author: Talcott, P. J. :

text:
    JONAH D. DECKER, Respondent, v. JAMES KITCHEN, Appellant, Impleaded, etc.

      Practice — a defendant allowed, by an order sustaining a demurrer, to amend three defenses in his answer, may amend one only — when a plaintiff cannot return an. answer served upon him — what not an irregularity within Rule 37 — under the Gode of Givil Procedure, a party cannot .treat an answer as frivolous,- and enter a judgment as on a default.

      The plaintiff having demurred to an answer interposed by the defendant, the latter, within the time allowed by law, amended it. The plaintiff then procured an order striking out, as sham, false and frivolous, the second defense set up in the amended answer, and demurred to the first, third and fourth defenses contained therein. Afterwards the defendant, without procuring leave from the court so to do, served a third answer, setting up in due form his discharge in bankruptcy, this being the same defense insufficiently pleaded in the third defense of the amended answer. The third answer was returned by the plaintiff, on the ground that it could not be served without the leave of the court.
    Thereafter the demurrer was sustained, the defendant being allowed to amend the said first, third and fourth defenses, within twenty days, on payment of the costs. Within that time, the defendant paid the costs, and served an answer, setting up simply his discharge in bankruptcy, such answer being the same one already served and returned by the plaintiff. The plaintiff - returned this answer as unauthorized by the order sustaining the demurrer, and because it had already been served and returned; and thereafter entered a judgment in his favor, by default, as for want of an answer.
    On a motion by the defendant to vacate the judgment and compel the plaintiff to accejot the answer last served. Held, that such answer was properly served and that the plaintiff had no right to return it.
    That the entering of the judgment by the plaintiff, after the service of the said answer, was not a mere irregularity, within the meaning of that term, as used in Rule 87, requiring the irregularity complained of to be specified in the notice of motion.
    Since the adoption of the Code of Civil Procedure the plaintiff can no longer treat an answer as a nullity and entera judgment as upon a default; his only remedy in such a case is to apply to the court or a judge thereof, upon notice, as prescribed in section 587 of the said code.
    Appeal from an order made at a Special Term, denying a motion made by the defendant for leave to renew a motion to set aside the judgment entered herein, and to set aside such judgment in case such leave should be granted.

      Theodore Bacon, for the appellant..
    The motion to vacate the judgment was improperly denied, when first made. It was an abuse of Rule 37, not an application of it; to hold that it covered the case of a judgment entered without the shadow of a right. {Jackson v. Smith, 16 Abb. Pr. 201, 203; Winnebrenner v. Fdgerton, 30 Barb., 185; Kellogg v. Howell, 62 Id., 280; Mcvrguat v. Mwl/oy, 9 How. Pr., 460.)

      W. F. Cogswell, for the respondent.
    A conclusive answer to the defendant’s application and to this appeal is the fact that the answer proposed to be served is palpably frivolous. That answer sets up a discharge in bankruptcy. Tlie action was brought against the defendants for an indebtedness arising in a fiduciary capacity, and the discharge in bankruptcy is no defense. The plea was properly treated as a nullity, not -being adapted to the action. (1 Burrill’s Practice, 180 ; Ycm Veehten v. Cowell, 1 Hill, 203 and eases cited; Bump on Bankruptcy, § 5117, p. 730, 9 ed.; Whitaker v. Cha/pman, 3 Lans., 155 ; In re Seymour, 6 Blatchf., 292.) The order is not appealable. {Hank of Hara/na■ v. Morse, 5 Hun, 626 ; 34 N. Y., 555 ; 35 Barb., 650 ; 44 N. Y. Super. Ct., 144.)
   Talcott, P. J. :

The appeal in this case is in form from an order of the Special Term of Monroe county, denying the defendant’s application for leave to renew a motion to set aside a judgment for $4,828,07, entered as upon the default of the defendant, as for want of an answer; and in case leave to renew be granted that then the motion to set aside said judgment be renewed. In substance, the motion was to set aside the judgment.

The proceeding' was commenced against the defendant, James Kitchen, by a summons to show cause why he should not be bound by a judgment obtained in an action against both defendants as copartners, in the action originally commenced against James Kitchen and Frederick William Horn in the same manner as if the said Kitchen had been originally summoned in the said action. The defendant Kitchen answered the affidavit and summons of the plaintiff. This answer having been demurred to by the plaintiff, the defendant Kitchen, within the time allowed by law, as of course, amended it. Thereupon the plaintiff moved at a Special Term of this court, held in Monroe county, May 4, 1878, to strike out the second defense contained in said amended answer as sham, false and frivolous. The motion to strike out the second defense as sham, false and frivolous was granted. The second defense consisted of a denial of all knowledge that a judgment founded on the joint contract of the defendant and Horn as partners was entered as alleged. The order striking out the said second defense contained an authority to amend the same by “putting in issue the recovery of tbe said judgment. The plaintiff also demurred to the first, third and fourth defenses contained in the said answer. In the mean time, and after notice of motion to strike out the second defense had been given, and after the plaintiff had demurred to the first, third and fourth defenses, the defendant undertook further to amend his answer by serving an answer that he had been discharged in bankruptcy, which was set up in due form of law, it having been insufficiently set up in the third defense to which the plaintiff had demurred; the answer so attempted to be served was rejected by the plaintiff and returned to the defendant, on the ground that the defendant had once before amended his answer, and served the same; and the plaintiff having demurred thereto and moved to strike out certain portions thereof, the defendant was not entitled to serve another answer without leave of the court, and paying the costs of the demurrer and the motion to strike out.

The demurrer to the first, third and fourth defenses came on to be argued and was decided at a Special Term in.Monroe county, on August 30, 1818. The said demurrer to the first, third and fourth answers was sustained, but the defendant was permitted to amend the said first, third and fourth defenses within twenty days from the date of the order sustaining the demurrers thereto, on the payment of the costs of the demurrer. The third defense thus demurred to was intended to set out the discharge of the defendant Kitchen, under the Bankrupt Act by the District Court of the United States for the district of New Jersey, but the same was imperfectly and insufficiently pleaded in the said third defense set up in the answer demurred to, and the answer which the defendant attempted to serve on the plaintiff after the latter had given notice of the motion to strike out, and had demurred to the answer, was an answer setting out and alleging in due form of law the said discharge in bankruptcy, and containing no other matter. After the decision of the demurrers, and within twenty days after the date of the order made thereupon, the defendant paid to the plaintiff the costs of the said demurrers, amounting to $109.41; and at the same time, under the leave to amend, granted by the said order, served upon the plaintiff an amended answer, setting forth in due form of law the discharge of tbe defendant under tbe Bankrupt Law by tbe United States District Court of New Jersey, but sought to amend in no other respect. Tbe copy of answer so served may have been, and probably was, tbe precise same paper which bad been once before served on tbe plaintiff, after tbe latter bad given notice of bis motion to strike out, and bad demurred to parts of tbe said answer, and which bad been rejected by tbe plaintiff and returned to tbe defendant. Tbe said copy of answer served under the leave given by the order sustaining tbe demurrers was again rejected by tbe plaintiff, although be received and retained tbe $109.41 paid to him under tbe same order as tbe costs of tbe said demurrers. The plaintiff returned the said copy of answer so served, with tbe following indorsement, viz.:

Take notice I return herewith said copy of answer to complaint served on me last evening, and decline to receive tbe same upon tbe grounds and following objections, to wit:

“ 1. The same has been once served before and rejected, with certain objections therein stated, and no application has been made to tbe court or granted compelling plaintiff to receive said copy answer notwithstanding tbe said objections thereto; and said defendant by retaining tbe same after such return thereof, for so long a time, has accepted and acquiesced in such return, and tbe objections made thereto, and said copy answer is no longer of any avail, and is out of tbe case and of no force or effect.

“ 2. It is not a compliance with tbe order of August 30, 1878, served the same day, sustaining plaintiff’s demurrer to defendant’s answer, or in any particular.

“ 3. Tbe said copy answer is void and nugatory.

“ Dated Biíocicpoet, N. Y., September 20, 1878.

“ J. D. DECKER, Plaintiff’s Attorney.

“ To JohN IT. KitoheN, Defendant’s Attorney.”

The objections to tbe reception of the answer were not well founded, and in fact it is difficult to guess for what reason tbe copy of tbe answer so served was in fact rejected, unless the plaintiff believed tbe answer to contain a valid defense and sought by returning tbe same to complicate tbe matter in tbe hope in some waw to avoid tbe answer. Nothing further appears to have been done in the ifiatter until December 26, 1878, when the plaintiff filed a long affidavit and entered a judgment in the clerk’s office of the county of Monroe against the defendant for $4,828.07, as upon a default foí want of an answer. The affidavit 'which was filed by the plaintiff upon entering his said judgment was made by J. D. Decker, Esq., who had appeared in person as the plaintiff’s attorney. It contains a long recital of tbe proceedings in the case, and concludes with the following statement, attempting to show the defendant’s default for want of an answer; to wit,

Deponent further says that he has not since received nor been served with any new amendatory pleading or answer that- amends ■the firsts third and fourth defenses in the said amended answer, the demurrer to which the court sustained as aforesaid, and that more than twenty days have elapsed since the decision of the eorrrt sustaining said demurrer, and since a certified copy of the order sustaining said demurrer was personally served as aforesaid, and that said defendant has suffered a default and made no new amendatory answer pursuant to the permission so granted in said order.”

From this, affidavit it appears that the judgment entered by the plaintiff was without any application to the court, and was entered as by default for %oa/nt of an a/nswer after the decision of the court upon the demurrer; and furthermore, that the plaintiff assumed to disregard and reject the answer served by the defendant, either because the answer did not purport to amend any but the third answer demurred to, or because it was the same copy of answer which the defendant had ineffectually endeavored to interpose after the plaintiff had noticed the motion to strike out, and had demurred to the first, third and fourth defenses. Neither of which grounds for rejecting and returning the answer was tenable.

