text:
    Caroline V. Fitzsimons, Resp’t, v. Francis P. Fitzsimons, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 15, 1894.)

    Judgment—Satisfaction—Conditions.
    Judgment creditor may impose conditions on satisfying judgment entered Dy default.

      Appeal from an order vacating a satisfaction of judgment.

      William Kernan, for app’lt; Frank J. Hone and Henry J. Sullivan, for resp’t.
   Haight, J.

—The plaintiff is the widow and executrix of Charles Fitzsimons,' who died in 1888. The defendant, Francis P. Fitz-. simons, is a son of Michael Fitzsimons, a brother of said Charles Fitzsimons. Michael died in April, 1890. In 1884, Michael Fitzsimons failed in business, and thereafter continued insolvent and transacted business in the name of Francis, his son, who signed all the papers requested by his father, in ignorance of their contents and of the personal obligations incurred by him. Charles, in his lifetime, assisted his brother financially, and, at the time of his decease, provided in his will that his executrix should continue to indorse his brother’s paper as he himself had done, to the amount of $10,000, to aid him in his business pursuit, and, if loss be made to the estate by such indorsement or otherwise, it should be charged to the whole estate. Pursuant to such direction, the plaintiff, as such executrix, continued to indorse Michael’s paper until his death. It further appears that Michael Fitzsimons was interested in • the Clark mills, and that at the time of his failure these mills were sold upon a foreclosure, and bid in by Milton H. Thompson; that Thompson thereupon conveyed the property to Francis Fitzsimons, and that Francis executed a bond and mortgage. thereon to Thompson for $37,500, and also another bond and mortgage on the property of Charles Fitzsimons for $12,500 ; that thereafter, and in February, 1885, the Clark Mills Manufacturing Company was incorporated, with a capital stock of $150,-000, with Michael Fitzsimons as its president, and Francis P. Fitzsimons deeded the property so received by him from Thompson to the corporation, for which the stock of the company was issued to him. In 1890 the corporation became insolvent, and Thompson foreclosed his mortgage upon the property, and bid the same in upon the sale. Thereupon the plaintiff brought an action against Francis and the Clark Mills Manufacturing Company, upon the bond accompanying the mortgage running to her testator, for $12,500, and also brought another action upon a promissory note made by the Clark Mills Manufacturing Company for $1,200, indorsed by her, and which she had been compelled to pay. Judgments were recovered on default in these actions, and upon the $1,200 judgment an execution was issued to -the sheriff, who, by virtue thereof, levied upon certain personal property in the mills of the defendant, including two boilers therein, and sold the same, which was bid in by her for the sum of $1,200. In September, 1890, Francis P. Fitzsimons and Mary S. F. Sweeney, a daughter of the plaintiff, contracted with Thompson to purchase the property bid in by him at the foreclosure sale, and also contracted to resell the mill to Hind & Harrison Plush Company at a very advantageous price; and, in order to enable them to carry out these transactions, Francis, under the date of November 10, 1890, wrote Hone, one of the attorneys for the plaintiff, asking him to procure a satisfaction of the judgment procured against him upon his bond, then amounting to $16,000 and upward. At this time the plaintiff was in New York, and Hone immediately addressed her a letter, asking her to telegraph him on receipt what to do, saying that it was desirable that the matter should be closed before Saturday. It also appears that Bernard J. Sweeney, the husband of the plaintiff’s daughter, w'ho was concerned with the appellant in the repurchase and resale of the mills, saw the plaintiff, his mother-in-law, in New York in reference to the matter, and received certain instructions and communications in reference thereto, which he was directed to explain to Mr. Hone, her attorney; that he returned to Htica, where he met Mr. Hone, had a consultation with him in reference thereto, and thereafter Hone, as one of the attor- ■ neys of record, executed a satisfaction of the judgment, which it is claimed was without authority from the plaintiff, and which was vacated by the order appealed from.

