
    Bussing and Bussing vs. Bushnell.
    An attorney employed merely to take measures for distraining, cannot give the notice and make the affidavit of rent due, under 1 R. S. 746, § 12, especially if he knows nothing of the facts except from hearsay.
    The notice and affidavit must be served before the officer sells, or the landlord will acquire no preference over the execution creditor.
    The case of Beekman v. Lansing, (3 Wend. 446,) commented on and explained.
    A distress warrant delivered to the officer holding the execution, will not answer as a substitute for the notice required by statute.
    The statute is in derogation of the common law, and must be strictly pursued. Per Bronson, J.
    Goods purchased of a tenant, though with knowledge of rent being due, are not liable to distress after their removal from the demised premises.
    Bushnell, the defendant, was tenant of certain premises in Geneva, and owed rent for the same to Cornelius Bogert of the city of New-York. On the 15th of August, 1843, the sheriff levied the execution in this case upon goods of the defendant on the demised premises, which were subject to distress for rent; but he did not remove the property. The sheriff also levied upon other property off the demised premises. On the 15th of November following, the defendant assigned all his property, in trust for the payment of his debts, to Frederick A. Stirling. Stirling, having notice that rent was due, immediately took possession, and removed the goods from the demised premises. On the 21st of November, the agent of Bogert, residing at Geneva, issued a distress warrant to the sheriff who had the execution; but nothing was done under the warrant, for the reason that the property had been assigned and removed. On the 9th of December, the sheriff sold that portion of the property which had not been on the demised premises and was not liable to distress, and paid over the proceeds to the plaintiffs in the execution, leaving a small balance still due them. He also sold the property which had been removed from the demised premises by Stirling, for $155, a sum exceeding the balance due on the execution; and the avails of that property still remain in the sheriff’s hands. On the morning of the 9th, and before the sale was made, Mr. Folger, who had previously been employed as an attorney by the agent to issue the distress warrant, gave notice to the sheriff of rent due, and made an affidavit of the facts as he had heard them from the agent, who was absent at the time the notice was given. After the sale, the agent returned, and, on the 15th of -December, gave the usual notice, made affidavit, and required the sheriff to pay over the $155 to him. On this state of facts, Bogert, the landlord, now claimed that the $155-—the avails of the property which was subject to distress at the time the execution was levied—should be paid to him, in preference- to either Stirling or the plaintiffs. The plaintiffs claimed to the extent of the balance due on the execution. Stirling, the assignee, agreed that the plaintiffs must be first paid, but insisted on his right to the balance of the $155, in preference to the landlord. It was consented that the court make such order between the parties as should be deemed proper.
    
      A. Taber, for Bogert, the landlord.
    
      M. T. Reynolds, for Stirling and the plaintiffs.
   By the Court, Bronson, J.

Notice of rent due must be given and the necessary affidavit made by the landlord or his agent. (1 It. B. 746, § 12.) Mr. Folger was not in a condition to give a good notice, and make the necessary affidavit. He was not the agent of the landlord for that purpose. He had only been employed as an attorney, by the agent of the landlord, to take measures for a distress; and he knew nothing about the facts beyond mere hearsay. The notice given on the 9th of December, before the sale, must therefore be laid out of the case.

At common law, the landlord could only distrain while the goods remained on the demised premises, and before they had been seized by an execution creditor. But now, by statute, the landlord may follow and distrain goods which have been fraudulently removed; (2 R. S. 502, § 15 to 18.) And he may be preferred over the execution creditor by giving notice to the officer of rent due before the goods are sold. (1 id. 746, § 12 to 14.) Here, the notice by the agent was not given until after the sheriff had sold; and it was then too late. In Beekman v. Lansing, (3 Wend. 446,) notice after the sale, and while the money remained in the sheriff’s hands, was held sufficient. But that was a decision under the old statute, which did not in terms require a notice. (1 R. L. 437, § 12.) The courts held that there must be a notice; but as they settled the whole practice under the law, they held also that notice after the sale, and before the money had been paid over, was sufficient. Since that time the whole matter has been regulated by the legislature, and the statute not only requires a notice, but that it should be given before there has been a sale of the goods. As this statute is in derogation of the common law, it must be strictly pursued, or the landlord will acquire no rights under it.

It is said, the sheriff had notice before the sale that rent was due, by means of the distress warrant which was delivered to him on the fifteenth of November. But the notice required by the statute is something more than mere knowledge that rent is in arrear. It is in the nature of legal process for the collection of the debt. (Millard v. Robinson, 4 Hill, 604.) When a proper notice is given, the tenant may prevent a sale by executing a bond to the landlord in the prescribed form. (1 R. 8. 746, § 15.) The sheriff could not justify a sale to pay the landlord, as well as the execution creditor, merely because he happened to know, by means of a distress warrant or otherwise, that rent was in arrear.

The landlord can claim nothing under the notice of the fifteenth of December, because it came too late. That settles the question between the landlord and the execution creditors. The plaintiffs must be paid the balance of their debt, whether the landlord gets any thing or not. The plaintiffs must also be paid as against Stirling, the assignee of the defendant, because they had acquired a lien by the levy of the execution prior to the sale of the goods. The assignee took the property subject to the lien.

The only remaining question is between the landlord and Stirling, the purchaser. The landlord had no remedy by distress, for the reason that the goods had been sold by the tenant for the payment of his debts, and the assignee had taken possession and removed the property from the demised premises. At the time of the removal, the goods did not belong to the tenant, and the landlord cannot follow and distrain the goods of another person, although they were subject to ■ distress while on the demised premises. And it makes no difference that the purchaser knew the rent was in arrear. (Frisby v. Thayer, 25 Wend. 396; Martin v. Black, 9 Paige, 641; Coles v. Marquand, 2 Hill, 447.) And besides, the landlord did not in fact distrain. He issued a warrant; but nothing was done under it.

If the notice given after the removal of the goods, but before the sale, had been sufficient, there might have been some difficulty in settling the conflicting claims of these three parties. But that notice was not given by the proper person ; and the other came too late. As the landlord acquired no priority over the execution creditors, I see no principle upon which he can be preferred to Stirling. As against a purchaser from the tenant, the remedy of the landlord is by distraining the goods before they are removed from the demised premises.

The result is, that the plaintiffs must be paid the balance remaining due on the execution; and the residue of the money must go to Stirling. The landlord gets nothing.

Ordered accordingly.  