The defendant, in availing himself of the leave to amend given by the order sustaining the demurrers, was not bound to attempt to amend each of the defenses demurred to; and the fact that the copy of the answer served by the defendant was the same copy which the defendant had theretofore ineffectually attempted to serve on the plaintiff, and which at that time had been properly rejected and returned by the latter, constituted no valid objection to the service of the same copy after it became authorized by the order of the court. After the entry of the judgment by the plaintiff, the defendant at once gave notice of a motion at the Special Term upon affidavits and other papers for an order vacating and setting aside the judgment, and requiring the plaintiff to receive nuno fro tuno the answer served upon the plaintiff cotemporaneously with payment of the costs of the demurrer, on September 19, 1878. From the affidavits upon which this motion was made it distinctly appeared that the ground of objection to the judgment was that an answer had been served and that the defendant was not in default for want of an answer when the judgment was entered; but the notice of the motion did not specify this or any other matter as an irregularity in the entry of the said judgment under the 37th Rule of this court. It appears that Mr. T. P. O’Kelly was in attendance at the term at which the said motion was to be made, but happened not to be present when, in the order of business, the motion would have been reached, whereupon the plaintiff took a denial of the said motion, by default, and two sets of papers for the same motion having been served on the plaintiff he took two orders denying the said motion, as of two motions with $10 costs each. And thereupon the defendant, on his own affidavit and the affidavit of Mr. O’Kelly, offering an excuse for the default at the Special Term, moved to open the said default. On April 30, 1879, the Special Term ordered the default to be opened on payment of $10 costs, and $10 costs of oj>posing the motion to open the said default, but the said order expressly denied leave to serve any additional papers or affidavit of merits for the purposes of the said motion. The said costs were paid, and the said motion was made accordingly. The motion was denied, with costs, upon the ground that it was founded on alleged irregularities which were not particularly specified in the notices of the said motion. The motion was, however, denied, without prejudice to an application for leave to renew the same.

The defendant paid the costs and again noticed a motion for the next Special Term, this time specifying the supposed irregularities,” that the entry of the said judgment by the plaintiff against the defendant Kiteben was" irregular, in that said judgment was entered when an answer bad been regularly and in due time served upon tbe plaintiff as attorney in person; knd that at the time said judgment was entered the above entitled action was regularly and duly at issue upon the complaint and answer.” This motion was. afterwards, and on July 31, 1879, denied absolutely with costs, and from the order thereupon made the' said defendant Kitchen appeals to this court. This order, though in form an order denying leme to renew the motion, in fact, involved the entire merits of the motion to vacate and set aside the judgment, the judge at the Special Term saying amongst other things, in a short opinion contained in the appeal book, “ The sole ground on which the defendant now stands is the alleged irregularity of the plaintiff in entering the judgment.” . . ■ . “ There is not a word of explanation of the omissions in the original motion papers by which the court was precluded from granting the relief sought in any form, so that if the deeision of that motion was eorrect this motion ought to be denied.”

The fundamental error under which the judge who had heard both motions at the Special Term labored, we think, was in considering and treating the entry of the judgment in this case as merely irregular, and thus being within the provisions of Rule 37 of this court, which provides that when the motion is for irregularity the notice shall specify the irregularity complained of. We.think the motion to set aside the judgment in this case was not founded in a mere irregularity, but there was a total absence of authority to enter it, and it was absolutely void as between the two parties when attacked in proper form. The judgment was entered m violation of law, and “ no mere question of practice was involved in such an act, but a substantial grievance, which the defendant was entitled to have remedied without regard to forms or technicalities.” (Seo Jackson v. Smith, 16 Abb. Pr., 201; Winnebrenner v. Edgerton, 30 Barb., 185; Kellogg v. Howell, 62 Id., 280; Marquat v. Mulvy, 9 How. Pr., 460.) And considering the motion as a motion for leave to renew the motion to vacate the judgment, we think the motion should not have been denied, but should have been granted. It was claimed by tlic counsel for the respondent on this appeal that the answer being bad the plaintiff had a right to treat it as a nullity and enter judgment. This doctrine is stated in Burrill’n Practice, at page 180, as apjdying to a plea obviously bad and amounting to a nullity — such as a plea of non-assumpsit to a declaration in debt — and authorities are cited by Mr. Burrill which seem to countenance this practice in certain cases; but we think the practice, even to a limited extent, has become obsolete since tlxc provisions of the Code of Civil Procedure. The Code of Civil Procedure provides (§ 531) if a demurrer, answer or reply is frivolous the party prejudiced thereby, upon a,previous notice to the ad/oersepa/rty, may apply to the court or to a judge of the court, for judgment thereupon, and judgment ma}1- be given accordingly. And section 518 of chapter 6 provides that the said chapter G prescribes the rules by which the sufficiency of the pleading is determined, and one of the rules thus prescribed is by an application to a court or a judge. We think this provision has superseded the practice of treating an answer as a nullity, although tire court may deem it frivolous, and the ¡practice of disregarding an answer regularly served has long been discontinued. Its re-introduction is not desirable, as it would lead to innumerable motions if attorneys were to assume to judge for. themselves whether an answer is frivolous, and, upon coming to such conclusion, to disregard it. Besides, the judgment was entered as upon default for want of any answer, and not on account of the frivolousness of the answer interposed; so that if the judgment is allowed to stand the record will not show the answer, and the defendant may thus be deprived of an opportunity to review the opinion of the attorney for the plaintiff that the answer was frivolous. The answer may not contain any valid defense to the action of the plaintiff ; upon that point we express no opinion, but we think the only way for the plaintiff to get rid of it was to demur to it; or move to strike it out as frivolous or sham. We think, therefore, that the judgment entered by the plaintiff was entered wholly without authority of law, and as between the parties should have been so held on the motion to vacate it.

Order appealed from reversed and the judgment vacated and set aside, with $10 costs of the motion, and $10 costs and disbursements of appeal.

Present — Talcott, P. J., SMITH and HakdiN, JJ.

Ordered accordingly.


source: Caselaw Access Project

author: Taloott, P. J.:

license: Public Domain

text:
    MARY C. SNYDER, Respondent, v. OLIVER P. GUTHRIE and CAROLINE CLEVELAND, as Administrators, etc., of JOHN L. CLEVELAND, Deceased, Appellants.

      Agreement — when void for w amt of consideration.

    Where a father, who was the owner of a farm and entitled to the possession thereof, agreed with his daughter to lease the same from her and pay a stipulated rent therefor, and did thereafter pay to her certain sums on account of the said rent, Held, that the payments actually made took effect as gifts, but that his promise to continue such payments for the future, was void, for want of any consideration to support it, and could not, after his death, be enforced against his representatives either at law or in equity.
    Appeal from an order confirming the report of a referee, appointed to hear and determine a claim made against the estate of the defendant intestate, and denying a motion for a new trial, and also from the judgment entered upon the said report.

      J. McGuire, for the appellants.

      Itdl/ph T. Wood, for the respondent.
   Taloott, P. J.:

This case presents an appeal from an order confirming the report of a referee, and denying a new trial in the case of a claim against the estate of John L. Cleveland, an intestate, by Mary 0. Snyder, one of his daughters, and which, under the statute in such case provided, was referred to a referee to be tried and determined, and also from the judgment entered on the report of the said referee.

The principal ground of objection to the report of the referee is founded on the claim made by the defendants, that a portion of the amount allowed by the referee consists of rent reserved upon a lease made by the claimant to the intestate, of a certain farm in the town of Benton, Tates county, claimed to have been made by parol in 1874. It is conceded that the intestate was the owner. of this farm and had been such for many years, but had permitted the same to be occupied by the said Mary 0. Snyder and her husband and family from March, 1870, and there seems to have been a parol agreement or understanding between the intestate and Mrs. Snyder, that the farm and everything upon it was to belong to Mrs. Snyder. The husband of Mrs. Snyder testified: “ I heard John L. Cleveland tell my wife, says he, Charlotte, you be just as independent as you have a mind to be. I give you everything in the house and the farm with it to do as you have a mind to with.” In December, 1874, Mrs. Snyder’s husband, with the family, removed to Michigan, and it is claimed by Mrs. Snyder that on that occasion she made a parol lease of the farm to the intestate, to commence April 1, 1875, at $450 per year, with the privilege that the intestate should, if he should so elect, keep it for five years on , the same terms. It seems that this agreement was made when Mrs. Snyder was about to rent the place to one Legg, and the intestate being dissatisfied therewith, and desiring to retain some part of the premises for his personal use when he should be at Benton, said he would pay Mrs. Snyder for the use of the place and then he could rent to whom he pleased. Mrs. Snyder said nothing against the proposition or scheme, and this seems to be about the substance of what is claimed to be the parol hiring by the intestate of Mrs. Snyder. At all events, it appears that the intestate, by a lease bearing date on November 21, 1874, executed a formal lease of the farm to one Elvira Briggs of Benton, under hand and seal, for the term of three (or five) years from April 1, 1875, reserving to himself the annual rent of $450, payable in advance, and subject to other conditions specified in the lease. The intestate died in September, 1876, but had paid over or caused to be paid over to Mrs. Snyder the whole or a part of the rent which had accrued in the meantime on the lease from him to Elvira Briggs.

The referee wholly omits to find the fact, which we understand on the argument of this appeal to have been conceded upon both sides, that the intestate was the owner of the farm during all the time of these transactions, or even to find that the said Mary C. Snyder, the claimant, bad or claimed any equitable title to the said farm, but simply finds the fact that Cleveland, the intestate, on or about October 15, 1874, leased or hired of the plaintiff the said farm for a period of three or five years, at his option, at an agreed rent of $450 each year, to commence April 1, 1875, and that the said Cleveland immediately entered into the possession and enjoyment of the premises, and immediately thereupon sublet the premises to Elvira Briggs, who entered and has paid the rent therefor, to said Cleveland during his lifetime, and since his death to his administrators. And the said referee has also reported amongst other things that the estate of the said intestate was indebted to the said Mary C. Snyder for the rent of the said premises for the years ending March 31, 1876 and 1877, and for the year ending March 31, 1878, making in all $1,350, and in his statement of the account has given credit to the estate for the sum of $500, as paid on account of such rent; and finds among his conclusions of law that the plaintiff is entitled to recover of the defendants, amongst other things, the said sum of $1,350, with the interest thereon; and has reported as due from the estate the sum of $1,378.90 as a balance of the account, which balance is mostly composed of the rent claimed to be due to Mrs. Snyder upon the said lease of the farm in question to the intestate. The findings of fact and conclusions of law were all excepted to; the other findings of fact, not hereinbefore especially referred to, relate to certain claims of Mrs. Snyder for certain personal property alleged to have been sold to. the intestate in his lifetime, the testimony concerning which it is unnecessary to examine in detail.

