Jacobus v. . Colgate , 217 N.Y. 235 ( 1916 )

The answers to the questions certified to this court depend upon the construction to be given to section 982-a of the Code of Civil Procedure. That section is the result of an amendment made to the law in 1913 (Laws of 1913, chap. 76). Prior to its enactment it was held that the courts of this state had no jurisdiction of actions for injuries to real property lying without the state. (Brisbane v. Pennsylvania RailroadCompany, 205 N.Y. 431, and cases therein cited.) The reason for this conclusion was, not that the owner's rights were not violated or that the owner in such a case did not have a cause of action in the jurisdiction where the property was situated. The true reason for this conclusion was a very technical one that had no relation to the justice of the rule or the rights of the parties.

The development of the law in relation to local and transitory actions shows the nature of the technical rule which operated to deny redress to one whose real property situated in another jurisdiction was injured. The common law originally regarded all actions as local. The early rule required that the venue should be correctly stated. In other words, the place where the fact in issue arose was required to be alleged. This rule arose out of the early practice which required a case to be tried by a jury of the vicinage who were presumed to have knowledge of the facts and the parties. When there were several issues and the facts alleged in relation to them arose in different places each issue would be tried by a jury summoned from the place in which the facts in dispute were stated to have arisen. (British South AfricaCompany v. Companhia de Mocambique, L.R. [1893] A.C. 602, 617.) When juries ceased to be drawn from the place where the fact took place and from among those who were supposed to be familiar with the circumstances "the law began to discriminate between cases in which the truth of the venue was material and those in which it was not so." (British South Africa Case, supra, p. 618.) The discrimination resulted in the distinction between transitory and local actions and the rule that the pleader should lay the venue truly was held to relate only to local actions. To meet the difficulty which arose when the local matter occurred out of the realm the courts invented the fiction which permitted the pleader to lay the venue in any county in England. This fictional averment having been made the courts determined when the defendant should be permitted to put it in issue. For some time there was uncertainty whether this fictional averment was traversable in an action for injuries to foreign real estate, but the courts finally concluded that it was traversable in this character of cases because such an action was not intended to be protected by the fiction. (British SouthAfrica Co. Case, supra; Livingston v. Jefferson, 1 Brock. 203; 15 Fed. Cases 8,411; Little v. Chicago, St. Paul, Minneapolis Omaha Ry. Co., 65 Minn. 48, 50.)

Chief Justice MARSHALL, in Livingston v. Jefferson (supra) made it clear that authority was the only support of the rule and he frankly said: "I have not yet discerned a reason, other than a technical one, which can satisfy my judgment." This artificial and technical rule, working injustice as it often did, did not escape the efforts of Lord MANSFIELD to correct it. Thus in Mostyn v. Fabrigas (1 Cowp. 161; 2 Smith's L.C. [9th ed.] 916) an effort was made to bring the rule of law in accord with reason and justice, but the effort proved futile when the decision of Lord MANSFIELD was overruled in Doulson v.Matthews ([1792]) 4 Term R. 503), which re-affirmed the old distinction. Speaking of this futile effort of Lord MANSFIELD, Chief Justice MARSHALL said: "One of the greatest judges who ever sat on any bench, and who has done more than any other to remove those technical impediments which grew out of a different state of society, and too long continued to obstruct the course of substantial justice, was so struck with the weakness of the distinction, between taking jurisdiction in cases of contract respecting lands, and of torts committed on the same lands, that he attempted to abolish it." (Livingston v. Jefferson, supra.) In this state the rule which Chief Justice MARSHALL adopted with reluctance, solely in deference to authority, became the settled rule. In the Brisbane Case (supra) where the authorities are referred to, the harshness and technicality of the rule are commented upon and Chief Judge CULLEN said: "Were the question an open one, I would favor the doctrine that our courts have jurisdiction of actions to recover damages for injuries to foreign real estate." (p. 434.) Many other judicial criticisms of the rule could be pointed out, but I think it is apparent from what has been said that the rule which precluded the courts of this state from granting redress in a case of this character was purely a technical rule relating to the law of venue, which was unjust in its application and rested for its support upon authority and not upon reason. It was to remedy this defect in the law of procedure, as specifically pointed out by Chief Judge CULLEN in the Brisbane case, that the legislature of this state enacted section 982-a. That section provides as follows:

"An action may be maintained in the courts of this state to recover damages for injuries to real estate situated without the state, or for breach of contracts or of covenants relating thereto, whenever such an action could be maintained in relation to personal property without the state."