We think we must treat the judgment as valid. If, as is claimed, when the action was commenced against Francis, the plaintiff represented to him that she made no personal claim against him, and would not let the judgment stand in his way in business, and would satisfy it at any time he wanted it, and if, in consequence of such representations, he neglected to interpose a defense, good grounds may exist for opening the default, and permitting him to answer; but such a motion is not now before us. The judgment was regularly obtained and entered upon default, and, treating it as valid, the plaintiff had the right to impose such conditions to its satisfaction by her as she saw fit, even to his payment thereof in full. What were the conditions imposed by her ? It is quite possible that there was no intentional fraud practiced upon her in procuring the satisfaction of the judgment. It is, however, quite apparent that her instructions were not understood, or at least not carried out, by the persons charged therewith, the effect of which was to deprive her of the judgment she held against the appellant. It appears that the appellant was a nephew of the plaintiff, and that their relations up to this time had been friendly; that, upon the execution issued upon her $1,200 judgment, she had purchased the personal property found in and about the mills, together with the boilers, which was worth about $7,000; that this property would make good her judgment upon the note of the corporation indorsed by her, and would also satisfy, in part, the $16,000 judgment. It is also apparent that at this time she did not intend to enforce the judgment against him personally. She so states in her letter to Hone of November 16, 1890; but it appears that the boilers were in the mill, and that the purpose was to convey them with the mill to the plush company. It seems that an application had been made to her for a loan of $5,000, to enable Francis and plaintiff’s daughter, May, to purchase and resell the mill, and that the plaintiff was willing to make the loan. Her terms in this respect were specifically stated in the instructions accompanying her letter of November 14th, to her attorney. In it she says : 11 Bernard (referring to her son-in-law) will explain to you that they need, to complete their sale, the sum of $5,000. I am willing to advance that amount, upon terms which I will write on a separate sheet, * * * In making these terms, I have in mind the notes I have paid, and the facts that my chattels there must be worth, including the boilers, about $7,000.”

Upon the separate sheet was the following: “ I will advance, $5,000 to complete the purchase, providing—First. The whole property be conveyed to me by deed from'Mr. Thompson, and that the clear title of. the whole be assured. Secondly. That the sale of no part which is now contracted for by the new purchasers be made by me, the purchase money to be paid to me, and the new mortgage of $25,000 to be taken by tne, in my name; the whole to be held by me until I am ready to.convey to Frank and May. Thirdly. All taxes, insurance, and expenses of purchase to be paid by Frank and Bernard. In consideration of the above —First. I promise to release Frank from the judgment. Secondly. I give to May my entire claim on the boilers and other chattels. Thirdly. At any time, upon payment to me of $12,000, I promise to convey to Frank and to May, share and share alike, the remainder of the Clark's mills property, namely, that not included in the present sale to the new purchasers, and also the mortgage for $25,000, above mentioned. Fourth. The agreement to sell in last claim is to hold good for two years. If in that time the $12,000 is'not paid, I shall reserve the right to dispose of it to the best advantage possible.”

It appears that other arrangements had been made, so that the loan from her of $5,000 was not made, and. her proposal was not accepted. It is, however, evident that she made a claim for $7,000 upon the boilers, and that she was willing to discharge the judgment upon receiving payment or security'thereof. In her letter of November 16, 1890, she says : “It is true I did not intend to enforce the judgment against Frank personally, but, finding a disposition to take possession of the most valuable chattels remaining to me as an offset for my losses, I sent word to you by Bernard that my consent for the release of the judgment was given for the purpose of removing an obstacle to the sale of the mill, and only upon condition that my interest should be otherwise fully protected.”