The referee has obviously proceeded upon the ground that the supposed arrangement between the intestate and Mrs. Snyder, whereby Mrs. Snyder is supposed to have leased the farm to the intestate, created a legal obligation on the part of the intestate to pay over to Mrs. Snyder the rent, which he had reserved in his lease to Elvira Briggs: We do not understand upon what legal principle this proposition can be sustained, even if there had been an absolute and clear written agreement to that effe^f. The intestate was himself the undisputed owner, and entitled to the possession of the farm, and entitled in his own right to receive the rentsj issues, and profits thereof. So far as he chose to pay, or cause them to be paid to Mrs. Snyder, such payment would take effect as a gift to her, but his promise to continue such payments for the future would be a mere nudrnmpaci/um, without any consideration to support it,, and cannot be enforced against his representatives, in law or equity. The whole foundation of Mrs. Snyder’s claim, so far as it consists of demand for the rent of the farm not paid over to her by the deceased, or under his direction in his lifetime, fails, and the referee erred in allowing it, or any part of it, as a claim against the administrators.

The order of confirmation appealed from, and the judgment, are reversed, and a new trial ordered; costs to abide the event.

Present, Talcott, P. J.; Smith and Habdust, JJ.

Order and judgment appealed from reversed, and new trial ordered before another referee. Costs to abide event.


author: Talcott, P. J.:

text:
    EUNICE L. ROOT as Executrix, etc., of John H. ROOT, Deceased, Respondent, v. Thomas R. WRIGHT, Appellant, Impleaded, etc.

      Attorney and client — when a communication behiceen them is not privileged— Gode of Owil Procedure, § 835 — in an action to foreclose a mortgage, a 'mortgagor who has conveyed the property is not a necessary party — when one who has assumed the payment of a mortgage is estopped from disputing the amount due thereon.

    One Foster, the owner of a lot upon which was a mortgage for $1,000, owned by one Root, and one for $500, owned by one Crosby, entered into negotiations with the defendant Wright, for the sale of the lot to him, subject to the Root mortgage, upon the agreement that he should pay the Crosby mortgage. While the negotiations were pending, Foster, Crosby and Root each called upon one Howe, an attorney, and requested him to draw such papers as might be necessary to carry out the agreement between them, which he did. Thereafter Foster conveyed the lot to Wright by a deed, containing a clause by which the latter assumed the payment of the Root mortgage. Wright also agreed to and did thereafter pay and discharge the Crosby mortgage.
    In an action to foreclose the Root mortgage, and Wright any deficiency that might arise bn a sale, he claimed that the deed, though absolute on its face, was intended as a mortgage, and that he was not liable, upon the covenant, for the assumption' of the Root mortgage contained . ‘ therein.
    Held, that the relation of attorney and client did not exist between Wright and Howe, so as to render tire testimony of the latter as to the declarations and acts of the parties relating to the agreements entered into between them, inadmissible, under section 835 of the Code of Civil Procedure.
    That although Wright’s grantors might be proper, yet they were not necessary, parties to the action.
    The deed provided that there was due on the Root mortgage “$1,000 and interest thereon from April 1, 1872, .which amount the said Wright hereby assumes to pay.”

      Held, that Wright was thereby estopped from showing that Foster had, , on April 5, 1872, paid to Root an usurious bonus to induce him to agree to an indefinite extension of the mortgage, and that he was not entitled to have the amount so paid credited upon the mortgage.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. •

      S. N. Dada, for tbe appellant.

      Howe & Dice, for tbe respondent.
   Talcott, P. J.:

This appeal is from a judgment entered on the report of a referee in tbe county of Oswego. The action is to foreclose a mortgage and to hold tbe defendant, Thomas R. Wright, liable for any deficiency which may not be realized on a sale of tbe mortgaged premises, by reason of a covenant contained in a deed of the mortgaged premises, which was an absolute deed on the face of it, executed by George Poster, the mortgagor, who was personally bound for the mortgage debt, and his wife, to the defendant, Thomas R. Wright. The said deed contained the usual covenant of general warranty, from' which the mortgage in,question was excepted in the following language: “ Except as against a certain mortgage owned and held by one Root, on which is unpaid the sum of fl,000, and interest theréon from April 1, 1872, which amount tlie said Wright hereby assumes to pay in addition-to the aforesaid purchase price.”

Wright set up as a defense to the claim to hold him responsible for any deficiency, that the deed from Foster and wife to him, though absolute on its face, was, in fact, intended as a mortgage to secure the said Wright for a certain liability of said Wright on a note made by a son of the said Foster, and on which the said Wright was a second indorser under the said Foster, and for $500, which Wright, at or about the time of the delivery of the deed, advanced to one Crosby in payment of a bond and mortgage on the same premises, and which said sum the said Foster agreed to repay to him, Wright. The defendant, Wright., also alleges that he was not present when the deed was executed, and never received or accepted it with knowledge that it contained any clause whereby he assumed the payment of the Root mortgage, and was not aware that the deed contained the said clause till some four years after the date and delivery of the deed, lie also insists that there is a defect, of parties in the suit, and that the said Foster and wife, his grantors, ought to have been made parties. The referee has found as a matter of fact that although it was originally agreed by parol that Foster should convey the premises to Wright under an agreement that one Crosby should transfer to Wright a second mortgage held by Crosby on the same premises, and that when Foster should pay to Wright the amount the latter should pay for the assignment of Crosby’s mortgage and what he, Wright, should pay on the note which had been indorsed by him for the benefit of Foster’s son, that afterwards, and on the same day, a new and different agreement was entered into by parol between Foster, Wright and Crosby, whereby Crosby was to cancel and satisfy his mortgage, and Foster was to execute and delivér to Wright another mortgage on what was called the “ wood lot,” for the sum of about $500, which sum Wright agreed to pay Crosby in payment and satisfaction of the latter’s said mortgage. That Crosby did thereupon execute and deliver a satisfaction-piece of his said mortgage and Wright afterwards paid him about $500 for the same ; and further finds in substance that the said deed was executed by Foster and wife to Wright as an absolute deed, without any agreement that Wright should take or hold the same as security or otherwise than as an absolute deed, although Wright “expressed a willingness to reconvey the premises to said Foster whenever the latter should repay to Wright the price which he, Wright, was then paying for the same.” And the referee further finds that just prior to the execution of the deed from Foster and wife to Wright, the said deed was read over to Wright, and the contents thereof made known,to him. We understand the counsel for the appellant Wright as conceding that this finding of facts cannot be disturbed provided the referee decided correctly in receiving the testimony of Mr. Howe concerning the transaction. Mr. Howe was an attorney and counselor at law, and during the negotiation was visited by the grantor Foster and by Crosby, who held the said second mortgage, and by Wright, and requested to draw the necessary papers to carry out the arrangement between the three, and his testimony related to the understanding and agreement finally arrived at by the three parties, and their several declarations and acts relating thereto. His testimony on this subject was objected to by the appellant on the ground that the same was within the prohibition of section 835 of the Code of Civil Procedure — which provides that an attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon in the course of his professional employment.

It is obvious from the note to that section that it was only intended to enact the rule which had been held on this subject at the common law. The conversations and communications, so far as they consisted of the conversations of Wright, were not intended as confidential communications by Wright to his attorney and counsel, but were communications made'not only in the presence of the attorney but in the presence of all the other parties to the arrangement. Under such circumstances, where the communication takes place in the presence of all the parties to the arrangement, and where the only relation of attorney and client grows out of the fact that the attorney was employed to draw the papers between the three parties holding adverse interests in relation to the subject-matter in respect to which the conversation sought to be proved by the attorney took place, we understand the rule to be that such conversation is not privileged. (Brandt v. Klein, 17 Johns., 335 ; Coveney v. Tannahill, 1 Hill, 33; Whiting v. Barney, 30 N. Y., 330; Britton v. Lorenz, 45 Id., 51; Hebbard v. Haughian, 70 Id., 54.) We think, therefore, that the referee committed no error in receiving the testimony of Mr. Howe respecting the arrangement then made by and between Wright, Crosby, and Foster.

Foster and wife having absolutely conveyed to Wright all their interest in the equity of redemption, and, as between the parties holding only the relation of sureties for Wright as to the personal obligation to pay the bond and mortgage of the plaintiff, though perhaps proper, if the plaintiff had seen fit to make them so, were not nece'ssary parties to the foreclosure suit. (Drury v. Clark, 16 How. Pr., 424; Bigelow v. Bush, 6 Paige, 343 ; Gilbert v. Averill, 15 Barb., 20.)

The referee also finds that Foster paid to Root, on April 5, 1872, more than two years before the conveyance of the premises to Wright, the sum of $15, which he finds was not a payment upon the mortgage, in satisfaction of so much of the principal or interest due thereon, but upon an agreement to extend indefinitely the time for the payment thereof; which item of $15 the referee did not allow as a payment upon the mortgage, and to the non-allowance of this item the appellant excepts. The referee puts the non-allowance of this item upon the ground that Wright is stopped by his assumption of the amount of the mortgage fixed at $1,000, with interest from April 1,1872. If the $15 was paid upon the account found by the referee it was so much in excess of the legal interest. It was not paid to apply in satisfaction of so much of the bond and mortgage, and it is well settled that the grantor may convey subject to the ¡Daymen t of a mortgage on which a usurious payment has been made without giving the grantee a right to have the usurious payment applied in satisfaction of the mortgage which he has assumed to pay. (Shufelt v. Shufelt, 9 Paige, 145 ; Ritter v. Phillips, 53 N. Y., 586 ; Barthet v. Elias, 2 Abb. N. C., 364.)

The other exceptions taken by the appellant to the reception of evidence have no connection with the merits, and in an equity case may be disregarded.

The . judgment should be affirmed, with costs of the appeal.

Smith and Hajjdin, JJ., concurred.

