Aaron Henry, plaintiff in error, against John C. Cuyler, and Hannah his wife, defendants in error.
Where the plaintiff suffered a judgment to pass against him, by deVault, on demurrer, in a ease involving precisely the same question which had before been argued and decided by the court in another cause, between different parlies, and, by mutual consent, a ease was made and brought to this court, on a writ of error; this court refused to hear the cause, and ordered the writ of error to be quashed; for no question, not considered and decided in the cause in the court below. ean be heard in this court, which possesses only an appeU ¿¿¿^jurisdiction.
IN ERROR to the Supreme Court. John Matey, by an indenture, dated the third day of November, 1809, demised to Aaron Henry, of the city of New-York, a house, store, *and lot of ground, with the appurtenances, at the north-east comer of Water street and Beekman slip, for a term of six years from the first day of May, 1810, at an annual rent of 450 dollars. The lease contained the following covenant: “ and the said Aaron Henry, for himself, his heirs, executors, administrators, and assigns, covenants and agrees with the said John Matey, his heirs, executors, administrators and assigns, well and truly to pay the rent aforesaid, in the manner, and on the days for that purpose herein above expressed and appointed ; and also all, and all manner of taxes, charges or assessments, which shall, or may in any wise be lawfully assessed, charged or imposed on the said demised premises, or any part thereof, or on the occupant or occupants thereof, during the continuance of the aforesaid term.”
Henry entered into possession of the demised premises, and continued in possession to the end of the term.
In May, 1815, application was made, under the statute, by the mayor, alderman, and commonalty of the city of New-York, to the Supreme Court, for the appointment of commissioners to open Fair street into Beekman slip, where the premises are situated. Commissioners were, thereupon, appointed to estimate the expense of opening said street, and to make a just and equitable assessment thereof among the owners or occupants of all the houses or lots intended to be benefited by the improvement. The commissioners made and certified their estimate, which was confirmed by the Supreme Court, on the seventh of August, 1815. In this estimate, the premises mentioned were assessed and charged with the sum of 4 17 dollars 50 cents. Henry, the lessee, having refused to pay the assessment, Cuyler and his wife, (in right of his wife,) the heir at law of the lessor, John Matey, who died the 30th of October, 1812, were compelled to pay the same to the corporation of the city of New- York.
Under these circumstances, Cuyler and his wife brought an action of covenant on the lease, in the Supreme Court, against lfmry, during the continuance of the term, the writ being returnable on the 13th of January, 1816. The declaration set forth all the facts above mentioned, alleging #the breach in the non-payment of the assessment of 447 dollars 50 cents. *370To this declaration Henry demurred, and the plaintiffs joined in demurrer, on which there was a judgment by default for Cuyler and his wife, in August term, 1816. The damages were afterwards assessed, and final judgment entered in October, 1816, in favor of the plaintiff, for 586 dollars 14 cents, against Henry.
Nov. 8th, 1819.
The above case was agreed upon by the counsel on both sides, for the purpose of bringing the question as to the construction of the covenant, (which it was supposed was deckled by the Supreme Court, in the case of the Mayor, &c. of Xnc-York against Cushman, 10 Johns. Rep. 96. and in Oswald v. Gilfert, 11 Johns. Rep. 443.) in review before this court.
J. Hamilton, for the plaintiff
in error, moved to bring on the cause.
Van Ness, J.
The question raised in this cause was never brought before the Supreme Court for its consideration. It is true, that a similar question was decided by the Supreme Court in January term, 1813, in the case of The Corporation of New-York v. Cashman, (10 Johns. Rep. 96.) As judgment was entered by default on the demurrer in this cause, without argument or discussion, or any examination of the question, the judges of the Supreme Court have no reasons to assign for the judgment.
