Opinion
February Term, 1897.
Esek Cowen, for the plaintiff.
James M. Gifford, for the defendants.
The sole question here is as to the validity of the defendants' counterclaim. Were they, upon the agreed facts, entitled to recover from the plaintiff, in his representative capacity, the rent payable upon the first day of January? The plaintiff, being an assignee for the benefit of creditors, had an election to accept or decline the lease. He had a reasonable time to ascertain whether this lease could be made available for the benefit of the creditors whom he represented. If, thereupon, he found that the term, burdened with the payment of rent and the performance of other conditions, was an interest of no value; that instead of being a benefit it would probably diminish the amount to which the creditors would otherwise be entitled, his duty was to decline the lease. If, however, his investigation led him to believe that the lease was a valuable asset, he could, as, in fact, he did, accept it. ( Journeay v. Brackley, 1 Hilt. 447.) Upon its acceptance it became a part of the assigned estate, held by the assignee in his trust capacity subject to the covenants contained therein. While it was so held the assignee, in his representative capacity, was chargeable with all the conditions attached thereto. It was not his contract, either personal or as representative, and his liability upon the covenants was, consequently, not contractual. That liability was the liability of his assignor's estate, legally resulting from its acquisition of the lease as an asset. It was, therefore, the plaintiff's liability as assignee.
In the present case the assignee accepted the lease and utilized the demised premises for the benefit of his cestuis que trust. Privity of estate was thus established, and as a sequence the plaintiff's liability as assignee for the rent falling due during the period of his occupation. This was a liability which ceases upon his eviction by the lessor, or upon his assignment of the lease to a third person, with surrender of possession. His liability while in possession, however, was not for use and occupation ( Kiersted v. Orange A.R.R., 69 N.Y. 343), or upon a quantum meruit (as erroneously held in Foster v. Oldham, 4 Misc. Rep. 201, and Smith v. Wagner, 9 id. 122), but upon the covenants of the lease. "Where a lessee assigns his whole estate," said Judge RAPALLO, in Stewart v. Long Island R.R. Co. ( 102 N.Y. 607), "without reserving any reversion therein in himself, a privity of estate is at once created between his assignee and the original lessor, and the latter has a right of action directly against the assignee, on the covenant to pay rent, or any other covenant in the lease which runs with the land." This liability results, not from privity of contract — for there is no such privity — but solely from privity of estate. The lessee's estate is burdened with the covenants running with the land, and the assignee takes the term for this trust estate subject to the burden. It follows that the plaintiff is liable only upon such covenants as matured during the period of his possession. Upon the agreed state of facts it appears that one of the covenants was to pay the January rent upon the first day of that month. The lease was not assigned until the next day. Consequently the assignee, as such, was chargeable with no primary liability for the January rent, upon his assumption of the lease. That rent was a debt of the assignor, existing at the time of the execution of the assignment, and provable as such against the assigned estate.
It is, however, suggested that the first day of January fell on Sunday, and that, therefore, the obligation accrued on the next day (Monday, January second), which was the day when the assignment was executed and delivered. Nothing of the kind appears in the record, and the suggestion is made for the first time upon this appeal. The stipulation is explicit that the assignor was obligated to pay the rent for the month of January on the first day of that month. It was upon this agreed fact, and upon that alone, that the learned trial judge made his ruling. We are asked to supplement this fact with another fact which has never been agreed upon, and to do so by taking judicial notice of the coincidence of the first day of the week with this day of the month. We do not think this would be proper upon the present appeal. The matter was not called to the attention of the court upon the trial, nor was the court there asked to take judicial notice of the fact now suggested, or to consider any fact in addition to those agreed upon. That the first day of January fell upon Sunday was a fact like any other fact. It is true that it was not a fact which the defendants were bound to prove in the ordinary way, but it was none the less a fact which they were required — if they desired its consideration — to place in some way before the court and jury. They were, at least, bound to bring the fact to the attention of the court, and to claim for it judicial notice. As they did not do this, the fact is not in the case, and it cannot be got into the case without giving the stipulation an effect not contemplated by the parties when they entered into it. It is our duty to give the appropriate judgment solely upon those facts which the defendants chose to present below, and which alone appear in the record. We can neither add independent facts, nor additional facts tending to vary the ordinary effect of those specified in the stipulation.
We may add that the court is not invariably bound, sua sponte, to take judicial notice of whatever ought to be generally known. Attention must first be called to the fact, and even then, the party asking the court to take judicial notice thereof must, at the judge's request, furnish the proper books or documentary evidence wherewith to refresh his recollection. Where the memory of the judge is at fault, he may refuse to take judicial notice of the fact, unless such books or documentary evidence are produced. (Steph. Dig. Law of Ev. art. 59; Scheffler v. Minneapolis St. Louis Ry. Co., 32 Minn. 521.) But the whole matter is within the judicial discretion. The judge is not obliged to take judicial notice of the fact, but is at liberty to do so in his discretion. ( Hunter v. N.Y., O. W.R.R. Co., 116 N.Y. 621.) If, however, he does take judicial notice of such fact, he may inform himself of it in any way which he may deem best. (1 Greenl. on Ev. [15th ed.] 15, and cases cited in note.)
How the trial judge here would have acted had the coincidence in question been brought to his notice, we cannot know. There was, as we have seen, no reference thereto before him. Nor was there any offer of an almanac or other chronicle, either upon the trial or upon even this appeal. The effort now is to induce us to ignore these conditions and upon this appeal to supplement carefully formulated facts which were reduced to writing, and upon which the decision under review was made, with another fact to which the parties have never agreed and to which they might never have agreed.
We think it would be unjust to inject this other fact into the stipulation of the parties without their consent, or to decide the controversy upon anything save the precise facts upon which they have specifically agreed. Upon those facts, we think, the counterclaim here should be dismissed, and judgment directed for the plaintiff for the sum of $811.16, with interest from the 27th day of January, 1894, with costs.
VAN BRUNT, P.J., RUMSEY and PATTERSON, JJ., concurred; WILLIAMS, J., concurred in result.
Judgment directed for plaintiffs for the sum of $811.16, with interest from January 27, 1894, with costs.