Judgment affirmed, with costs of appeal.


text:
    GEORGE DUNFORD, Respondent, v. FREDERICK G. WEAVER, as Sheriff of Oneida County, Appellant.

      Right of a surrogate to compel a removed administrator to render a final account— ch. 733 of 1865 did not repeal ch. 460 of 1837, as amended by ch. 329 of 1862, —in an action for an escape, the sheriff cannot set up errors in the process, unless they are such as to render it void — what damages may he recovered in such <inaction — Code of Civil Procedure, § 158 — evidence of the insolvency of the debtor, when inadmissible.

    Chapter 733 of 1865, providing that when an administrator shall have been removed,.or suspended, or his letters of administration shall have been revoked, he shall be liable to account on the application of his successor, did not repeal the provisions of chapter 460 of 1837, as amended by chapter 229 of 1862, authorizing the surrogate to compel such an administrator to account, on the ' application of a creditor, or to take and state a final account upon the application of the removed administrator.
    In an action against a sheriff foT the escape of one held by him by virtue of a precept or mandate issued by a surrogate, upon a decree entered upon a final accounting, rendered by such person after letters of administration issued to him had been revoked, the sheriff cannot avail himself of any error in the decree, or in the process upon which the arrest was made, unless it be such as to render the latter absolutely void.
    In such an action the plaintiff, if successful, is entitled to recover as damages,' under section 158 of the Code of Civil Procedure, the amount named in the warrant of commitment, with interest thereon, if it so provides.
    Evidence to show that the person arrested was insolvent, is not admissible in such an action, in mitigation of damages.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      G-. D. Adams, for the appellant.

      8. M. lindsley, for the respondent.
   Talcott, P. J.:

This appeal is from a judgment rendered on a verdict at the Oneida Circuit.

The defendant is sued, as sheriff of Oneida county, for the escape of one John Tillinghast, who had been received into0 his custody under four several final precepts or mandates issued by the surrogate of Oneida in a proceeding originally commenced by John Boyle as a creditor of Ross Taylor, deceased, and of whose estate the said John Tilling-]) ast had been appointed administrator with the will annexed. One Mathew M. Parker, one of the sureties of the said John Tillinghast as such administrator, had presented his application to the surrogate, setting forth that he desired to be relieved from the responsibility for the further acts or defaults of the said Tillinghast as such administrator, and the said Tillinghast had been cited to appear before the said surrogate and give new sureties. Tillinghast appeared in pursuance of the citation, but neglected to give new sureties, whereupon the letters of administration to the said Tillinghast were revoked by the said surrogate on March 17, 1875. The application of Boyle was made for the purpose of compelling the said Tillinghast to render his accounts as such administrator. Pending this proceeding Tillinghast filed before the surrogate a petition for a general accounting, and the same was referred to an auditor to examine and report upon. The auditor made and filed his report, which was confirmed by the surrogate, and a final decree made, whereby the said John Tillinghast, as such administrator, was personally charged with certain moneys shown to be in his hands as such administrator, and not paid out. On the foot of this decree the four several precepts were issued to the Sheriff of Oneida in favor of four certain creditors of the said Ross Taylor, deceased, for the several sums found to be due to them, recitir g the said final decree, and that the said sums had been personally demanded of Tillinghast, and that he neglected and refused to pay the same, and respectively commanding the said sheriff that he take the body of the said Tillinghast, if found in his bailiwick, and commit him to the common jail of his county, and detain him in custody until he should pay ■ the several sums named in the several precepts. These amounts were indorsed on the precepts respectively, with directions to collect the same, with interest and costs. They were issued and delivered to the sheriff, and by virtue thereof he had arrested the said Tiilinghast, and taken from him bail for the jail limits. On August 23, 1879, the said Tiilinghast went beyond the jail limits, and while he was so absent a suit was commenced against him by the plaintiff, to whom the several claims had been assigned, for an escape. The sheriff arrested Tiilinghast upon the four several precepts, and returned the same to that effect.

On the trial the plaintiff, after proving the decree made by the said surrogate on September 27, 1876, and also'the four precepts, with fhe return of the sheriff thereon, and proving the extent of the jail limits for Utica, gave proof tending to show that on August 23, 1879, the said Tiilinghast was beyond the jail limits, and that this suit was commenced before his return to the said limits. It would have be'en a good defense to the action that the escape was without the consent of the sheriff, if he had the prisoner within the liberties at the time of the commencement of the action against the sheriff, either by voluntary return or recapture. (Code Civil Procedr ure, § 171.) So that if it became important for the plaintiff to show (in case the law is held to be that the sheriff had a right under the precepts issued by the surrogate to let the prisoner to the jail limits) that the action for the escape was commenced before the prisoner had returned within the limits. The plaintiff had commenced this action by delivery of the summons to the sheriff’s clerk, in the office of the sheriff, under subdivision 3 of section 426 of the Code of Civil Procedure, as amended in 1879 ; and the defendant now objects that there was no evidence that the room where the summons was left was the “ designated ” office of the sheriff. The sheriff was called by the plaintiff as a witness, and testified that the place where the service was made was his official office; we think this was sufficient' to establish the fact prima facie at least. But, in addition, the plaintiff, upon the argument of this appeal, produced a duly certified copy of the certificate, filed in the county clerk’s office, designating the same locality as his office. If such proof of the actual designation was requisite it might, if omitted on the trial, be proved on the appeal for the purpose of sustaining the judgment. The specific question was left to the jury whether Tillinghast was off the limits at the time when the summons was served, and they must be deemed to have found in the affirmative.

The defendant objected to the proof of the several precepts, on the ground that the plaintiff must show the proceedings before the surrogate upon which they were issued. The decree on which they were issued was introduced in evidence by the plaintiff, and fully recites all the facts which gave the surrogate jurisdiction to issue the said precepts, and the fact that the said Tillinghast was remoVed from his office of administrator with the will annexed was proved by the introduction of the surrogate’s order to that effect. By article 3 of title 3, chapter 6, of the second part of the Revised Statutes, sections 63 and 64 (3 R. S., 6 ed., pp.' 99, 100), an administrator may be cited to account or may voluntarily render his final account; and by chapter 460 of the Laws of 1837, as amended by chapter 229 of the Laws of 1862, the surrogate was given the same jurisdiction to require any executor or administrator, whose letters have been revoked, to render an account of his proceedings, as is conferred by article 3 of title 3, chajffer 6, of the second part of the Revised Statutes. That is, the same power is conferred upon the surrogate to require a removed administrator to account, as was conferred on him by the statute last cited, to require an unremoved administrator .to account. Chapter 733 of the Laws of 1865 provides that when an administrator shall have been removed or suspended, or his letters of administration shall have been revoked, he shall be liable to account on the application of his successor, and the surrogate shall have power to decree the payment and delivery to such successor of all assets, etc., and to compel the performance of such' decree in the same manner as of decrees made in other cases 'of accounting. But this was not intended to and did not repeal the statute which authorized the surrogate to call such administrator to account on the application of a creditor, or to take a final account on the application of the removed administrator. In this case it does not appear that any successor of Tillinghast was appointed to succeed him in the administration from which he was removed; and, in the case of Annett v. Kerr (28 How. Pr., 324), the court, in discussing the effect of the act of 1865, holds that “ all parties interested in the estate as creditors, legatees or next of Mn have a right to summon a removed administrator to account, and procure a decree against him.” (And see Redfield’s Surrogate Practice, 364.)

The surrogate had jurisdiction of the subject matter, that is, of the rendering of an account by the removed administrator; and jurisdiction of the party was sufficiently acquired by his voluntary appearance upon the citation; and in any event the judgment was not void, even if erroneous as to any of its particulars. But the sheriff cannot avail himself of any error in the judgment or of any error in the process upon which he made the arrest unless the latter was absolutely void, and cannot defend any action for an escape upon any such ground, (Cable v. Cooper, 15 Johns., 155 ; Jones v. Cook, 1 Cow., 309 ; Bissell v. Kip, 5 Johns., 89 ; Fox v. Drake, 8 Cow., 192 ; Ginochio v. Orser, 1 Abb. Pr., 433.) The principle last referred to constitutes an answer to the objections of the defendant that certain items were included in the surrogate’s decree in excess of what the surrogate had power to adjudge that Tillinghast should pay.

The defendant had set up in his answer and offered to prove on the trial that Tillinghast was insolvent. The proof was objected to and the defendant excepted. It has long been settled that in an action of debt against the sheriff for an escape he was liable for the whole amount. All the different forms of action known before the Code of Procedure were thereby abolished, and but one form of action for the enforcement or protection of private rights and the redress of private wrongs was given by that enactment, which is denominated a civil action, and the only requirement as to the form of action is that the complaint shall contain a plain and concise statement of the facts constituting each cause of action. The complaint in this case contained all the necessary particulars to show a cause of action against the sheriff for an escape. The liability of the sheriff in such case seems to be prescribed by section 158 of the Code of Civil Procedure, which enacts as follows: “ Where a prisoner in a sheriff’s custody, goes or is at large beyond the liberties of the jail, without the assent of the party at whose instance he is in custody, the sheriff is answerable therefor, in an action against him, as follows:

“ 1. If the prisoner was in custody by virtue of an order of arrest, or in consequence of a surrender in exoneration of his bail, before judgment, the sheriff.is answerable to the extent of the damages sustained by the plaintiff.

“ 2. If the prisoner was in custody by virtue of any other mandate or in consequence of a surrender in exoneration of his bail after judgment, the sheriff is answerable for the debt, damages or sum of 'money for which the prisoner was committed

This section was evidently intended to provide that in all cases where the prisoner was committed on final process and escaped, the sheriff should be answerable for the sum for which 'he was committed, and restricts evidence in mitigation of damages to cases where the prisoner was committed on mesne process.

The only other question of any importance which is presented by the exceptions of the defendant is as to the right to recover interest on the demand for which the prisoner ivas committed. This question seems to be answered by the provisions of the section (158) above quoted. “ The sheriff shall be answerable for the debt, damages, or sum of money for which the prisoner -was committed.” The several matters or precepts on which Tillinghast was arrested directed that he be retained in custody until he should pay the sum specified in each, “with interest thereon from September 2Y, 18Y6,” and such was the indorsement on the process.