The questions certified to us turn upon whether this statute is retroactive in its effect. The answer to these questions depends in turn, upon the answer to the question whether this section creates a right or prescribes a cause of action or remedy for the violation of an existing right. If the statute relates to the law of procedure and merely prescribes a remedy it is to be given retroactive effect. (Lazarus v. Metr. E.R. Co., 145 N.Y. 581;Laird v. Carton, 196 N.Y. 169.) It is conceded that the statute creates a remedy and authorizes a cause of action. The question to be determined is whether it does only this, or whether, in addition to this, it also creates a right which did not exist before. When it is read in the light of its history, which has been briefly referred to above, I think that it is apparent that it merely creates a remedy for an antecedent right. Notwithstanding the technical rule relating to the law of venue, that existed before this statute was enacted, the right of the person whose property was injured to redress was recognized, although the defect in our law of procedure precluded the person injured from seeking redress in the courts of this state. Thus, in Sentenis v. Ladew (140 N.Y. 463, 465) it was held that, notwithstanding the general rule that an action for injuries to real property must be brought in the forum rei sitæ, a judgment in an action to recover damages for injuries to real property in another state was neither void nor voidable for want of jurisdiction, and was binding and conclusive upon the parties, when the Supreme Court of this state acquires jurisdiction of the parties, and the defendant appears, answers and goes to trial without objecting to the jurisdiction of the court. The decision in this case recognizes that the plaintiff in a case of this character has a right to redress, and that the rule against entertaining such an action was merely a requirement of the law of procedure which might be waived by consent of the parties. The decision of this court in Sentenis v. Ladew (supra) cannot be disposed of on the theory that it merely determined as to an award of costs, because in the opinion of Judge MAYNARD, in which all the court concurred, it is said: "We entertain no doubt that the Supreme Court had jurisdiction to render the judgment awarded in this action. Under the Constitution it has general jurisdiction in law and equity, and of the class of actions to which this case belongs. It is not prohibited by any statute from entertaining jurisdiction of a suit for damages for injuries to real property in another state."

When one without permission enters upon the property of another and wrongfully sets fire to the buildings thereon and destroys them, it is evident that a wrong has been done, and that the right of the owner has been violated and the owner has aright to redress. It may be that the law of procedure of a particular jurisdiction fails to give a remedy when objection is made to the jurisdiction of the court, but the existence of theright to redress in such a case seems to me to be apparent. It does not follow from the fact that in this jurisdiction the owner had no cause of action or remedy when objection to the jurisdiction of the court to entertain the action is made, that the owner's right of property has not been invaded by such a wrong. The statute expressed in section 982-a assumes that the owner's rights are violated when injury is done to his real property without the state or when there is a breach of contract "relating thereto." It does not assume to create any new right but it does plainly give a remedy in this jurisdiction by authorizing the bringing of an action to vindicate the pre-existing right and to redress an existing wrong. To assert that the statute creates a right of action is merely to affirm that it prescribes a remedy by action. There is a manifest and important difference between a statute which creates a new statutory right and a statute which prescribes a "cause of action," or remedy for an existing right. For example, a statute such as Lord Campbell's Act which gave to the widow and next of kin of a person killed by the wrongful act of another the right to recover damages from the wrongdoer, conferred a right which did not exist at common law and it also prescribed a remedy by which that right might be enforced. The present statute is different. Before this statute was passed our law, in common with the law of every civilized state, recognized that a trespass upon the real property of the owner and burning down the buildings thereon in whatever jurisdiction the property was situated constituted a wrong and that such a wrongful act violated theright of the owner and that the owner had a right to redress. The law of this jurisdiction did not prohibit the granting of a remedy even in this state (Sentenis v. Ladew, supra), although owing to the technical rule of procedure governing such an action the right to redress in this state could be defeated. (Brisbane Case, supra.) The statute now under consideration attempted to correct the existing defect in our law of procedure by providing that "an action may be maintained in the courts of this state" in such a case. In so providing it created a remedy or authorized a cause of action, but it did not create a substantive right. The injury to the real property of the owner, or a breach of contract relating thereto, was a violation of the right of the owner before the statute was passed. The purpose of section 982-a, as I conceive it, was to remove the limitation upon the right to redress and to give the owner a cause of action or remedy in such cases, in this jurisdiction, for his violated right. In considering this subject we must be careful not to confuse rights with remedies for theviolation of rights. It has been well said, that "while in theory actions should correspond precisely with rights, in practice they fail to do so, and thus many rights are without the corresponding remedy. Hence, in practical jurisprudence, we have the distinction, unknown to the theory of right, between actionable and non-actionable, or, as they are otherwise called, between juridical and non-juridical rights — a distinction in theory extremely important to observe, and with reference to practice no less so; for there is no fallacy more common, or more pernicious in its consequences than to infer, from the non-existence of an action or remedy, the non-existence of the right." (Critical History of Modern English Jurisprudence by George H. Smith, p. 82.) Rights and remedies are oftentimes not co-extensive.