As we understand, she demanded payment for the boilers, or security therefor, as a condition for discharging the judgment. As we have shown, this condition she had the right to impose. It is quite possible that she may not have had good title to the boilers, for the reason that they were a part of the realty, and passed under the foreclosure sale; but, whether she did or not, it makes no difference, for she had the right to demand payment of the $7,000 before she discharged the judgment. Exact justice may be done as between the parties by carrying out demands in that regard. The order appealed from should be affirmed, with $10 costs and disbursements, unless the appellant, within such time as shall be fixed by the special term upon notice, pays to the plaintiff the sum of $7,000, with interest thereon from November 14, 1890 ; and, if such payment is made, the order appealed from is reversed, and the motion denied, without costs of this appeal to either party. AIL concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Edwin A. Robbins, Resp’t, v. Springfield Fire and Marine Insurance Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Trial—Direction of verdict.
    A request by both parties for the direction of a verdict is equivalent to consent to submit the facts to the court.
    2. Same—Submitting specific question^, pf fact.
    A party, who has requested a direction of a verdict, must make request to submit specific questions to the jury, in order to do so before the final disposition of the case.
    3. Insurance—Fire—Conditions—Waiver.
    Knowledge of the company’s agent that the property is subject to a chattel mortgage is a waiver of a condition that it should be void, if incumbered by a mortgage.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.

      Walter H. Smith, for pl’ff; William N. Cogswell, for def’t.
   Haight, J.

—This action was brought to remove upon on insurance policy the loss sustained by a fire. The policy was dated the 28th day of January, 1892, and was issued by one Falkner, the defendant’s agent, upon personal property situated in Le Roy, which was destroyed by fire on the 9th day" of February thereafter. The answer admitted the allegations of the complaint, but alleged as a defense that at the time the policy of insurance was issued the property insured was incumbered by a chattel mortgage given by the plaintiff to one McKay to secure §350. Upon the trial the defendant assumed the affirmative, and gave evidence of the existence of the mortgage. The plaintiff then gave evidence tending to show that Falkner, the defendant’s agent, knew of the existence of the mortgage, and that plaintiff, on the day upon which the policy is dated, deposited in Lathrop’s Bank, at Le Roy, the money with which to pay the mortgage in full, and then notified Falkner that he had done so, and that the mortgage was held in Oeneseo and that the money would have to be sent to that place before the mortgage could be paid; that Falkner then informed him that, if he had deposited the money in the bank, he would insure him from noon of that day. It also was made to appear that the money was in fact deposited as stated by the plaintiff ; that it was received by one Doty, the agent of the mortgagee, on the 3d day of February thereafter, who on that day executed a satisfaction of the mortgage. On behalf of the defendant, Falkner was sworn as a witness, and stated that that plaintiff called upon him, and made application for insurance, a few days before the 28th, and that he told him that he could not insure the property if it were covered by a chattel mortgage ; that the plaintiff then replied, “I am all clear now, or at least I have money in the bank to pay it, and it will be paid immediatelythat he saw the plaintiff again in reference to the policies before they were issued; that he came to the office, and wanted to know why they had not been issued; and that the witness then told him he would issue them immediately. This conversation was about two days after the first. At the close of the evidence the defendant’s counsel asked the court to direct a verdict for the defendant upon the ground that at the time the policy was issued the property was incumbered by a chattel mortgage. This motion was denied. Thereupon, the plaintiff’s counsel asked court to direct a verdict in his favor for the amount due under the policy, and this motion was granted. The defendant then took an exception to the direction of a verdict in favor of the plaintiff, and then asked to be allowed to go to the jury upon the question whether or not, at the time the policy was issued, the agent knew of the existence of the chattel mortgage. This was refused, and an exception was taken.