The Chancellor,
This court cannot take notice of a cause which has never been brought before the court below, for its consideration and judgment, although they may have solemnly decided a similar question in some other cause. This court, has jurisdiction merely to correct errors in the judgments of the Supreme Court and the Court*of Chancery, in causes brought here on writs of error or by appeal. That this case has been settled and brought here by the consent of both parties, can make no difference. Though consent may take away error, it cannot give jurisdiction. In the case of Sands v. Hildreth, (12 Johns. Rep. 493.) this court, in 1815, decided, that no appeal lies from a decree #of the Court of Chancery, where the defendant did not appear at the hearing, after regular notice, but voluntarily suffered judgment to pass against him by default. The same question again arose in 1816, in the case of Gelston v. Hoyt, (13 Johns. Rep. 561. 576.) in which there was a demurrer to two of the pleas, and when the cause was called in the Supreme Court, the counsel for the defendant declined arguing the demurrer, and judgment.was entered for the plaintiff, as of course. This court held, that the defendants were precluded from arguing here any questions arising on the demurrer ; that to discuss and consider matters not brought before the court below, or which were abandoned by the party, would, in effect, be assuming original
*371jurisdiction. In delivering my opinion in that case, I stated my reasons at large, for not taking notice of a question not discussed nor considered in the Supreme Court. l am clearly of opinion, that the writ of error in this case ought to be quashed.
Spencer, Ch. J., Van Ness, J., Yates, J., Platt, J., and Woodworth, though they declined taking any part m the decision of this particular case, expressed their opinions as to the general question of practice, and the jurisdiction of the court, in which they fully concurred with the chancellor. Their reasons were substantially the same as those stated in the case of Gelston v. Hoyt.
Skinner, Senator,
Every case must, and ought to, depend on its own particular circumstances. The very question which arose in this case had been, before, in two other causes, solemnly argued and decided by the Supreme Court. It would have been useless, therefore, to have attempted to argue it again in that court. It was not to be supposed that the Supreme Court would overturn a judgment which they had so lately, and so deliberately and solemnly pronounced. The question, then, is not one raised for the first time, and which the court below have not considered and adjudged. We have the judgment of that court upon it; and the reasons of that judgment are to be found in the reports of the cases which have been mentioned. I agree, that if a party, #in the first instance, will pass by the Supreme Court without presenting, for their consideration and judgment, the questions arising in a cause, he ought not to be heard in this court. But when precisely the same question has been already fully discussed and considered by the court below, though in a different cause, it seems to me to form an exception to the general rule, and I see no reason why we may not, if we think there is error in this respect, apparent on the record, a transcript of which is sent here, proceed to correct that error. The direction of the constitution, that the judges are to assign their reasons here, is not that which gives this court jurisdiction. That provision is merely for the purpose of affording light and information as to the points decided in the Supreme Court. I am of opinion, therefore, that, the writ ought not to be quashed.
P. Livingston, Senator.
I concur in the general rule as laid down by the chancellor and judges ; but there may be exceptions to the rule. Suppose the case of a fine levied, where the Supreme Court may not have any reasons for their judgment to state, is the party aggrieved to be deprived of his writ of error ? In the case of Cheetham v. Tillotson, (5 Johns. Rep. 430. 4 Johns. Rep. 499. S. C.) a judgment was rendered by default, in the Supreme Court, in a suit for a libel, and the *372principal ground assigned for error was not raised or decided uPon ⅛ that court; yet this court heard the cause, and reversed the judgment of the court below. , I admit, that when the door of the Supreme Court, or of the Court of Chancery, is open to the party, and he does not choose to avail himself of judgment of those tribunals, but, waiving all discussion of his rights there, brings his case here, to be examined in the first instance, he ought not to be heard in this court. But I think that this case is an exception.
Hammond, Senator,
said, that this case was distinguishable from those cited, and that it ought to be heard.
H. Yates, Senator,
said, he thought the present case was an exception to the general rule. Suppose a verdict had #been found for one hundred dollars damages, on which a judgment had been entered for ] ,000 dollars, and a term had elapsed, so that the Supreme Court, according to their rules of practice, would not interfere, ought the party to be remediless ?
Spencer, Ch. J.,
observed, that the objection now made was not raised in the case of Cheetham v. Tillotson,
A majority of the court (the chancellor and fifteen senators) being of opinion, that the writ of error ought to be quashed, the following judgment was entered; “It appearing to this court, from the case agreed upon by the counsel for the respective parties, that the plaintiff in error suffered judgment upon demurrer to be entered against him by default, in the court below ; it is thereupon ordered and adjudged by this court, that the writ of error in this cause be quashed, and that the plaintiff in error pay to the defendants for their costs in this court to be taxed ; and it is further ordered and adjudged, that the record be remitted to the Supreme Court, to the end, that the defendants may have execution, as well for such costs, as for the damages and costs recovered in the said court, and also interest on the said judgment from the time it was rendered, to be taxed with the costs in this court.”
Writ of error quashed,