Allen v. Dunlap , 42 Barb. 585 ( 1864 )

By the Court,

Grover, J.

An action is commenced by the service of the summons upon the defendant. (Code, § 99.) This action was not, therefore, commenced at the time the defendant offered to deliver the key to Barber, one of the trustees of the district and one of the plaintiffs in the action, although the summons had been made out and delivered to the officer to be served, prior to that time. The judge, among otlier things, charged the jury, that a tender of the key to'one of the trustees, in the absence of the others, without shoeing him to be authorized by the other trustees to receive' it, was not such a tender of the possession of the house as would bar the plaintiffs’ right of action if the jury should find that the defendant refused to surrender the possession of the house when the trustees were together at the premises, as claimed by the plaintiffs. To this portion of the charge the defendant excepted. The defendant’s counsel requested the court to charge the jury, that if, before the commencement of the action, the defendant offered the possession of the premises- to the trustees, or any one of them, the plaintiffs could not recover. The judge refused so to charge, and the defendant excepted to such refusal. To understand the question raised by the exceptions to the charge as given, and the refusal to charge as requested, it must be borne in mind that all the evidence given by the plaintiffs tending to show that the defendant was in possession of the school house, was that he had refused to deliver the key to the plaintiffs and let them take possession thereof unless they would accept a job of work done thereon by the defendant and surrender the contract for doing the same, which the plaintiffs refused to do. The sole question to he tried was whether the defendant was in possession of the school house and premises sought to he recovered in the action, or claimed any right thereto adverse to the plaintiffs, at the time the action was commenced. If the defendant was not in possession at that time, and claimed no such right, it is clear that an action by the plaintiffs to recover from him the premises can not be maintained. If what was done by the defendant, at the time the trustees were all there, was sufficient to warrant a recovery by the plaintiffs, in the absence of other proof, it could only do so by raising a presumption that the defendant was in possession at the commencement: of the action. If he was so in possession, he conM ahandon it at any time; and whether the plaintiffs accepted it hr not, if he was out of possession by his own act at the bbrnmepca^i ment of the suit, the plaintiffs could not recover. - ' The offer to deliver the key to one of the plaintiffs was an! abandon- ' ment of the possession by the defendant, as that wqs 'all the possession that the defendant had of the premises, and it- was wholly immaterial whether one or all the trustees were present at the time of such offer; or whether the offer was accepted or not. There was no act to be done by the plaintiffs to discharge the defendant from his liability in an action for the recovery of the premises. All that was necessary was, for the defendant to quit possession. The only symbol of possession by him was the key. When he gave or offered to surrender this to one of the plaintiffs, thereby surrendering all claim to any further control of the house or premises, he nod, to all intents and purposes, abandoned the possession, and the action could not be sustained. The learned justice evidently had in his inind the well established rule, that where an authority is vested in a body to do any act, all must meet or have notice of the meeting, to enable the majority to act. This rule, and the statutes regulating it, have no application to this case. There was nothing for the trustees to do. They could not, by refusing to accept the key or take possession of the premises, keep the defendant in possession against his will and thereby subject him to an action for the recovery of the possession. The question of tender had nothing to do with it. It is not necessary to examine the question whether the defendant ever had such a possession of the premises as would maintain the action.

[Erie Geberai, Term, September 5, 1864.

The judgment must be reversed, and a new trial ordered; costs to abide the event.

Davis, Grover, Marvin and Daniels, Justices.]