The parties having united in asking the court to direct a verdict, each is deemed to have agreed that the facts might be determined by the court; and if there is any evidence to uphold the decision it will be sustained. Dillon v. Cockcroft, 90 N. Y. 649; Mayer v. Dean, 115 N. Y. 556; 26 St. Rep. 375; Baylies, Tr. Pr. 230. The finding of the trial court was in accordance with the testimony of the plaintiff, and it is therefore supported by evidence. It is true that the defendant, after asking for a direction of a verdict, upon being refused, had the right to request the court to submit specific questions of fact to the jury; but this should have been done before the court finally disposed of the case by directing a verdict in favor of plaintiff. But, assuming that the request was made in time, we are inclined to the view that there is not such a variance between the testimony of the plaintiff and Falkner as to require-a new trial. It appears from the testimony of Falkner that he knew of the existence of the mortgage; that money had been deposited in the bank for its payment. This he knew on the occasion of the plaintiff’s application to him for insurance. He states that nothing was said in reference to the mortgage on the day on which he issued the policy. He therefore issued the policy without knowing or inquiring as to whether the mortgage had actually been paid or discharged. We disco ver nothing in his testimony that is in conflict with the testimony of the plaintiff, who states, a little more in detail, that the money had been deposited in the bank, that it had to be sent to Greneseo in order to make the payment, and that the payment would be made as soon as possible; and, according to the plaintiff’s recollection, this was satisfactory to Falkner, who stated that he would make the insurance from noon of that day. Upon these facts, we think there can be no doubt but that there was a waiver of the provisions of the policy making it void if the property was incumbered by mortgage. Berry v. Am. Cen. Ins. Co., 132 N. Y. 49; 43 St. Rep. 400; Cross v. Nat. F. Ins. Co., 132 N.Y. 133; 43 St. Rep. 482; Woodruff v. Imperial F. Ins. Co., 83 N. Y. 134; Van Schoick v. Niagara F. Ins. Co., 68 N. Y. 434; Forward, v. Continental Ins. Co., 49 St. Rep. 867; 21 N. Y. Supp. 664.

The defendant’s motion for a new trial should be denied, with costs, and judgment ordered for the plaintiff upon the verdict.

All concur.


text:
    Allen M. Burrill, Resp’t, v. George Hollands, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Execution—Delivery to sheriff.
    The leaving of an execution at the place of business of a deputy, in his absence, is not a delivery to the sheriff.
    Appeal from a judgment, affirming a judgment of a justice’s court in favor of plaintiff.

      F. H. Robinson, for app’lt; A. M. Burrill, in pro. per.
   Haight, J.

—-This action was brought to recover money alleged . to have been collected by the defendant upon the plaintiff’s execution. It appears that the plaintiff and one Leroy Biddle had each obtained a judgment against one Harvey G. Lason; that each procured an execution to be issued upon his judgment, and delivered the same to the sheriff of the county, who, by virtue thereof, levied upon and sold personal property of Lason, and made thereon $>30.20. Both plaintiff and Biddell claimed the money, and the only question to be determined in this case is as to which execution was first delivered to the sheriff.

Riddell testified that he got his execution on the night of December 28, 1892, and went to deputy sheriff Williams’ office; that he was not at home; and that the next morning he again went to his office, between 9 and 10 o’clock in the forenoon, and gave him the execution. Deputy sheriff Williams, in his testimony, corroborates Riddell, and states that he received his execution not later than 10 o’clock in the forenoon of the 29th day of December, 1882. This evidence is not disputed. The plaintiff introduced his execution in evidence, from which it appears that it was dated December 28, 1892, and indorsed thereon as received December 29, 1892, 1 p. M„ by the sheriff, per Williams, his deputy, and returned wholly unsatisfied February 24, 1893. He, however, testifies that deputy sheriff Williams is a butcher, and keeps a'meat market at the village of Oanisteo, and that on the 28th of December, 1892, at about 12 o’clock noon, be went to Williams’ place of business, and inquired for him, and was informed by a man who worked in the market that Williams was not there ; that thereupon he “ left the execution there, at his place.” It does not appear whether he delivered it to the man who was working for Williams in the meat market, or whether he left it upon the table, desk, or in what particular place it was deposited. Williams testified that the execution was delivered to him December 29th, between 11 and 12 o’clock, by the plaintiff, and after the Riddell execution.

The sheriff to whom an execution is directed and delivered must, upon receipt thereof, indorse thereupon a memorandum of the day, hour, and minute when he received it. Code Civ. Proc. § 1363. Upon the.plaintiff’s execution, we find such an indorse- ■ ment. It is, however, that it was received at 1 o’clock on December 29.

