Cas., 507; Cato v. Irving, 5 De Gex & Smale's, 210; The Brig Wexford, 7 Fed. Rep., 681-682. The holder of a second mortgage occupies a different position; as stated by Sir W. M. James in Liverpool Marine Credit Co., supra, "What is the position of a second mortgagee of a ship with respect to the freight? He has no legal right to take actual possession, and cannot therefore by his own act give himself that which is equivalent to possession. But as between himself and the mortgagor the equitable right of the second mortgagee is the same as the legal right of the first mortgagee. **But this is to be understood only as between the second mortgagee and the mortgagor. * The respective positions of the first and second mortgagees are essen tially different, arising from the essential difference between a legal and an equitable title. The legal owner's right is paramount to every equitable charge not affecting his own conscience; the equitable owner, in the absence of special circumstances, takes subject to all equities prior in date to his own estate or charge." * * * Upon these principles counsel for the respective parties reach divergent conclusions, it being claimed upon the part of plaintiff that the mortgagee had taken possession of the vessel, had made but a conditional release, and under the circumstances attendant thereon he became legally and equitably entitled to the moneys earned; that defendant could not by any act, based upon its mortgage, obtain a superior title to said moneys. Upon the part of defendant it is contended that when plaintiff released the pos session of said vessel to the mortgagor, he placed the latter in the same position as though he had never seized, and thereafter relied upon the security of the assignment taken in consideration of the release; that the assignment was inferior as a lien to its mortgage, as the latter was prior in point of time, and being possessed of the right to seize and take possession of the vessel by virtue of the mortgage, it exercised such right, completed the voy. age, delivered the cargo, received the earnings, and as plaintiff did not exercise its right of seizure during this time, defendant took title to the earnings. There is no question but that plaintiff, in November, 1875, seized and took into his possession the vessel. At this time the legal title was vested absolutely in him; he could tie her up, sell or navigate her, as he chose, and no person could complain or compel him to do other or different, except he pay the debt and charges legally due. Under these circumstances Mrs. Nims applied for leave to run the vessel two round trips between Chicago and Buffalo. At this time she had no legal rights in the vessel, and she acquired none by virtue of any subsequent acts. Plaint iff, in consenting to this arrangement, imposed a condition that the earnings of the vessel for the trips should be his; he let her go to enable her to earn for his benefit. The surrender was not only conditional but limited; it was conditioned upon the pay; ment of freight and limited in that it provided for only two round trips, when, under a fair interpretation of the arrangement, the vessel was to be returned to the actual possession of plaintiff. When plaintiff released the vessel he surrendered no part of his legal title, nor did he surrender possession, beyond such as was necessary for her navigation in order to earn for his benefit; this involved all the vessel could do, and it was not such a release from his control over the vessel as would have enabled the mortgagor to receive for his own benefit the freight money, had there been no assignment. The assignment neither detracted from plaintiff's rights, nor did it add to those of the mortgagor; plaintiff was not bound by the assignment of the freights, for he could at any time have secured them by taking possession, and he could have prevented the voyage, as the assignment gave him no additional right to what he already possessed; consequently there was no consideration for it. The mortgagor's possession was for a special and particular purpose; in carrying out that purpose he represented the plaintiff. At this time the debts secured by the two mortgages were due, plaintiff had the legal title; defendant simply had an equitable right or interest. If the right of defendant to seize be conceded, its equitable right to enforce the claim upon which it founded the right to seize could, in the nature of things, only be against such rights as the mortgagor possessed therein at the time of seizure, and, as against plaintiff, she possessed no right to the freight moneys, either legal or equit able. By the seizure defendant did not acquire any greater right than it already possessed against the mortgagor, as it could acquire no greater right than she at the time had. Within the authority heretofore cited, the seizure therefore gave defendant no additional rights to the moneys. This view proceeds upon the theory that the rights obtained by virtue of the assignment, executed at the time of the release, are outside of the questions involved. It consequently disposes of defendant's claim that its mortgage being prior in date to the assignment, therefore it possessed a superior lien. It is conceded that the expenses paid by defendant are a proper charge upon the moneys received. If these views are correct, it follows that the judgment rendered is wrong; it is therefore reversed and a new trial ordered before another referee, costs to abide event. BECKWITH, Ch. J., and TITUS, J., concur. BETSY SULLY, Resp't, v. HENRY SCHMIDT, App'lt. (Superior Court of Buffalo, General Term, Filed November 15, 1890.) 