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Brownell v. Carnley.

liable to be thus sacrificed at the instance of a general creditor of the consignor.

It is undoubtedly true that Gordy as owner, and virtually the consignor, had an interest in the property consigned, which was liable to be attached, but it was not an interest which gave to him, or could give to his creditors, any right to divest, or interfere with, the possession of the plaintiff-unless upon the terms of refunding his advances with interest, and paying his commissions and charges. Until a compliance with these terms, the interest of Gordy was nothing more than a right to demand and receive from the plaintiff the surplus proceeds of a sale,—and it was this interest, and this alone, that was liable to be attached. It is evident, however, that this contingent interest or right was not a property which in judgment of law was capable of a "manual delivery;" and hence the Sheriff, instead of taking possession of the goods, should have proceeded in the mode prescribed in § 235 of the Code. He should have done nothing more than to leave with the plaintiff a certified copy of the warrant of attachment, together with a notice of the interest levied on, and by so doing he would have given to the creditor, at whose suit the attachment was issued, all the protection and security to which he was entitled. By proceeding as he has done, he has rendered himself liable as a trespasser, and lost wholly the protection of the process under which he professed to act.

Even had the plaintiff in this case been only an ordinary pledgee, having no title to the goods, and no power of immediate sale, but merely the right of retaining the possession for his ultimate security, we must still have held that the conduct of the defendant in depriving him of this possession was unlawful, and not justified by the process under which he acted.

Every pledgee has at common law an absolute right to retain the possession of the property pledged, not only against the pledgor, but against every person not showing a paramount title, until the conditions of the pledge have been fulfilled; and to warrant an interference with his possession, in any other case, an express statutory provision changing the rule of the common law is necessary to be shown; but no such provision certainly is to be found, making goods in the lawful pos

Brownell v. Carnley.

session of a pledgee, liable to seizure under an attachment against the property of the consignor, whether the attachment be issued under the Revised Statutes, or under the Code. It is true the Revised Statutes have so far changed the rule of the common law, as to make the right and interest of a pledger liable to be sold under an execution against him, even while the goods are still in the possession of the pledgee, but the statute, by its express words, is confined to a sale under an execution; and this a sale, not of the goods themselves, but merely of the interest of the pledger-that is, his right to redeem them upon payment of the debt for which they are pledged. The reasons upon which the statute is founded, are not applicable, in our opinion, to a seizure of goods under an attachment; and the principle is well settled, that a statute, in derogation of the common law, is, in all cases, to be strictly construed, and is never to be extended, by a doubtful analogy, to cases that its terms have failed to embrace.

It may not be amiss to remark that it is still, in our opinion, an open and doubtful question, whether the statute, in authorizing a sale under an execution of the interest of the pledger, has authorized the Sheriff to remove the property from the possession of the pledgee. Such was indeed the decision of the Supreme Court in Stief v. Hart, but although the judgment in this case was affirmed in the Court of Appeals, it was so, not by a majority of its members, but solely as a consequence of an equal division in their opinions. We do not think that this question-rejecting as we do the supposition, that the provisions of the statute are just as applicable to an attachment as to an execution-is necessary or proper to be decided by us in the present case, nor are we to be understood as meaning to express any opinion in relation to it. We mean only to intimate that we should not hold ourselves precluded from examining and determining the question in conformity to our own views of the proper construction of the statute, if hereafter it shall properly arise in a case before us.

It is admitted that the goods now in question have been sold by the plaintiff since the possession was restored to him in the present suit, and that he has now in his hands a balance of $850 belonging to Gordy, the debtor in the attachment; but

Engle v. Owen.

whether the defendant, by virtue of the attachment, is entitled to demand from the plaintiff the payment of this balance, is not a question that we have now a right to determine. No such question is raised by the pleadings, and it is very doubtful whether it could have been raised, in any form of pleading, in an action like the present. The only question that we can now determine is, whether the seizure of the goods by the defendant under the attachment was a wrongful act, and the plaintiff therefore entitled to recover their possession, when he commenced this action. We are clearly of opinion that he was so entitled, and consequently, that judgment must now be entered in his favor.

Judgment accordingly with costs.

ENGLE, Appellant, v. THORN and OWEN, Respondents.