It is claimed by the plaintiff that the sheriff had no right to admit Tillinghast to the liberties of the jail, and the question seems to be a mooted one, not yet fully determined. (See Matter of Watson v. Mary Nelson, 69 N. Y., 536, and People v. Marshall, 7 Abb. New Cases, 380.) However this point may be ultimately determined, it seems, to be immaterial in this case, as the plaintiff proved, and the jury has found, that Tillinghast was outside of the limits of the jail when the suit was commenced.

The judgment is affirmed.

Smith and Hardin, JJ., concurred.

Judgment affirmed.


author: Taloott, P. J. :

text:
    GILBERT W. HAZELTINE, Appellant, v. MOSES M. MOORE, THANKFUL E. MOORE and JOSEPHUS H. CLARK, Respondents.

      Vendor's lien on real estate — what a waiver of — when destroyed Iry taldng a collateral agreement to secure the purchase-money.

    A vendor of real estate waives his lien for the unpaid purchase-money, by taking the note or obligation of a third person therefor,, or by taking from the vendee an agreement to pay the amount due, in some commodity other than money. -
    Appeal' from a judgment in favor of the defendants, entered upon the report of a referee.
    The plaintiff; was seized of a certain piece of land, described in the complaint, which he, on September 9, 1861, in pursuance of an agreement made with the defendant, Moses M. Moore, and at his request, conveyed to the defendant Thankful E. Moore, the wife of the defendant Moses, receiving in part payment thereof another piece of land called the Barnes lot. There were then two mortgages on the land of which the plaintiff was seized, and he sold and exchanged the same subject to them. Over and above the mortgages there remained due to the plaintiff the sum of $350. This amount M. M. Moore agreed should be paid in goods from a store owned by a firm, of which he was a member. Both of the two mortgages upon the land which the plaintiff sold, were subsequently, and before the commencement of this action, assigned to the defendant Clark, to whom, on July 30, 1869, two days after the commencement of this action, the defendants Moore gave a third mortgage upon the same premises. This action was brought to foreclose an equitable lien for the unpaid purchase-money, which the plaintiff claimed existed in his favor.

      A. Hazeltme, Jr., for the appellant.

      Zakin da /Sessions, for the respondent.
   Taloott, P. J. :

The action was brought to foreclose a lien, for a part of the pur'cliase-money unpaid to the plaintiff upon the conveyance of the premises to Thankful E. Moore, the wife of the defendant Moses M. Moore, and the only question raised is between the plaintiff and Josephus H. Clark, the holder of three mortgages upon the premises conveyed, two of them executed prior to the conveyance, and one subsequently. The referee has reported, by which report he authorizes the foreclosure of the lien, amounting to $115.29, with interest from September 6, 1869, but postpones the same to all three of the mortgages held by Josephus H. Clark.

The history of the matter is as follows : Upon a certain exchange of property the plaintiff conveyed to Thankful E. Moore certain premises in the village of Jamestown, and received from her in return certain other premises; and for the balance of the purchase price unpaid to the plaintiff on the said exchange, M. M. Moore executed his obligation in the words and figures following.

“ Jamestown, N. Y., September 9, 1867.

“ For value reed. I promise to pay to Dr. G. W. Hazeltine or bearer, three hundred and fifty dollars in goods, at the store of Moore, Orms & Co., at ten per cent, advance from the New York cost thereof.

“M. M. MOORE.”

The said Moses M. Moore was, at the time, a member of the firm of Moore, Orms & Co., who were then carrying on the business of druggists -at Jamestown. The said Moses M. Moore was also the husband of Thankful E. Moore, and had made the bargain for the exchange of the lands, such exchange having been made at his request and by his procurement. All except the balance of $151.29 has been paid on the due bill.

"We think the amount remaining unpaid on the said due bill was not alien on the premises conveyed by the plaintiff. A lien for the purchase-money is waived where a note is taken by the vendor in which a third person joins as security. A fortiori where the obligation taken is the obligation of a third person and not of the vendee.

But suppose the obligation is to be treated as thp obligation of the vendee, because of the relation which the obligee sustained towards the vendee, or because the whole_ exchange of property was made at the request of the obligor. Then, there is another rule which prevents the amount due on the obligation from being a lien on the granted premises. The breach of a collateral agreement to pay part of the consideration for the lands sold, in another commodity than money, creates no lién on the land, and the taking of such an obligation is a waiver of any lien for the purchase-money, ■ so far as the amount agreed to be paid in another commodity is concerned. (See Fisk v. Potter, 2 Abb. Ct. App. Dec., 138; S. C., 2 Keyes, 64.) So held, where the vendor had agreed to receive a part of the consideration of the purchase in railroad stock. The plaintiff got more than he was entitled to by the judgment, but as to that, there is no appeal by the defendants.

The judgment is affirmed, with costs of the appeal.

Smith and Hardin, JJ., concurred.

Judgment affirmed, with costs of the appeal.


text:
    JOHN UNDERWOOD as Receiver, etc., of HENRY C. SUTCLIFFE, Respondent, v. WILLIAM SUTCLIFFE, and HORACE T. COOK, as Administrator, etc., of HENRY C. SUTCLIFFE, Deceased, Appellants.

      Power of a court to vacate its judgments — when it may substitute the personal representatives of a deceased party in his place.

    On July 20, 1875, the plaintiff, — a receiver appointed in supplementary proceedings instituted against one H. 0. Sutcliffe, upon a judgment recovered against him by one Ferris, — recovered a judgment, in an action brought against the said H. C. Sutcliffe and his son William, declaring the said Ferris judgment to be a lien upon certain land conveyed by a third person to William, and upon a building erected thereon, on the ground that the money for the purchase of the land and the erection of the building was furnished by the father. On an appeal taken by William the judgment was affirmed by the General Term, but reversed by the Court of Appeals on j;he grounds that a receiver in supplementary proceedings could not enforce the trust arising in favor of the father’s creditors, by reason of his having furnished the money for the purchase of the land; and that as to the building it was not shown that the money was advanced by the father with an intent to defraud his creditors.
    H. C. Sutcliffe having died, pending the appeal to the General Term, the plaintiff, in October, 1879, applied for and procured an order substituting H. C. Sutcliffe’s administrators as a defendant, vacating the judgment entered against him and ordering a new trial.

      Held, that the order was proper and should be affirmed.
    Appear from an order vacating a judgment heretofore entered in this action, in so far as it affected Henry C. Sutcliffe or his estate, and reviving and continuing the action against Horace T. Cook, public administrator of Cayuga county, as administrator of the said Henry C. Sutcliffe.
    This action, brought by the plaintiff, a receiver appointed in supplementary proceedings, against Henry C. Sutcliffe, and William Sutcliffe, his son, was tried at the Cayuga Equity. Term in March, 1875. The action was brought to charge certain real estate and the improvements thereon with the lien of a judgment, obtained by one Ferris against Henry 0. Sutcliffe. It apjseared on the trial that during the pendency of an action brought by Charles T. Ferris against Henry C. Sutcliffe, the latter paid for certain real estate, the deed to which was taken by his son William. That at the time Henry C. Sutcliffe was carrying on .an extensive business as a brewer, and that after the conveyance of the said land, valuable improvements were placed oirthe land by the defendant William, with money furnished by his father. It was claimed that the court had found in that action that the said land was so conveyed, and the said improvements were put on it and paid for with an intent by the said defendants to cheat and defraud the creditors of the. said Henry C. Sutcliffe, and especially the said Charles T. Ferris, but that owing to an inadvertence and omission of the court in drawing the findings and decree, the decision, while it stated that the conveyance was made and received for the purpose of defrauding creditors, omitted to state that the improvements were placed thereon and paid for, with such intent to defraud.
    The defendant, William Sutcliffe, appealed from the said judgment, which was entered in July, 1875, and the same was affirmed by the General Term in an opinion reported in 10 Hun, page 453. On an appeal to the Court of Appeals the judgment was reversed, that court holding that a receiver in supplementary proceedings could not maintain an action to enforce a resulting trust, and granting a new trial; the court holding that while the improvements could be reached in this action if placed thereon with a fraudulent intent, yet that the findings and judgment did not show that intent sufficiently.
    Henry C. Sutcliffe had in the meantime died, and the plaintiff moved this court to continue the action against his administrator, whom the creditor had caused to be appointed, and to open the judgment against Henry C. Sutcliffe, so as to be able on a new trial to show the fraud of both the father and the son in placing the said improvements on the premises.
    - From the order granting this motion, this appeal was taken.