His deputy says that he received it between 11 and 12 o’clock of that day, but states that this was after the Riddell execution had been delivered to him. It thus becomes important to determine whether there was an earlier delivery of the execution to the sheriff. This depends upon the testimony of the plaintiff as -to what he did the day before. As we have seen, he took the execution, went to the meat market of Deputy Williams, found he was not there, and then left the execution “ there, at his place.” Was this a delivery to the sheriff ? If so, how could the sheriff perform his statutory duty of indorsing the day, hour, and minute that it was delivered to him ? The sheriff of the county is. required to keep an office in some proper place in the city or village in which the county courts of the county are held, of which he shall file a notice in the office of the county clerk, and he shall keep the same open, except Sundays, and other holidays declared by law, from 8 o’clock in the morning until 9 o’clock in the evening; and every notice or other paper required to be served upon ány sheriff may be served by leaving , the same at the office designated by him in such notice, during the days and ho'urs for which he is required to keep such office open. Laws, 1892, ch. 686, § 184. Canisteo was not the county seat, or the place where the office of the sheriff was established. The place where the execution was left was but a meat market or store kept by one of the sheriff’s deputies. A delivery of an execution to the deputy in person,-doubtless, would have been, in contemplation of law, a delivery to the sheriff. He then could make the indorsement required by the statute. But the leaving ‘ of it in some undescribed place in the meat market of one of.his deputies is not a delivery to the sheriff. We are, therefore, of the opinion that it appears from the undisputed evidence in the case that the Riddell execution was first delivered to the sheriff, and that the verdict is against the evidence. The judgment of the county court and that of the justice should be reversed, with costs in this and the courts below.

All concur.


author: Lewis, J.

text:
    Edward F. Wilson et al., Resp’ts, v. Niagara City Land Company et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Mechanic's Lien—Foreclosure—Defendants.
    An action to foreclose a mechanic’s lien maybe prosecuted by defendant claimants, after settlement of plaintiff’s claim, though they did not serve their answers on the owner.
    Appeal from a judgment in favor of the defendants.

      C. S. Oroton, for app’lt; Lewis T. Paine, for resp’ts.
   Lewis, J.

—This action was brought to foreclose a mechanic’s lien upon premises owned by the appellant, situate in the village ■of North Tonawanda, Niagara county. The appellant had, by written contract, sold the land in question to the defendant Hewit, on condition that Hewit should build a factory upon the land. The plaintiffs and the respondents furnished labor and materials to Hewit, which were used in constructing the factory, all of which was known and consented to by the appellant. The plaintiffs and respondents, respectively, duly filed mechanic’s liens upon the premises. Notice thereof was duly given to appellant and defendant Hewit. An action was commenced by the plaintiffs in the supreme court to foreclose their "lien. It was stated in the complaint, after the proper allegations in reference to the plaintiffs’ lien, that the respondents had duly filed notices of liens against the premises. Judgment was demanded that the plaintiffs be adjudged to have a lien upon said building and appurtenances for the amount of their claim, and that the interest of the appellant and the defendant Hewit in the premises should be sold, and that, out of the proceeds of the sale, the plaintiffs’ claim be first paid, and then that the claims of the respondents, so far as they shall establish valid liens upon the premises under their notices filed, be paid out of the proceeds, if there were moneys sufficient applicable thereto, and that the court settle and determine the equities of all the parties. The appellant interposed an answer, putting in issue the allegations of the complaint, and denying any knowledge or information sufficient to form a belief as to the alleged filing of the respondents’ liens. Bach and all of the respondents interposed answers, alleging their several liens and the particulars in relation thereto, and asked for judgment for a sale of the premises and the payment of their respective claims out of the proceeds arising therefrom. The action was duly noticed for trial, by the respective parties serving notices thereof upon each other. It was placed upon the calendar by the parties, but, before it was reached for trial, the appellant adjusted and paid the plaintiffs’ claim, and received from the plaintiffs’ attorney a stipulation to the effect that the claim was settled; that the action would not be further prosecuted by the plaintiffs; and that, so far as the plaintiffs were concerned, the action might be discontinued without notice to them. After the said settlement was made, the court, at the request of plaintiffs’ attorney and the attorney for the respondents, in the absence of the appellant’s attorneys, fixed a day for the trial of the cause. The appellant’s attorneys were notified that a day had been fixed for trial of the cause, and one of them, at the. request of the respondents’ attorney, appeared in court, and was there informed by the presiding judge that a time had been fixed for the trial of the cause. No objection was made by him at the time, but on the day designated for the trial, he appeared in court; and, when the cause was moved for trial by the respondents, he, for the first time, objected to the trial proceeding, for the reasons that the claim of the plaintiffs had been settled, and that the respondents had not served upon the appellant’s counsel a copy of their answer as provided for by § 521 of the Code of Civil Procedure. His objection was overruled by the court, and the trial of the action was proceeded with, and the court rendered its decision, adjudging the amount of the various liens of the respondents and directed judgment for the sale of the premises and the payment of the respective claims of the respondents out of the proceeds of the sale, etc. The respondents were at the expense of subpoenaing witnesses and attending court on the adjourned day. The appellant made a motion to vacate and set aside the judgment upon the ground that it was void and irregular for the reason “that no pleadings or notice of proceedings of said defendants to obtain judgment for the sale of the property, or affecting these defendants’ title to this property, has ever been served upon the defendant or any person or officer of the defendant in its behalf.” The motion was denied, and from the order denying such motion this appeal was taken. While the notice of appeal is from the judgment and order, there is nothing in the record showing that the judgment in every respect, except the one mentioned, was not just and regular.

