show that she did. The debtor died in 1872, leaving a leasehold interest for years in the premises not yet at an end. In December of that year executors of his will qualified and received letters testamentary, and went into possession of the premises as owners of the leasehold estate. In 1875, one Parker, a creditor, recovered a judgment against those executors and docketed it. In March, 1876, a receiver of the estate was appointed in proceedings by the executors for a construction of the will, and in proceedings for a partition of the leasehold estate. In May of that year, by order of the surrogate therefor, Parker issued an execution against the executors, judgment debtors in his judgment, and thereupon, in September of that year, issued an execution which the supreme court ordered to be levied upon any of the assets or property of the testators in the hands of the executors, the judgment debtors. In 1877, the sheriff, by virtue of the execution and a levy under it on the leasehold estate, sold that estate and gave a certificate to the purchaser. In 1878, at the expiration of fifteen months from the sale, the sheriff gave a deed to the purchaser, who is the same one who has taken these proceed. ings to remove Herring. In 1879, the receiver leased the premises to Herring, and she went into possession by authority of the lease, and under the title of the receiver. Thus, it appears that the possession of Herring is by the title of the receiver, and that his title was acquired posterior to the judgment. She is within the provisions of the statute, as interpreted by the adjudications that we have cited. The execution was not against her nor against the receiver who let to her.
The People ex rel. Higgins agt. McAdam.
But it was against the executors. The receiver had no greater or other title than that of the executors, and no right to let, save what he got by acquiring their title. It was either under their title that Herring held, and that was a title subject to the lien of the judgment, and swept away by a sale under execution thereon and a perfecting of the sale thereon by taking the sheriff's deed; or it was under the title of the receiver, which was a title posterior to the lien of the judgment and equally swept away. The receiver did not take strictly under the executors, but he took only their right and title; he took not as their agent or servant, but he took as representing their testator in part, and those interested in the testator's estate in part. Spraker agt. Cook (supra) shows that an exact meaning is not to be given to the terms landlord and tenant, in applying the fourth subdivision of the twenty-eighth section; that the purchaser is a landlord,'and that any one in possession under the title that the purchaser has acquired is a tenant within its scope. We perceive that the interest in real estate affected by the proceedings is a leasehold for a term of years. Such an interest was at common law personal property, but the statutes of this state have for some purposes modified its character. Estates for years are by those statutes denominated estates in lands. They are still chattels real, and are not classed as real estate in the chapter of the Revised Statutes of “title to property by descent." A judgment binds and is a charge upon the chattels real of every person against whom the judgment is rendered. We will not say that estates for years in the hands of executors are thus bound and charged, when they have acquired them as the property of their testator, though the judgment be against the executors. For leases for years of a decedent go to his executor or administrator as assets for distribution, and vest in him as part of the decedent's personal property (Despard agt. Churchill, 53 N. Y., 199, and citations there made). It may be that there is a conflict in the statutes on this subject, when it is sought to apply them all at once to
The People ex rel. Higgins agt. McAdam.
such a state of facts as has arisen in this case. If there be, it is not needed that we seek to allay it now.
The creditor recovered and docketed his judgment against the executors before the appointment of a receiver. The receiver was appointed by the supreme court. He was not appointed on the application of creditors. His duty was to receive rents and profits and collect personal estate, and to make deposits with a trust company. He stood in the place and stead of the executors for the benefit of those in anywise interested in the estate of the testator. He was not in hostility to the judgment creditor. When the creditor had, by an order duly made by the surrogate, issued his execution to the sheriff, commanding him to collect it out of the assets and personal property in the hands of the executors at the time when the judgment was docketed, the supreme court then gave leave that the execution be levied and enforced upon any assets or property in the hands or under the control or possession of the receiver, or of the executors, which were of or belonging to the testator. This order, made by the same court which had appointed the receiver, justified the levy upon this leasehold estate, and when the levy was after that made, established it as a binding charge upon that estate as fully as the judgment could have been, had it been rendered against the testator. It did more than that; in effect, it made it an execution, not only against the defendants named in the judgment, but against the receiver also. He was by the operation of the order, though not in terms, yet in substance, the person against whom the execution was issued. The levy and sale under it, and the perfecting of the sale, took place before the lease by the receiver to Herring. Thus, her possession was taken under a title that was subordinate to, or extinguished by, the judgment, execution and order, sale and deed. We see no reason why the facts do not bring the case within the principle of the adjudications that we have cited. If so, the justice of the marine court had jurisdiction of the subject-matter, of the per
VOL. LX 57
Schlossberg agt. Labr.
sons and of the case, and should not have been prohibited from exercising it. The judgment appealed from should be reversed.
N. Y. COMMON PLEAS.
Max SCHLOSSBERG agt. PHILIP LAHR.
Negligence — Parent and child.
A parent is not liable for the trespasses or negligence of an infant
Special Term, March, 1881.
Samuel J. Cahn, for plaintiff
Frank R. Lawrence, for defendant.
VAN Brunt, J.- The complainant in this action seeks to recover damages of the defendant for the negligence of his infant child. The defendant demurs to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The plaintiff cites as an authority to sustain the cause of action mentioned in his complaint, the case of Patterson agt. Harrington (11 Pittsburgh Legal Journal, 346).
I have been unable to examine that case, but if it holds all that is claimed for it by the plaintiff, as it seems to be contrary to the current of decisions in this state, it cannot prevail as an authority. The case of Tift agt. Tift, (4 Denio, 175) is cited by the defendant as an authority to sustain his demurrer. The court held in that case the father was not liable for the willful act of his minor daughter. In the case of Bullett agt. Babcock ( 3 Wend. 291) it was held that infants are liable in
Miller agt. Kent.
the same manner as adults for trespass and assault; and the facts in that case established the rule that an injury to another by the negligence of an infant, renders the infant liable to an action for damages. There is no case in the courts of this state which holds that both the infant and the parent are liable for the trespasses of a minor child, and reasoning by analogy, the case of Tift agt. Tift, above cited, is an authority to the contrary.
In McPherson on Infants (page 496), the cases in which an adult is liable for the trespasses of an infant are limited to those in which the injury is done by the infant, without malice, through the negligence of the adult.
The demurrer must be sustained.
DARIUS MILLER and John MILLER agt. ELMORE A. Kent and
Removal of causes into United States courts — Chap. 137 of 1875 (United
States statutes) — when motion too late — All the defendants or all the plaintiffs must be citizens of different states.
Under the provisions of the act of congress (chap. 137 of 1875), providing
for the removal of causes into the United States courts, “before or at the term at which said cause could be first tried, and before the trial thereof,” it is too late to make such application after a demurrer has
been interposed and duly argued and decided. In all the states there is, by law or rule, a term, i. e., a term at which a
cause may for the first time be called for trial. This is the term at which, within the meaning of the law, the cause could first be tried, and, therefore, is the term at or before which the petition for the
removal must be filed. All the persons constituting "the party” on one side must be citizens
of different states from those on the other side. To warrant a removal under the provisions of the act of 1875, covering