      J. Jt. Cox, for the appellant.'

      W. F. Cogswell, for the respondent.
   Talcott, P. J.:

This is an appeal by Cook, the administrator of .Henry C. Sut-' cliffe, deceased, who had died after the recovery of the judgment in this case, from an order made on December 8, 1879, that the judgment obtained in July, 1875, against Henry 0. Sutcliffe (who •was one of the original defendants in this action), so far as the same relates to or affects the said Henry 0. Sutcliffe or his estate, be vacated, and that the said action be revived against the defendant Cook, public administrator of Cayuga county, as administrator of the goods and chattels of Henry C. Sutcliffe, deceased, in lieu and place of Henry C. Sutcliffe, in connection with William Sutcliffe, the other defendant. The action was originally commenced by the plaintiff as a receiver of the estate of Henry C. Sutcliffe, appointed under supplementary proceedings. The action was in the nature of a creditor’s bill, and charged not only the fradulent conveyance of divers personal effects by the said Henry C. Sutcliffe to Ms son William, but also that the said Henry C. had caused and procured to. be conveyed to the said William certain real estate in Auburrg-which was paid for by the money of the said Henry C., and had after such conveyance, caused to be erected thereon a malthouse, at an expense of some $6,000, a part or all of the expense of the said building having been also paid for by the money of the said Henry 0. Henry C. and William Sutcliffe each answered separately to the said complaint, the said Henry denying all the allegations of fraud in the complaint contained; that he owned or had any interest in the property mentioned; and the said William denying that the said property on which the malthouse was subsequently erected was purchased or caused to be purchased by the said Henry O. or with his money, but setting up that the lot was purchased by himself, and that he, with and out of his own means, erected the malt-house thereon, and denying also any fraudulent conveyance of that or any other property to him. The action came on and was tried before Mr. Justice Dwight at the . Special Term, held in March, 18J5, who found, amongst other things “ that in the year 1866 the defendant, Henry C. Sutcliffe, became indebted to one Charles T. Ferris, and that Ferris recovered a judgment for that debt, and commenced the proceedings supplementary to the execution on which the plaintiff Underwood was appointed a receiver. That while the action was pending on behalf of the said Ferris the premises aforesaid were conveyed by one W etherby to the defendant William, the-son of the said Henry C., the consideration thereof being paid with the money of the said Henry C., and the conveyance was taken in the name of the son, with the concurrence of both defendants, for the purpose of hindering the said Ferris from collecting his said demand.” That in the year 1868, the defendants erected a malt-house on the said premises at a cost of at least $6,000, all of which, with the exception of $1,500 furnished by the- wife of Henry C., was paid with the money of the said Henry C., and that said conveyance of said premises to said William Sutcliffe was for the purpose of delaying and defrauding the creditors of said Henry C., and especially the plaintiff, Charles T. Ferris, and hindering him from collecting the judgment in the said action if the same should be afterwards (as it was in fact) obtained and recovered.” And the gaid-court found, as conclusions of law, that the conveyance tq William Sutcliffe was fraudulent and void as against the said Ferris ; and the same, with the building thereon, erected by the defendants, should in equity be subject to the judgment, and ordered a judgment in pursuance of the said conclusion of law. From that judgment the defendant William Sutcliffe appealed to this court, where the same was affirmed on the opinion of Mullin, P. J. (the case being reported in 10 Iiun, at page 453). From the affirmance of the said judgment by this court William Sutcliffe appealed to the Court of Appeals, where the judgment of affirmance was reversed and a new trial ordered, on the ground that there was no express finding of fraud in respect to the transaction, whereby the costs of erecting the malthonse had been paid out of the moneys of Henry C. Sutcliffe ; and that so far as the findings showed, “ the advance may have been made under circumstances creating the relation of creditor and debtor between the partiesand that as to the lot on which the malthouse was erected, the trust resulting to the creditors of the defendant Henry C., by reason of the payment of the consideration by him, under section 52 of the article of the Revised Statutes relating to uses and trusts, could only be enforced by the creditor, whose judgment is not a lien on the land, bnt who is a cestui que trust to the extent of his debt, and the right to enforce the trust does not pass to or vest in a receiver appointed in supplementary proceedings.

The effect of the order appealed from is to include the representative of Henry C. Sutcliffe in the order for a new trial, and the Code of Civil Procedure (§ 756) provides that in case of a transfer of interest or devolution of liability, the action may be coutinued by or against the original party, unless the court directs the party upon whom the liability is devolved to be substituted in the action; and in section 758 it is provided that, in case of the death of one of two or more defendants, if the entire cause of action survives against the others, the action may proceed against the survivors, and the court may make an order to bring in the proper representative of the decedent. The court had power to make the order that the action be revived or continued against the defendant Cook, as administrator of Henry 0. Sutcliffe. The laches in the making of the application to vacate the judgment was sufficiently excused. In the recent case of Hatch v. Central Nat'l. Bank (9 Weekly Dig., No. 2, p. 26), the Court of Appeals held that a court of record has an inherent power over its own judgments, and may set them aside when in the furtherance of justice. It is claimed that the court or the Special' Term in ordering the findings in this case, found that the improvements put upon the malt house premises were put on and paid for with the intent to cheat and defraud the creditors of the said Henry C. Sutcliffe, but in drawing up the findings by inadvertence it omitted to state such finding among the findings of fact. If such was the fact, it would seem to present a ‘^proper case for amending the findings of fact, and that such was the fact derived increased probability from the circumstance tliat the order appealed from was made by the same justice who tried the cause, and who prepared the findings in the action. Whether it was necessary to vacate the judgment for this purpose, we do not care to discuss, as we have concluded that the court had the power to do so ; and the granting or denying such application was a matter of discretion with the justice at Special Term, which we cannot say has been abused. Section 129<', relied upon by the counsel for the administrator as prohibiting the exercise of the privilege to set aside a final judgment upon a motion after the expiration of two years since the filing of the judgment roll, is, by its tenn, confined to those cases where the motion is made for error in fact, not arising upon the trial, and for that reason has no application to this -case.

The order appealed from is affirmed, with $10 costs and disbursements.

Present — Talcott, P. J., Smith and Hardin, JJ.

Ordered accordingly.


text:
    WILLIAM O. ROBERTS, Appellant, v. THOMAS MARSON and JOHN MARSON, as Administrators, etc., of EDWARD T. MARSON, Deceased, Respondents.

      •When an order of a County Court is not appealable to the General Term— Code of Civil Procedure, § 1342.
    An appeal will not lie to the General Term of the Supreme Oourt from an order of the County Court made in an action commenced in a justice’s court, and brought into the County Court by appeal.
    Appeal from an order made by tbe Oneida County Court, denying a motion to set aside a nonsuit ordered herein, and from an ' order of the said court granting a nonsuit, and refusing to bold tbe action abated by tbe death of tbe original defendant.

      B. 0. Jones and A. M. Beardsley, for the appellant.

      8. F. Bwrrows, for tbe respondents.
   Talcott, P. J.:

This is an appeal for tbe purpose of reviewing two orders made by tbe County Court of Oneida county, one denying a motion made by tbe plaintiff to set asidea nonsuit granted in the action, tbe other made by tbe same cotu't, granting a nonsuit in tbe said action, and refusing to bold tbe said action abated by the death of tbe •original defendant in tbe action.

Tbe action was an action of replevin, originally commenced in the court of a justice of tbe peace and carried up to tbe County Court by appeal.

We have already held in several cases at tbe last term of this court that no appeal lies to this court from an order made by a County Court in an action not commenced in that court but brought thither by appeal. (See Code of Civil Procedure, § 1342 ; Fish v. Thrasher, MS. opin. of Talcott, P. J., at tbe April term of this court, 1880, and a decision of tbe Court of Appeals in Andrews v. Long, 9 Weekly Dig., 513.) An appeal lies in such cases only from a final judgment. (Code Civil Procedure, § 1340.) This is not an appeal from a final judgment; indeed it does not appear that any final judgment has been rendered in the action.

Because we have no jurisdiction to hear the appeal from the orders, the appeal is dismissed, with $10 costs and disbursements.

Smith and Hardin, JJ., concurred.

Appeal dismissed, with $10 costs and disbursements.

       Reported Ante, p. 15.


text:
    CHARLES LIND, by ANDREW HOVERSON, his Guardian ad litem, Respondent, v. CLAUS C. N. SULLESTADT, Appellant.

      Right of one brought up as a member of a family to recover for Ms services rendered to the head thereof — when a minor is iiresumed to be emancipated and map recover the value of services rendered by him.

    The plaintiff’s father being dead, his mother, who -was poor, and resided in Norway, entered into an agreement with the defendant, her brother, who resided in this State, by which the latter was to furnish the money to bring the plaintiff to this country, and receive him into, and bring him up as a member of his family, clothing and educating him as if he were his son. The defendant, in pursuance of the said agreement, furnished the money to bring the plantiff to this country, and received him into his family in July, 1870. In July, 1875, the plaintiff left the defendant’s family, claiming that the defendant had not fulfilled the agreement on his part, and brought this action to recover for work, labor and services rendered and performed by him for the defendant.

      Meld, that if the defendant did, taking into account the situation and condition in life of the parties, bring up the plaintiff in a suitable manner, clothing and educating him properly and treating him as he would if he were his own son, that then the plaintiff could not recove)-; but that if the defendant did not do all these things that then the plaintiff could recover what the services rendered by him were fairly worth, over and above all that he had received from the defendant by way of board, clothing, and moneys paid out for, and services rendered to him.

      Held, further, that under the circumstances of this case, the emancipation of the plaint iff; was lo be implied, and that if any action would lie for the services so rendered, it could be maintained by him, and need not be brought ip fhe name of his inother,

      Appeal from a judgment of the Orleans County Court, in favor of the plaintiff, entered upon the verdict of a jury.
    This action was originally commenced in a justice’s court by the plaintiff, a minor, by his guardian, to recover upon a guamtnim meruit, for work, labor and services rendered by him to defendant.
    The defendant claimed the services were rendered under an agreement with plaintiff’s mother that the defendant should take the plaintiff into his family as a member thereof, with a full understanding on the part of plaintiff, his mother and the defendant that they were rendered by him as a member of the defendant’s family, and were to be without other compensation.
    The plaintiff claimed that the defendant had violated the agreement by failing to treat him properly, and that he was therefore entitled to recover the value of the services rendered by Mm.

      Tnring M. Thompson, for the appellant.

      John Gu/rmeen, for the respondent.
   Talcott, P. J.:

This, is an appeal from a judgment recovered on a verdict in the County Court of Orleans county in an action originally commenced in a court of a justice of the peace. The main facts appear by a stipulation by the counsel of the respective parties made on the trial and entered on the minutes (which was as follows):

“ That the plaintiff went to live in the family of the defendant under this arrangement made with the mother of the plaintiff— his father being dead — she then living with her son in Norway, a foreign country; that the defendant should send to the mother sufficient money to bring the boy from his home in Norway to the residence of the defendant in Kendall (Orleans county, State of New York), and receive him into his family as a member thereof, and bring him up in a suitable and proper manner; clothe and educate him properly and treat him as he would if he was his son. That the defendant did furnish the necessary money to bring the plaintiff (to Kendall aforesaid,) and the plaintiff came into the family of the defendant in July, 1870, and remained there till April, 1875.”

The action was brought to recover for the work, labor and services of the plaintiff rendered for the defendant in doing farm work ; upon a quantum meruit. The defendant was the brother of the .plaintiff’s mother, who, it appears, resided in Norway in poor circumstances. It is well settled that where one man labors foi another, a presumption of fact will arise that the person for whom he labors is to pay him the value of his services, but when services are rendered between members of the same family no such presumption will arise; and where a party has lived with another, as a member of his family, to be provided for, brought up and educated as such, and that relation continues during all the time that such services were rendered, the party rendering them cannot recover for the value of such services. ( Williams v. Hutchinson, 3 N. Y., 312; Shirley v. Vail, 38 How. Pr., 406; Shirley v. Bennett, 6 Lans., 512; Sullivan v. Sullivan, 6 Hun, 658; Carpenter v. Weller, 15 Id., 134.)