Thus the Statute of Limitations affects the remedy and not the right, and although the remedy may be barred the right still exists. (Johnson v. Albany S. R.R. Co., 54 N.Y. 416, 424; Crane v. Powell, 139 N.Y. 379.) It is for this reason that a new promise to pay a debt barred by the Statute of Limitations is enforceable, although the new promise is founded upon no new consideration. Many other illustrations could be given, but the one mentioned illustrates the principle sufficiently. To argue that there can be no right because there is no remedy is to invert the maxim that there is no wrong without a remedy and to give to it a meaning different from that which it has always been supposed to possess. The spirit of this maxim is that where there is a right there should be a remedy. It was in this sense that Lord HOLT pointed out in Ashby v. White (2 Lord Raym. 953; 1 Smith L.C. 464) that "it is a vain thing to imagine a right without a remedy." Mr. Broom remarks that "The maxim ubi jus ibi remedium has been considered so valuable, that it gave occasion to the first invention of that form of action called an action on the case." (Broom's Legal Maxims, p. 147.) The Statute of Westminster 2 (13 Edw. I, ch. 24), which was declaratory of the common law on this subject and was passed to quicken the diligence of the clerks in chancery, who were too much attached to ancient precedents, enacted that "whensoever from thenceforth a writ shall be found in the chancery, and in a like case falling under the same right, and requiring like remedy, no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one; and, if they cannot agree, it shall be adjourned till the next Parliament, where a writ shall be framed by consent of the learned in the law, lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors." The spirit of the maxim is that if there was no appropriate remedy one should be devised that would vindicate the right. This conception seems to me to be opposed to that which asserts that if there is no remedy it follows that the person injured has no right. Such a construction kills the spirit of the maxim and gives to it a meaning which is the opposite of that which it was intended to convey. This maxim, however, is not of universal application and its application often becomes impossible under our system of procedure, especially where jurisdictional questions are involved, but it has never been so applied as to hold that because the law of procedure gave no remedy or action that, therefore, no right exists.

The theory of our law is that every man possesses certain rights, even though the law of procedure may not provide that the violation of these rights is actionable. This is also the theory of the common law, the Roman law and the modern civil law. (1 Bl. Com. 56, 123; Savigny on Obligations, Brown's Abridgment, §§ 5-11.) Remedies or causes of action or forms of action may be bounded by territorial limitations, but rights, generally speaking, are not so circumscribed. Thus into whatever jurisdiction a man may go he has the right to his life, his liberty and his property. It may be that in certain jurisdictions the law of procedure is such that no redress can be given when these rights are violated, but the rights exist nevertheless. In the case under consideration the plaintiff had a right to his property even though it was situated in another state. The trespass by the defendant upon that property and the burning down of the buildings thereon was a wrong and because of this wrong the plaintiff has a right to redress. Owing to the defects in the law of procedure that right was not actionable, where timely objection was made, in this jurisdiction, prior to the enactment of section 982-a. This statute was enacted to give a remedy for such a wrong. The right to redress existed before the statute, but generally speaking it was not actionable. The statute, therefore, does not create a substantive right, but prescribes a remedy for a pre-existing right, which, before it was enacted, could not in all cases be redressed in this jurisdiction. As the statute creates only a remedy or cause of action it should under well-settled principles be given a retroactive effect.

In the British South Africa Co. v. Campanhia De Mocambique (supra) the House of Lords adhered to the rule of the common law which found expression in the case of Doulson v. Matthews (supra), which nullified the attempt of Lord MANSFIELD inMostyn v. Fabrigas (supra) to establish a rule in accord with reason and justice. In the opinion of Lord HERSCHELL in that case it is said that the grounds upon which the courts have hitherto refused to exercise jurisdiction in actions of trespass to lands situated abroad "were substantial and not technical." In this it is evident that the writer of that opinion is distinctly opposed to the view expressed by Chief Justice MARSHALL inLivingston v. Jefferson (supra) and by Chief Judge CULLEN in the Brisbane Case (supra).

The British South Africa Co. Case (supra) merely reiterates the rule of the common law as Chief Justice MARSHALL recognized and applied it, and decided that the rule of procedure adopted under the Judicature Act with regard to local venue, did not confer any new jurisdiction. The rule of procedure under the Judicature Act, under consideration in that case, was entirely different from the statute which is embodied in section 982-a of the Code. Moreover, as pointed out in the opinion of Lord HERSCHELL it has more than once been held that orders or rules under the Judicature Act "are rules of procedure only, and were not intended to affect, and did not affect, the rights of parties." The rule or order under the Judicature Act referred to in this case is different in its language, scope and purpose from the remedial statute embodied in section 982-a of our Code of Civil Procedure. In so far, therefore, as the British SouthAfrica Company Case (supra) is relevant to this discussion, it is so only as to the rule which prevailed prior to the enactment of section 982-a of the Code, which rule it was the purpose of this statute to change.