1. LEASE-ABANDONMENT OF PREMISES-LAWS 1860, CHAP. 345. A partially open drain or sewer ran under the floor of the premises rented by defendant from plaintiff in which to keep a hotel bar. The sewerage of plaintiff's hotel emptied into this drain and occasionally overflowed, causing disagreeable odors. Held, that the conduct of the landlord in draining his closets through this drain was not such as to constitute an eviction, and that in the absence of fraud or concealment by plaintiff of the situation, defendant was not justified in abandoning the premises by chap. 345, Laws 1860. 1 Affirming 31 N. Y. State Rep., 443. 2. SAME. The lease provided that if the premises were destroyed by fire, or so much damaged as to render them untenantable, either party might terminate it by giving notice, but for no other cause. Held, that the parties had thereby fixed the cause for which the lease could be terminated, and that it could not be terminated for any other cause without plaintiff's consent. (HATCH, J., dissents.) APPEAL from an order of the special term, granting plaintiff's motion for a new trial, upon a case containing exceptions. Jacob A. Dreiss, for resp't; Truman C. White, for app'lt. HATCH, J., (dissenting.) This is an action to recover rent of certain premises. The defense is eviction, by affirmative act of the landlord. The cause was tried by a jury, and the court submitted to them the question whether the property, after entry by the tenant, had become unfit for use and untenantable, and as a necessary inference flowing therefrom, whether plaintiff had abandoned said premises on account thereof. Under a charge by the court, which the parties acquiesced in, the jury found a verdict in favor of defendant of no cause of action. Upon motion for a new trial, the court held and decided that it should have directed a verdict for plaintiff, and therefore set aside the verdict and granted a new trial. It appeared upon the trial, without dispute, that defendant entered into possession of said premises under, and by virtue of, a written lease, executed on the 26th day of April, 1886, whereby said premises were leased to him for and during the term of three years, at an annual rent of $800, payable monthly in advance, said term to commence on the 1st day of May then next ensuing. Defendant did not, in fact, enter into possession until about May 16, 1886, when he paid a month's rent, and continued thereafter to pay said rent, on or about the 15th of each month, up to and including the month of April, 1888. On the 28th day of said last named month he abandoned said premises, refused longer to occupy the same or pay rent. The premises rented consisted of a ground floor, connected with a hotel, which was used by defendant as a bar-room for the sale of liquor. There was no cellar underneath the same, and at the time of entry defendant made no examination of their condition with respect to sewerage. Defendant's testimony tended to show that some two or three months after entry, while engaged in fixing a place underneath for his coal, he discovered an offensive smell, and further investigation developed an open sewer running underneath his premises, forty or forty-five feet in length, about eight inches wide, and a foot and one-half deep, with plank at the bottom and sides. This sewer connected with the main sewer in Michigan street, on which said premises fronted, and was used to convey the sewerage from said hotel, all lateral sewers therefrom emptying therein. The hotel had capacity for 150 people, and entertained upon an average forty persons a day. There were seven or eight water-closets therein, all of which connected with the sewer and emptied their contents therein. At the time defendant discovered said sewer it was filled with human excrement, and emitted a noxious and offensive odor which permeated his premises; he cleaned it out, but was unable to entirely remove the smell. From time to time the sewer was cleaned out by defendant, and also by plaintiff, but it filled up from the closets, and required attention once or twice a month, depending upon the number of guests accommodated in the hotel. By reason of the offensive and noxious gases arising therefrom, defendant was made sick, lost flesh, and was finally compelled to leave. Complaint was made to the board of health by defendant a short time prior to the surrender, and the premises were examined by the physician of the board, at or about the time defendant left, and said physician testified that said sewer was detrimental to the health of persons occupying said premises. Upon this testimony I am of opinion that the cause was properly submitted to the jury, and that their determination is final upon the question involved. It is a general principle of law, stated many times in many cases, that if the landlord, after entry by the tenant, creates a nuisance or suffers one to be created upon the demised premises, or is guilty of such acts as interfere with the substantial use and beneficial enjoyment