A mother, as the natural guardian of her minor children, after the death of their father, is entitled to their custody and control, but she may effectually part with this right, so far as she is concerned, by contract. Whether binding on the children or not, it will be binding and obligatory upon her, and estop her from setting up any claim to the custody of the children or their wages. (Wood on Master and Servant, § 24.) The law will sometimes imply an ‘ emancipation from parental authority and control, as when the father compels or consents that his minor child shall go abroad and earn his own livelihood, or neglects to support him. (Wood on Master and Servant, § 25.) We think, under the circumstances of this case, the emancipation of the plaintiff is to be implied or presumed, and, therefore, if any action was maintainable for the services rendered by the plaintiff, it could be maintained by him, and that it was not requisite that it should be brought in the name of the mother.

There was evidence given tending to show that the defendant had not fully performed the contract, as that contract was stipulated to have been on his part, such as furnishing proper schooling, clothes and food. The court charged the jury as follows:

“ If the jury shall find from the evidence that the defendant • so received the plaintiff into his family and as a member thereof, and if he did, while the plaintiff remained in his family, taking into the account the situation and condition in life occupied by the parties, bring him up in a suitable manner, and did clothe and educate him properly, and treat him as he would if he was his own son, that the plaintiff cannot recover; but if the defendant did not do all this, then the plaintiff can recover what the services rendered by him were fairly worth, over and above all he received from the defendant by way of board, ■ clothing, moneys paid out for his benefit and services rendered by the defendant for plaintiff.”

This charge, we think, fully expressed the law applicable to the case, and was correct, and expressed with all proper limitations. (Taft v. Pike, 14 Vt., 405; Defrance v. Austin, 9 Penn. St., 309 ; Mountain v. Fisher, 22 Wis., 93 ; Lowe v. Sinclear, 27 Mo., 308 ; Squire v. Hydeliff, 9 Mich., 274.)

The other exceptions to the charge, except so far as the principles applicable to them liave been herein discussed before, were trivial, the whole substance of the charge being contained in the .paragraphs quoted above, and wo do not think that substantial justice requires that a new trial should be awarded.

The judgment is therefore affirmed.

Smith and Hardin, JJ., concurred.

Judgment affirmed.


author: Hardin, J.:

text:
    JAMES F. CONVERSE, Appellant, v. JOHN MINER and JANE FOREMAN, as Administrators, etc., of NATHAN FOREMAN, Respondents.

      Statute of limitations — an administrator' may (mail himself of it upon the hearing. of a disputed claim before a referee, without pleading it — when an activa for false rejrresentations is barred by it — when an action for a breach of warranty of title arises.

    In the spring- of 1865, one Foreman entered into a verbal agreement with one ' Jenkins and J. N. Wood, by which it was agreed that he should buy the milk from certain dairies at one cent per pound, and have it manufactured into cheese at a factory, and that each should share equally in the profits or loss of the transaction. Shortly thereafter Foreman, without the knowledge or consent of Jenkins, or J. N. Wood, entered into an agreement with the plaintiff, Converse, and one Nathaniel Wood, by which he assigned to each of them a quarter interest in his contract for the purchase of the milk, they then knowing nothing of his former agreement with Jenkins and J. N. Wood.
    The cheese made at the factory was sold by a committee, of which Converse and S. T. Wood were members. The sales were made and the money received by them. While the money was in their hands, they were notified of the agreement made by Jenkins and J. N. Wood with Foreman, but. in disregard thereof they paid one quarter of the profits arising on the sale of the cheese made from the milk so purchased by Foreman, to him, one-quarter to Nathaniel Wood, one-quarter to Converse, and one-quarter lo Jenkins. In 1867, Jenkins recovered a judgment against Converse and S. T. Wood, for the difference between the one-fourth of the profits which he had received, and the one-third thereof to which he was entitled, and also, as the assignee of J. N. Wood, for the one-third to which lie was entitled. On May 7, 1869, Converse and Wood each paid one-half of an execution issued upon the said judgment.
    Foreman died in March, 1872, and letters of administration upon his estate were issued to the defendants, to whom Converse presented a claim for damages arising from the agreements so made by Foreman, which, being disputed by them, was referred under the statute.

      Held, that Converse by his agreement with Foreman had acquired a sixth interest in the milk contract, instead of a fourth interest, as provided by the contract.
    That, so far as Foreman was liable to him, for fraud or false representations as to the facts of his ownership of the said milk contract, or as to the extent of his interest therein, the cause of action arose in 1865, and was barred by the statute of limitations.
    That the defendants could interpose the statute of limitations as a defense, upon the hearing before the referee, without having pleaded it.
    That for the breach of warranty as to Foreman’s title to the said contract, Converse could recover as damages only the difference between one fourth and one-sixth of the proceeds, viz , one-twelfth.
    That his right to sue to recover damages for the said breach of warranty did not arise until he had paid the execution issued on the judgment recovered against him by Jenkins, and was not barred by the statute of limitations.
    Appeal by the plaintiff from an order of the Oneida Special Term refusing to confirm the report of a referee, and setting aside the report and ordering a new trial before another referee. The plaintiff presented a claim to the defendants as administrators of Nathan Foreman, deceased, and they rejected it and entered into a stipulation to refer it, which was approved by the surrogate of Jefferson county and filed with the clerk of that county, and thereupon an order of reference was made. The referee heard the parties and made a report in favor of the plaintiff, which was set aside.

      B. C. LLuntim,gton, for the appellant.

      Levi LI. Brown, for the respondent.
   Hardin, J.:

In the' spring of 1865, Stearns and Kiblin offered to sell their milk from their dairies for that season for one cent per pound. -Thereafter, and about May’ 25, 1865, Foreman, Jenkins and Joseph N. Wood made a verbal agreement to the effect “ that Foreman should purchase said milk at that rate for the benefit of the three, and that each should share equally in the profits or loss of the transaction.” The milk was to be manufactured into cheese at the factory, and to be paid for from the proceeds of the sales, as the sales should be made. In pursuance of this agreement Foreman purchased the Stearns and Kiblin milk, and it was delivered at the factory and manufactured into cheese, and the cheese sold ; and the net profits of the transaction were the sum of $588.43.

Shortly after the purchase Foreman informed Jenkins and J. N. Wood of such purchase by him, and the three jointly became entitled to the profits, each being entitled to one-third thereof, to wit, $196.14. Very soon after he had made the purchase as aforesaid, Foreman, without the knowledge or consent of Jenkins and J. N. Wood, or either of them, made a verbal arrangement with the plaintiff, Converse, and one Nathaniel Wood, by which he agreed to let them each have a quarter interest in the Stearns and Kiblin milk. At the time of the purchase by Converse and Nathaniel Wood, they knew nothing of the above arrangement with Jenkins, Foreman and J. N. Wood. The sales committee of the factory for that season consisted of Converse, Simeon T. Wood and Epenetus Wood. The first two made the sales and received the money. Before they paid over the moneys or any of them, they were informed of the claims of Jenkins and J. N. Wood, by virtue of the bargain between them and Foreman, to a' third each of the surplus arising from tbe transaction witb Stearns and Kiblin. After such information Converse and S. T. "Wood, two of the committee, paid one-fourth of said surplus to Foreman, one-fourth to Nathaniel "Wood, one-fourth to Converse, and one-fourth to Jenkins, except the sum of $53.34, part of the last sale. In January, 1866, J. N. Wood demanded of the committee his interest in the surplus; the committee did not pay it, and on May 30, 1866, he assigned all his interest therein to Jenkins. In 1867 Jenkins brought a suit against Converse, S. T. W®od and Epenetus Wood, the committee, and Foreman, to recover upon his individual claim the difference between the one-fourth paid to him and the one-third to which he was entitled (besides his interest in the last sale), and to recover one-third of said surplus as the assignee of J. N. Wood; and the action was referred to Mr. II. Merwin, attorney, who reported in favor of Jenkins upon both branches against Converse and S. T. "Wood. (The complaint was dismissed without costs as to Epenetus Wood.) Judgment was entered upon the report against Converse and S. T. "Wood, with costs of the action, and an execution was issued upon the judgment, and May 7, 1869, Converse and Wood paid up the judgment and execution, each paying one-half thereof to the sheriff.

March 5, 1872, Foreman died, and letters of administration upon his estate were issued to the defendant, March 16, 1872. A claim was presented to the defendants by Converse, and disputed, and by a stipulation entered into under the statute, and an order entered in the Jefferson county clerk’s office March 11, 1874, it was referred. The referee in this case has found that “ Converse and S. T. Wood had notice during the season of 1865, of the claim of Joseph N. Wood and of said Jenkins to one-third interest each in the net surplus or profits of said milk, by virtue of an agreement between them and the said Foreman.” The referee in the former action found, as a matter of law, that Jenkins and J. N. Wood “ were each entitled to one-third of the profits or surplus proceeds of said milk.” That conclusion, as we have seen, stands unreversed. It is therefore conclusive upon Converse and Foreman, as they were both parties to that action. We must accept this conclusion as conclusive upon their rights to its full extent in the further consideration of the case. Foreman and his administrators are estopped from questioning it. And it is equally binding upon Converse, the plaintiff here, who was a defendant in that action. It follows, therefore, that when the arrangement was completed between Foreman and Jenkins and J. N. 'Wood, the latter two became assignees of two-thirds the net surplus, and Foreman was the owner of only one-tliird thereof. He could not, therefore, in fact sell or assign to other parties thereafter more than one-third of the net surplus, or more than one-third part of the profits in the milk contract with Stearns and Iviblin. When therefore Foreman made a verbal arrangement with Converse and Nathaniel Wood by which he agreed to let them each have a quarter interest in said Stearns and Iviblin milk,” he undertook to sell or assign more than he owned. lie owned one-third only and undertook to sell one-half. For, as we have seen, Jenkins and J. N. Wood were by a prior arrangement the owners, as original contractors, through Foreman, acting in their behalf, or by virtue of his agreement with, and assignment to them. This brings us to see that the. sale to Converse and Nathaniel Wood of one quarter to each, was an attempt on the part of Foreman to sell more than he possessed or owned.