E. let premises to T. & O., the lease providing, that the premises should be preserved in tenantable order by T. & O., but that they should make no alteration without the consent of E. in writing. In such a case, when it is not alleged in the complaint, that the alterations are an injury to the demised premises, the court will not entertain jurisdiction of an action merely for the purpose of compelling the lessees to restore the premises as exactly as possible to the condition they were in when hired, especially when it appears that doing so would be a great injury to the lessees and no benefit to the lessor. It will, by injunction, inhibit further alterations. But it will not attempt to compel a party to do a thing, substantially impracticable, and which, if done, as nearly as is practicable in the nature of things, would not only be a great injury to the party sought to be coerced, but would be of no practical utility to the plaintiff.

(Before OAKLEY, C. J., BOSWORTH and SLOSSON, J.J.)

Jan. 10; 28, 1854.

THE plaintiff demised to the defendants, No. 414 Broadway, for the term of ten years from the first of May, 1850. The lease contained these provisions. "The premises to be preserved in tenantable order or condition by the lessees, no alteration to be made without the consent of the lessor in writing, the premises are not to be occupied for any business deemed extra-hazardous

Engle v. Owen.

on account of fire, nor shall the same be let or underlet, or any part thereof, except the upper part, basement, or rear part of store, the front store to be as a clothing or tailor's store, and not otherwise."

The complaint alleged that the defendants, without his consent, had cut a door through the south side of the said premises through the brick wall, to make a communication with the adjoining building, which is a hotel. It specified other alterations alleged to have been made, and stated that the defendants intended to make further alterations, and prayed judgment, "that the said defendants do put the said premises in the same order and situation that they were at the time of executing the aforesaid memorandum or agreement, within a reasonable time, or that in default thereof this plaintiff be at liberty to cause the same to be done under the direction of a referee, and have execution against the said defendants for the expense of doing thereof."

The gist of the answer was, that when the premises were hired they were in some respects dilapidated and needed repairs. That all the changes which the defendants had made were in substance and effect improvements and repairs, and have greatly benefited the said premises, and have increased the value of the freehold and reversion thereof. That the plaintiff knew of the cutting through of the door at or about the time it was done, and in no manner objected thereto. That the door put up therein was made of iron, in the most substantial manner, and the construction of such door has in no way or manner injured the said premises, and is, and long has been, and will continue to be of great use and convenience to the tenants who occupy the second story of the premises aforesaid.

The action was tried before Mr. Justice Duer at a special term of the court, without a jury. His decision was as follows:

"It is decided and adjudged that as to the matters charged in the complaint, excepting the cutting of a doorway through the brick wall on the southerly side of the premises in the complaint mentioned, the acts and doings of the defendants in and upon the said premises, were in the nature of improvements and repairs, and not alterations, within the meaning of the agreement of hiring and letting between the plaintiff and the defendants,

Engle v. Owen.

and that the cutting of said door has not materially injured said building or endangered its safety.

"And it is further ordered and adjudged that the defendants do, at least sixty days before the expiration of the said agreement of hiring and letting, re-build and close up the said doorway with proper and suitable materials for that purpose, so as to make the same in all respects equal in solidity and durability to the other parts of the said wall, under penalty of being deemed guilty of a contempt of this court. And it is further ordered and adjudged that the defendants, their attorneys, servants, agents, and workmen, are and be perpetually enjoined from making any further or other alterations of said premises without the consent of said plaintiff.

"And it is further ordered and adjudged that neither party recover costs in this action."

To which decision and judgment the plaintiffs then and there excepted, and in due time appealed to the General Term, both as to the decision as to matters of law and matters of fact.

J. N. Platt, for the Appellant, argued, among others, the following points.

I. One of the express conditions on which the defendants obtained the lease of these premises was their covenant not to alter them. It can make no difference what may be the effect of such alterations, and whether they will or will not improve the rent of the premises. Mr. Engle had a right to impose such restrictions when he let the premises, and with such restrictions affecting the rent of the premises and their value and use, the defendants leased them. Without these restrictions the defendants would not have obtained their lease, and if the premises in their then situation were less valuable than they would otherwise be, of course the defendants got them for less

rent.

This being so, the plaintiff is entitled to the performance of this covenant. The Court can no more tear the seal from this covenant than they can from the one to pay rent, or to yield up the possession at the end of the term.