It is the contention of the appellant that the respondents were not at liberty to try the action without having first served upon the appellant a copy 'of their answer. It is provided by the mechanic’s lien law (chapter 342 of the Laws of 1885) that a person who furnishes labor or materials for constructing a building may file his lien in the clerk’s office of the county. It must be verified. A copy thereof must be served on the owner of the premises. The claimant may institute an action to foreclose his lien. He is required to make all the parties who have filed notices of liens against the property, as well as those who are subsequent lienors or claimants, by judgment, mortgage, or conveyance, parties defendant. It is provided by § 6 of the act that, when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant who is a claimant within the provisions of the act. The claimants who are thus made defendants may answer, setting forth their claims, and the court in which the action is brought may settle and determine the equities of all the parties thereto, and decide as to the extent, justice and priority of the claims of all parties to the action, and upon every .counterclaim or set-off alleged therein, to the extent of the jurisdiction, of the court. The manner and form of instituting and prosecuting such action to judgment, and an appeal from such judgment, shall, be the same as in actions for the foreclosure of mortgages upon real property. As we have seen, the plaintiffs served their complaint upon the appellant and respondents, respectively; but neither the appellant nor the respondents served their answer upon one another.

The only question raised by this appeal is as to the jurisdiction of the court, under the circumstances, to proceed with the trial of the action, after a settlement of the plaintiffs’ claim, the respondents not having served their answer upon the appellant. It was stated in the plaintiffs’ complaint, which was served upon the appellant, that the respondents had filed their respective liens in the clerk’s office of the county, and the appellant, by its answer, put in issue that allegation of the complaint. The particulars of the respondents' claims were fully set out in the liens which were duly filed in the county clerk’s office by the respondents, respectively. The statute requires that the liens be verified and filed, and a copy served upon the owner of the premises. He is thus fully advised of the claim, as fully as he would be by the service of a copy of the answer. The lien law contemplates that the action shall be prosecuted to enforce the liens of the defendants with the same force and effect as that of the plaintiffs; and it cannot with propriety be claimed that the action should be discontinued because the plaintiffs’ claim had been adjusted. Such a construction of the statute might work great injustice to the defendants, for the act provides that a lien shall not continue for a longer period than one year after the notice of the lien has been filed, unless within that time an action is commenced to enforce the same. If the owner of the property,by settling the claim of the plaintiffs, could obtain a discontinuance of the action, the year limitation might run against the defendants’ claim, while they were waiting for the trial of the action. It was held in Abham v. Boyd, 5 Daly, 321, that if a claimant, instituting proceedings, becomes in any way disentitled to continue the proceedings, any other lienor who has appeared in the proceedings may continue them for the enforcement of his own lien.

