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Armstrong et al. agt. Cummings and Ingersoll.

the rent will issue out of the lands or house only; and the lessor may declare, as on a demise of the land or house, without noticing the goods (2 Platt on Leases, p. 58, and authorities cited)

At common law a landlord might distrain for rent in arrear, but only on a demise of corporeal hereditaments (Archibald on Landlord and Tenant, marg. p. 106), but, the landlord, nevertheless, might distrain for the rent of ready-furnished lodgings (Newman agt. Anderton, 2 Bosanquet & Puller's New Rep., 224), for the rent was holden to issue out of the realty alone. Chief justice MANSFIELD, in the above case, said : “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.” In Fay agt. Holloran (35 Barb., 297) the court said: “Rent cannot be reserved out of chattels personal. If such chattels are demised with the land, at an entire rent, the rent issues out of the land only," citing 2 Black., 42, note, 53 (Wendell & ed.); 5 Rep., 17 6.; 2 New York, 224. If this were not so the statute would have no application to furnished tenements, hotels, manufactories or saw-mills, because they contained furniture or steam power. It would have no application to any house wherein the landlord owned the gas-fixtures, portable heaters or wash-tubs, and let them with the premises. Indeed, the statute would have such a limited application that its usefulness would be destroyed and further legislation required.

But there is no cause for alarm, as the law is well settled The remedy furnished by the statute extends to all of the cases just referred to. Such has been the construction this statute has almost invariably received since its passage in 1820 (chap. 194), and it is rather late at this day to attempt to put upon it the narrow and stinted construction contended for by the tenant's counsel. The landlord is entitled to judgment.

German Savings Bank agt. Habel et al.



HABEL et al., appellants.

Injunction - in order to punish for a violation of, what should be embraced

in order.

In order to punish for a violation of an injunction, the order should

clearly embrace the act complained of. Where an injunction was obtained restraining the prosecution of a certain

action in the marine court, or any steps to recover the $400 on deposit

claimed therein: Held, not to enjoin the plaintiff in the marine court action from collect

ing certain costs awarded to it by that court prior to the injunction.

Decided March 2, 1880.

An action was commenced in the marine court by the defendant, Agathe Habel, against the plaintiffs, to recover a deposit of $400; the bank, disputing her title to the fund in question, made a motion in the marine court to interplead Henry Gunther, the executor of Carl Habel, as such executors, who claimed the fund.

This motion was granted to a certain extent; an appeal to the general term of the marine court was taken by Mrs. Habel, and the decision of the court below was reversed, and the sum of twenty-nine dollars and eighty-five cents costs was awarded to Mrs. Habel upon said appeal.

The bank thereafter commenced this action in the superior court of the city of New York for an interpleader, and have ing obtained therein a preliminary injunction, by which the defendants and their attorneys were enjoined and restrained from bringing, or further prosecuting, or carrying on any action including said action in the marine court, or from taking any steps or proceedings to recover the sum of $400

German Savings Bank agt. Habel et al.

deposited with the plaintiff by the defendant's deceased husband, until further order of the court; this injunction was continued after trial and a judgment of interpleader.

The defendants' attorney issued a precept for the collection of the costs and disbursements awarded by the general term of the marine court and the bank moved, in the superior court, to punish the attorney for contempt and for a stay of proceedings under the precept. That court granted the motion, stayed the proceedings of the sheriff upon the precept and awarded ten dollars costs, to be paid by defendants' attorney, from which order this appeal was taken by Mrs. Habel and her attorney. The general term of the superior court affirmed the order and a further appeal was taken to the court of appeals. That court filed the following opinion:

Samuel Hand and Fenry Wehle, for appellants.

S. Kaufman, for respondent.

PER CURIAM. - The injunction clause in the order did not prohibit the collection of the costs awarded, but the prosecution of the action, or any steps to recover the $400 on deposit in the name of Habel.

Under these circumstances the costs were collectible, and the attorney was justified in issuing the precept. If it had been intended to prevent the collection of the costs the order should have been broad enough to cover them. That it was not so intended is shown by the fact sworn to, that the costs became due and an execution could have been issued for their collection before this action was commenced, and that the omission to do so was casual. The orders of the special and general term must be reversed and motion denied, with ten dollars costs of opposing motion and costs of appeal to the general term and to this court. All concur. VOL. LVIII


Jordan agt. Van Epps.


ELIZABETH JORDAN, appellant, agt. John C. Van EPP8,


Divorce can a decree of, be attacked collaterally? Dover - inchoate right

of, can be determined and cut of by partition suit.

An inchoate right of dower can be determined and cut off by partition

suit. A woman whose dower has not been admeasured may be made a party

defendant in a partition suit; and if she be made a party to such suit, under an allegation that she is entitled, or claims to be entitled, to

dower, the decree is conclusive as to her homestead right. A judgment rendered by a court having power lawfully conferred to deal

with the general subject involved in the action having jurisdiction of the parties, although against the fact or without the facts to sustain it, is not void as rendered without jurisdiction, and cannot be questioned

collaterally. A purchaser under a sale in partition is protected against all irregularities

in the judgment, or in the proceedings upon which it was founded, which do not affect the jurisdiction of the court over the subject-matter

or the parties. Can a decree of divorce be attacked collaterally by a party to such decree

as against a third person? Quære.

Fourth Department, General Term, January, 1880.

APPEAL from a judgment of Monroe county court entered in favor of defendant, October 16, 1878, upon the verdict of a jury — of nonsuit by direction of the court, and from an order of the special county judge of Monroe county denying a new trial thereof.

This is an action of ejectment by plaintiff to recover an alleged dower interest, as the widow of one Christopher Jordan, in one acre of land in Rochester, New York, against the defendant, a purchaser under a partition sale. Summons was served on defendant October 26, 1877; complaint,


Jordan agt. Van Epps.

15, 1877. It alleges marriage of plaintiff October 28, 1850; the death of her husband, Christopher Jordan, March 14, 1876; conveyance by Christopher, March 18, 1852, of the premises in question, in which plaintiff did not join, and prays that the defendant deliver up the “undivided onethird” part of the described premises. Issue was joined by the service of defendant's answer November 27, 1877: (1.) It denies the date of plaintiff's marriage. (2.) Pleads in bar a divorce July 8, 1858, of her husband from plaintiff on the ground of adultery. (3.) Partition suit and deed thereunder, by which defendent came into and retains possession, the plaintiff herein being a party to the partition suit. The action was tried April 26, 1878, before Monroe county special judge and a jury. A verdict for defendant was given under direction of the court. Upon motion a new trial was denied October 14, 1878. Plaintiff's exceptions relate to the admission of the judgment roll of plaintiff's divorce, the judgment roll of partition, on the ground that they were “immaterial, incompetent and irrelevant,” and to plaintiff's rejected offer to impeach, collaterally, the divorce of plaintiff's husband from her.

FACTS PROVEN. Plaintiff and Christopher Jordan were married October 28, 1850; that said Christopher, at the time, was owner in fee of the premises in suit, and in possession at the time of his subsequent conveyance of them; that, March 18, 1852, he deeded them to George W. Jordan (a brother), in which conveyance the plaintiff Elizabeth did not join; a demand of defendant, who had made improvements since his partition deed, under which, among other things, he claimed title; that Christopher Jordan died March 14, 1876; that plaintiff and Christopher cohabited, after their marriage, up to the time they separated and he obtained a divorce from her; that they had trouble and separated about the time of the divorce, and afterwards she came back; that thereafter they occupied different rooms; that there was litigation in surrogate's court, after Christo

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