Moreover, there is another reason which strongly indicates that the legislature intended section 982-a as a remedial statute which should be given retroactive effect. That section not only authorizes a remedy for injuries to foreign real estate but it also provides for a remedy for the breach of contracts or covenants relating thereto. In so far as this statute relates to a remedy for a breach of contract in relation to foreign real estate it is merely declaratory of the existing law. Before the enactment of section 982-a such an action could be maintained in the courts of this state. As Chief Justice MARSHALL said: "They (the courts) have, without legislative aid, applied this fiction to all personal torts, and to all contracts wherever executed. To this general rule, contracts respecting lands form no exception. It is admitted, that on a contract respecting lands, an action is sustainable wherever the defendant may be found; yet, in such a case, every difficulty may occur which presents itself in an action of trespass. An investigation of title may become necessary. A question of boundary may arise, and a survey may be essential to the full merits of the cause; yet these difficulties have not prevailed against the jurisdiction of the court. They have been countervailed, and more than countervailed by the opposing consideration, that if the action be disallowed, theinjured party may have a clear right without a remedy in a casewhere the person who has done the wrong, and who ought to makethe compensation, is within the power of the court." (Livingston v. Jefferson, supra, at p. 664.)

It will not, I think, be argued that the enactment of this statute took away the right which previously existed to bring an action in this state for the breach of a contract relating to foreign real estate which occurred prior to the enactment of section 982-a. As to such actions, therefore, this statute is clearly retroactive. I think that the legislature intended by this statute to place the remedy for injuries to foreign real estate upon an equality with the remedy for a breach of contract relating to such real estate. It seems unreasonable to assume that the legislature intended that that part of the statute which relates to breach of contracts relating to foreign real estate should be retroactive but that that part of the statute which relates to injuries to foreign real estate should not be retroactive. Such an interpretation would be as artificial as the original distinction between local and transitory actions. In many cases these artificial distinctions are so embedded in our law that no matter how unjust and technical they may be effect must be given to them by the courts. A different situation is presented when the courts have pointed out, as they have repeatedly done in this class of cases, the technicality and injustice of the rule and the legislature has deliberately endeavored to correct the injustice. In such cases the statute should be interpreted in the remedial spirit that actuated the legislature rather than in the technical spirit which gave rise to the mischief which the legislature has sought to remedy. Nor can I agree with the intimation contained in the prevailing opinion that it would follow as a consequence of giving this statute a retroactive effect that a remedy would thereby be provided "for ancient and forgotten wrongs." Section 982-a does not give a remedy in every case but only "whenever such an action could be maintained in relation to personal property without the state." When this provision of the statute is read in connection with section 390-a of the Code of Civil Procedure I think it becomes evident that such an action could not be brought when it was barred by the law of the state where the injury was committed. If the statute is construed to be retroactive it merely makes actions for injuries to foreign real estate subject to the same Statute of Limitations that now applies to actions for injuries to personal property and to actions for breach of contracts relating to foreign real estate. I can hardly assume that this is such a consequence as to have deterred the legislature from making the statute retroactive as to injuries to foreign real estate. In any event the question whether the statute should be given a retroactive effect cannot be affected by the Statute of Limitations which may be applicable to such an action. The questions certified to us are based upon the issue raised by the demurrer to the complaint upon the grounds of insufficiency and misjoinder of causes of action. These questions make no reference to the question of the Statute of Limitations or whether if a cause of action is alleged in the complaint it is barred by the Statute of Limitations. The questions whether the complaint states a cause of action and whether there has been a misjoinder of causes of action should be determined without regard to whether that cause of action is barred by the Statute of Limitations. It is time enough to determine that question after it has been held that the complaint states a cause of action and the Statute of Limitations has been pleaded as a defense. (Crane v. Powell, supra.) If we assume that under our decision in Reilly v. Sicilian Asphalt Paving Company (170 N.Y. 40) the injury to the personal property and to the real property by a single act of the defendant gave rise to two causes of action, it is nevertheless true that both causes of action arose out of the same transaction, and, as they do not require different places of trial, they are not improperly united.

Section 982-a of the Code is a remedial statute and it should be liberally construed so as to effectuate its purpose, instead of placing upon it a construction which perpetuates as far as possible the technical and unjust rule it was designed to abrogate.

In my opinion the order of the Appellate Division should be affirmed, and the 1st, 2d 3d, 4th and 5th questions answered in the affirmative, and the 6th and 7th questions answered in the negative, and in this view of the case it is unnecessary to answer the 8th question.

WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN and HOGAN, JJ., concur with CARDOZO, J.; SEABURY, J., reads dissenting opinion, and CHASE, J., concurs.

Order reversed, etc.