We are of the opinion that the respondents were not required to serve their answers upon the appellant in order to be entitled to try the action, but, if it should be held otherwise, we think this order appealed from should be affirmed; for, as we have seen, the appellant is not in a position to review the judgment. We can. only consider the appeal from the order. The court had jurisdiction of the subject-matter and of the parties. Issues for trial had been framed by the plaintiffs’ complaint, and by the several answers of the defendants. As stated, the appellant, after the' settlement of the claim of the plaintiffs, appeared in court by its attorney, and consented to the fixing of a day for the trial of the action. No suggestion is made that the claims of the respondents, as found by the trial court, were not in all respects just and proper, so that no injustice in fact has been done to the appellant. An irregularity, simply, is relied upon; and, to entitle a party to ask to have a judgment set aside for that reason simply, it should appear that he is prejudiced by it some way to his injury. Green v. Warren, 14 Hun, 434. This the appellant has failed to show. No merits were sworn to by the appellant.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., concurs; Haight and Bradley, JJ., concur in the result.


text:
    William Miller et al., Resp’ts, v. Elijah Boyer, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Trial—Direction of verdict.
    The testimony of a party to the action was held, in this case, not to be sufficiently corroborated to justify the direction of a verdict in his favor.
    Appeal from a judgment entered on a verdict directed by the court in favor of the plaintiffs, and from an order denying a motion for a new trial made on a case and exceptions.

      Quincey G. T. Parker, for appl’t; Elbridge L. Adams, for resp’ts.
   Lewis, J.

—This action was brought upon a promissory note for $100, given by the' defendant, payable to W. J. Curtis or bearer, for seed grain. It is what is generally known as a Bohemian seed-grain note. The defendant concededly made the note, but claims it was obtained from him by fraudulent means, and that the plaintiffs are not bona fide holders thereof for value before maturity. The note was obtained from the defendant by an agent of a Pennsylvania seed company. It is not necessary to rehearse the means resorted to, to obtain the note. They were subsequently the same as have boon stated so many times in these Bohemian note cases decided by this court. The defendant unquestionably consented to make the note, with a full and complete understanding of the scheme stated to him by the agent of the company. The agent stated to him just how it was proposed to be operated ; the defendant expected to realize a profit of $100 out of the enterprise if the seed company performed its part of the agreement. The plan did not involve the expenditure of any money or labor by him. He was disappointed for the reason that the company failed to sell his crop of oats the following year as agreed.