of the demised premises by the tenant, and on account thereof the tenant abandon the same, no rent can be recovered therefor from the date of abandonment. Truesdell v Booth, 4 Hun, 100; Thalheimer v. Lempert, 17 N. Y. State Rep., 346; Edwards v. Candy, 14 Iun, 596. This rule is conceded, but the claim is made that inasmuch as the lease provided that the defendant should keep the premises clean and in repair, therefore the duty devolved upon him to keep the sewer open and clear so often as the same should become stopped up. No case is cited where that doctrine, as applicable to the facts here disclosed, has been upheld. I am of opinion that the rule finds no application to the present case. There is no rule of law where it is made the duty of the tenant to remove or abate a nuisance so often as his landlord shall create one. The duty to keep the premises clean or in repair relates to the removal of such dirt or filth, or the restoration of decay arising from natural causes as in the use of the premises is created naturally or by the tenant. As to such he is responsible, as it comes by his act, either carelessly or necessarily in the use; but to say that such duty is imposed when the nuisance is created by the landlord, and over which the tenant has no control, is to assert a doctrine beyond any adjudicated case, or within the reason of any rule which requires the tenant to keep the premises rented clean. It would scarcely be claimed that if the landlord dumped each morning a load of night soil at the front door of his tenant, that the requirements of the lease absolutely imposed the duty upon the tenant to remove the same under the clause that he must keep the premises clean. Yet I can see no distinction between such an act on the part of the owner and one where he permits, from his adjoining structure, filth and night soil to run under the premises of the tenant, accumulate and permeate the same with offensive and dangerous gases. Nor do I think the situation changed because one should be hauled on a wagon and dumped, and the other run down and accumulate. The result is the same in each case. Such act seems to bring the case within the adjudicated cases. And if in the one case it would justify abandonment, I do not see why it does not in the other. The gravamen of the charge is the creation of a nuisance, and the manner of its creation is of no moment, if it exists. As to that no authority is needed to show that the accumulation of night soil underneath another's premises, from which escape offensive odors and noxious gases, deleterious to health, is a nuisance. The learned court, in granting the motion for a new trial, proceeded upon the theory that the cause of the nuisance was the result of other conditions than plaintiff's sewer or closets, i. e., was due to high winds, which forced the water back from the mouth of the sewer at its junction with the canal, and thus caused an overflow under the premises occupied by defendant, creating the nuisance complained of. That as the parties had stipulated in the lease for a single cause of abandonment by the tenant, that of fire, all other causes were expressly waived by the tenant, and as the alleged cause of surrender was not embraced in the contract, no cause existed to suspend the payment of rent. It is needless now to discuss, if it be assumed, that the damage resulted in the way pointed out. Whether defendant could avail himself of the provisions of the statute of 1860, or whether he could rely upon the facts as sufficient to constitute an eviction at common law, it is here sufficient to say that the record presents a disputed question of fact, the testimony upon the part of defendant tending to prove the facts already stated, and upon the part of plaintiff tending to prove the facts upon which the theory of the court was based. As to these conflicting questions, the jury were the judges, and the evidence warranted the verdict rendered. The order granting a new trial should, therefore, be reversed, and judgment ordered for the defendant upon the verdict. BECKWITH, Ch. J., for affirmance on opinion of TITUS, J., at special term. Judgment affirmed. FRANKLIN ALLEN et al., Ex'rs, Resp'ts, v. HENRY ALLEN and CHARLES M. STEAD, App'lts. (Supreme Court, General Term, First Department, Filed October 24, 1890.) DISCOVERY-BOOKS OF ACCOUNT. In an action for conversion of securities purchased for plaintiff's testatrix through defendants as their agents and left with them, an order for the discovery and inspection of defendants' books of account was granted on a petition showing that plaintiffs had no knowledge as to what the securities were, but that defendants kept such books the entries in which would disclose such securities and their disposition. Held, that plaintiffs were entitled to obtain from the books the information necessary to enable them to present their case; but the order should be restricted to the books which contained entries relating to defendants' dealings with testatrix, or to the securities obtained for her and the disposition made of them. APPEAL from an order directing the defendant Harry Allen, within five days, to permit the plaintiffs, their attorneys and clerks, to inspect and take copies of all books of account of the defendants, in his possession or under his control, from the time his firm |