Most assuredly it was competent for him to assign to Converse and Nathaniel Wood one-third of the surplus — or net profits. Such, in effect, is the first conclusion of law stated by the learned referee in the former action. He says that Foreman, after the purchase of the milk, had no right to transfer to Converse and Nathaniel Wood a quarter interest therein, to the prejudice of the rights of Jenkins and J. N. Wood. It must be assumed from the srrbsequent language of the report, that the referee intended to say “a quarter to each, Converse and N. Wood,” as he allows Jenkins to recover for his one-third net surplus in his own right and as assignee the one-third for J. N. Wood’s share — or the balance due thereon.

In the former action the referee found as a matter of law that “ Converse and S. T. Wood having received notice of the rights of Jenkins and J. N. Wood before they paid any part of the said surplus, paid a quarter interest to other parties at their own risk.” Considering this with the context, it seems to be a conclusion that so far as Converse and S. T. "Wood paid out in disregard of tbe two-thirds ownership of Jenkins and J. N. Wood, they paid at their own risk. Accepting the conclusion reached by the referee in the first action, we must hold that Jenkins and J. N. Wood became purchasers of two-thirds the net surplus or interest in the contract for the milk, and then there remained one-third, owned by Foreman.

While thus owning only one-third, he undertook to sell to Converse and Nathaniel Wood each a quarter — thus undertaking to sell to them one-half interest, while he only owned one-third. Converse and Nathaniel Wood took, under their agreement with Foreman, all the interest he had to sell or assign — to wit, one-third. Thus Converse and Nathaniel Wood each became the owner of one-half of one:third. They failed to acquire one-half, as Foreman only had one-third. Iiis vendees, Converse and Nathaniel Wood, could only acquire such interest as he had remaining at the time of his sale to them. It was found as a fact in the former action that Converse and Nathaniel Wood knew nothing of the arrangement between Jenkins and J. N. Wood and Foreman, at the time they arranged with him for one quarter each. Foreman therefore sold to them, so far as the difference between one-third and one-half, what he did not own. He thus became liable foi' a breach of his contract of warranty of title as to the excess sold over and beyond what he owned. (Bank v. Jarvis, 20 N. Y., 228; Fake v. Smith, 7 Abb. Pr., N. S., 107; Furniss v. Ferguson, 15 N. Y., 437; and S. C., 34 Id., 485.) Hpon his warranty of title or misrepresentation of the facts of his ownership he became liable to respond to them for a breach of his agreement, or for damages sustained by them by reason of his fraud. So far as he was liable, by reason of the fraud,, if it was a fraud, his liability arose in 1865, more than six years prior to the filing of the claim herein and the commencement of this action. (Andrew v. Newcomb, 32 N. Y., 417.) The claim, so far as it rested upon his fraudulent sale of what he did not own, was barred by the statute. (Sweetman v. Prince, 26 N. Y., 224 ; Foot v. Farrington, 41 Id., 164; Northrop v. Hill, 57 Id., 351.)

The defense was sufficiently raised upon the hearing. It was not necessary to plead it. It was raised upon the trial in various forms, and that must be held a sufficient assertion of the defense to enable these administrators to avail thereof. (Bucklin v. Chapin,, 1 Lans., 443 ; Tracy v. Suydam, 30 Barb., 110; Hultslander v. Thompson, 5 Hun, 349.)

As' we have stated, Foreman being the owner of one-third only, he undertook to sell one quarter to the plaintiff and one quarter of the whole to Nathaniel "Wood. Assuming that the effect of his contract with them would vest in each one-half of his ownership at the time it was made, it follows that the plaintiff acquired only one-sixth, instead of one-fourth. If we measure the interest contracted to be sold to the plaintiff, by its fractional share of the proceeds of the contract with Stearns and Kiblin, as it proved to be worth, we find that the attempted sale was one-fourth of $588, the surplus, viz., $147; whereas the actual transfer to the plaintiff was one-sixth of said surplus, viz., $98, or $49 less than he agreed to sell to the plaintiff. However, it appears that the plaintiff received one-fourth of the proceeds or surplus, and enjoyed and kept the same as owner, by the consent of Foreman, and in the belief that he was entitled thereto, as he was assured by Foreman until after the decision of the former action. The determination of that action was such that it was established conclusively between the plaintiff and Foreman, that the plaintiff Converse did not acquire from Foreman a right to one quarter of the surplus. To the extent of the difference between one-fourtli of the surplus and one-sixth of the surplus, Converse was evicted, or his title shown not to exist, and a breach of the warranty of title was shown. The contract in respect to such portion of the surplus, or interest in the milk contract, was broken. As we have seen, the essence of the contract of warranty, in the present case between Foreman and Converse, was that Foreman sold and had a perfect title to the one-quarter interest in the milk contract, or the surplus produced by it (to wit, $147) at the time of the sale, that the same was unencumbered, and that the vendee, Converse, should acquire by his purchase a title free and clear, and should enjoy the possession without disturbance by means of anything done or suffered by the vendor Foreman.” (Dresser v. Ainsworth, 9 Barb., 626; Furniss v. Ferguson, 15 N. Y., 437; S. C., on 2d appeal, 34 Id., 488, op. by J. C. Smith, J.)

Converse bad a right to rely upon bis warranty of title, till be was evicted, and when that took place his right of action for a breach of the warranty of title was complete, and his right of recovery upon payment of the difference between one quarter and one-sixtli, became complete, or for a breach of the contract of warranty to that extent. (Case v. Hall, 24 Wend., 102.) In that case the court say, “Where, however, the vendee relies on the warranty of title express or implied, there must be a recovery by the real owner, before an action can be maintained.” That case is approved in Bordwell v. Collie, (45 N. Y., 496), and G-boveh, J., says : “ The rule when the vendor fraudulently represents that be has title is different. In the latter case.an action to recover damages for the deceit will lie, although there has been no disturbance of the possession.”

If the property is taken by a paramount title, or even surrendered upon a demand, the vendee upon proof of those facts may establish a right to recover, of the vendor. .The burden in such cases is cast upon the vendee to establish the paramount title. Such is the doctrine of Sweetman v. Prince (26 N. Y., 224); Burt v. Dewey (40 Id., 283); Bordwell v. Collie (45 Id., 497); M'Giffin v. Baird (62 Id., 329). It was held in McKnight v. Devlin (52 N. Y., 399), that a vendee of personal property in case of a failure of title to a portion thereof, is not bound to rescind the contract m toto, but may retain so much as he has secured a title to, and have his damages for the loss of the residue. The referee has allowed a recovery in this case, for one-half of the damages which were recovered in the former action by Jenkins. We have seen that the recovery then was the difference between one-quarter and onetliird of the surplus, in the right of Jenkins, and by him of one-third of the surplus as assignee of J. N. Wood, thereby aggregating a recovery of five-twelfths, and the half would be represented by five-twenty-fourths or as two and one-half twelfths, which is the portion of the surplus awarded here as damages — while the difference between one-sixtli, which the plaintiff acquired the right to in virtue of Foreman’s assignment to him, and one-fourth, which he purchased, is one-twelfth. Thus stated it would appear that the recovery was for two and one-half twelfths, when it should not have exceeded one-twelfth, if the surplus is resorted to as the criterion by which to measure the damages. But it is said in Case v. Hall, supra, that “ in case of a breach of warranty the measure of damages is the purchase-money and interest.” That rule would of course coniine the damages to the sum paid for that portion of the one quarter sold, to which, as we have seen, the title failed. The referee has not found what sum was paid by Converse for the one quarter interest, nor are we able to ascertain from the evidence what, if anything, was the consideration for the purchase. We .must hold, therefore, that the damages allowed by the referee were improper. A new trial was therefore properly allowed by the Special Term.

But there is another view of the case which must be considered. When Converse and S. T. Wood received the surplus moneys they held the same in trust for the parties rightfully entitled thereto. They had notice of the claim of Jenkins and J. N. Wood, and of the supposed transaction secondly made by Foreman. They therefore paid them out at their peril. As we have seen, Jenkins was entitled to one-third, J. N. Wood one-third, and the other one-third belonged to Foreman’s assignees, to wit, Converse and N. Wood.

In the former action, Jenkins, less the one-fourth he had received voluntarily, recovered the one-third belonging to him, and he therefore did not recover any more than it was the duty of Converse and S. T. Wood to pay to him as his share and portion of the net surplus, in his individual right as original owner of one-third. So when Jenkins, as assignee of J. N. Wood, recovered one-third of the surplus which by the original agreement belonged to J. N. Wood, and which had been by him assigned to Jenkins, he only recovered what it was the duty of Converse and S. T. Wood, as committee men and trustees, to pay over for liquidation of the share of J. N. Wood. Thus we see that two-thirds of the surplus moneys reached the proper hands, and Converse and S. T. Wood were made liable for the funds, as they had paid them out at their own risk. The other one-third, as we have seen, belonged to Converse and Nathaniel Wood, as the assignees of Foreman. Thus stated, we see that one-quarter of the net proceeds, paid over by Converse and S. T. Wood to Foreman, were paid under a mistake of fact, and to Foreman when he was not entitled to receive them. Whether the statute of limitations will be a defense to the claim of Converse to recover for the one-quarter of the surplus paid over by Converse and S. T. Wood to Foreman, cannot well be conclusively determined upon this appeal, as the referee has not found the circumstances sjiecificially attending the transaction in that regard, nor does the evidence indicate whether Foreman received the one quarter claiming to own the same to the exclusion of all right thereto by Converse, nor that any demand was made of Foreman therefor. (Boughton v. Flint, 74 N. Y., 476.) The questions will be more clearly presented in another trial, which must take place, if the views already expressed prevail.

These views lead to the conclusion that the Special Term properly refused to confirm the report of the referee, and properly allowed the exceptions thereto, and directed a. new trial before another referee, with costs to abide the event.

We should affirm the order, with costs of the appeal.

Taloott, P. J\, and SMxth, J"., concurred.

Order affirmed, with costs.