This court held in Watson v. Blossom, 18 St. Rep. 726; 4 N. Y. Supp. 489, upon a similar state of facts, that the burden of proof was upon the plaintiff to show that he was a bona fide purchaser of the note for value before maturity. The trial court so held in this case, and the plaintiff, to show that they were such bona fide holders, called as a witness, the plaintiff Ettcnheimer. His testimony tended to show that the plaintiffs purchased the note in suit before maturity of a Mr. Parsons, and that at the same time they purchased of Parsons two other small notes ; that they paid for the notes in jewelry. Some of the facts testified to by Mr. Ettcnheimer should have had a tendency, perhaps, to raise a suspicion in the minds of the plaintiffs that it- was a Bohemian note, and required them, in order to be considered bona'fide holders, to have made a more careful and particular examination than they did into the facts attending the making, of the note; but, assuming that the facts testified to by Ettenheimer, if true, established that the plaintiffs were bona fide holders of the note for value before maturity, he being one of the plaintiffs, his veracity was a question for the jury. Canaj. Nat.Bank v. Diefendorf, 123 N.Y. 191; 33 St. Rep. 389 ; Bookheim v. Alexander, 64 Hun, 458 ; 46 St. Rep. 200; Goldsmith v. Coverly, 56 St. Rep. 857 ; 27 M. Y. Supp. 116,—and it should have been submitted to them for their determination unless his testimony was, as to its material facts, corroborated by testimony coming from a disinterested source. The only other witness called by the plaintiffs were Charles Beemer. Ettenheimer had testified that the note was delivered to him by Parsons before they purchased it with the view of enabling the plaintiffs to investigate and satisfy themselves as to its genuineness; that he had purchased other seed-grain notes of the father of Mr. Parsons; and that he understood that a Mr. Kurz had purchased such notes, and therefore he called upon him and made inquiry as to the notes; that he was informed by Kurz that he had purchased many of them, and that they had always been paid; that, when he went to make the inquiry of Kurz, he found Mr. Beemer and a man by the name of Pote in Kurz’s store; that Kurz had since died, and Pote had left the state. Beemer testified: “I reside in Rochester, and have an office approximate to Kurz’s tailor establishment. I was present in 1889 when Mr. Ettenheimer, who has just been on the stand, came to Kurz. I heard Mr. Ettenheimer ask Kurz if he considered those notes good. Showed him the notes, and Kurz told him that he did; that he had been dealing in the notes, and they were always paid; that he had taken them. I just heard a little of the conversation. I was standing four or five feet away, and I wasn’t listening exactly to the conversation until Mr. Ettenheimer spoke in a little louder voice. I heard him say something about those notes. These two or three sentences is all I heard. I wasn’t present at Ettenheimer’s when any of this talk was had."

It may well be doubted whether this evidence of Beemer’s in any material respect corroborated the testimony of Ettenheimer. Beemer did not identify the notes. He left it uncertain whether the note in suit was one of the notes concerning which the inquiry was made. His evidence fails to corroborate Ettenheimer’s evidence as to what was paid for the note, or whether there was anything paid for it, or as to the time that the plaintiffs actually purchased the note. His evidence simply shows the quite unimportant circumstance that Mr. Ettenheimer was inquiring of Kurz about some notes. The only other piece • of corroborating evidence is' the letter from the postmaster at Alden in reply toan inquiry from Mr. Ettenheimer, to the effect that he knew the maker of the note, and considered him honorable and upright, and good for the amount of the note. It does not seem to us that the testimony of Mr. Ettenheimer was so far corroborated upon the material facts incumbent upon the plaintiffs to establish as to justify the trial court in taking the case from the jury.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.


text:
    Town of Sardinia, Resp’t, v. David Butler, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Highways—Obstructions—Notice.
    Under chap. 568 of 1890, the notice to remove encroachment simply requires a description specifying the extent and location of the encroach- . ment.
    2. Same.
    The notice, in this case, was held to describe sufficiently the encroachment.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on ' the minutes.

      A. J. Knight, for app’lt; Willard H. Ticknor, for resp’t.
   Lewis, J.

—This action was originally commenced in a justice’s court to recover the penalty provided by § 105 ctf chapter 568 of the Laws of 1890, to be recovered of a person who shall neglect to remove an encroachment made by him upon a highway after he shall have been duly notified to remove the same. The defendant interposed the plea of title to the land, and thereupon the justice-court action was discontinued, and this action was thereafter commenced in this court. The defendant was the owner of a farm upon the north side of the highway in question. The highway was laid out and recorded in the year 1822. It was worked and used as a three-rod road from the time it was opened down to the time of the commencement of this controversy, in all some 50 or 60 years. The defendant purchased his farm about the year 1866, and along about 1872 he caused a survey of this highway to be made, and finding as he supposed, that it was not laid out according to the original survey, he caused his road fence to be moved to the south, out into the road, along the entire length of his farm, upon a line where he claimed the true survey located the north line of the highway. The highway, as it was originally laid out, was worked and used by the public. Its boundaries along opposite the defendant’s farm had become clearly marked and designated by fences, dwelling houses, and other improvements located along and contiguous to the road. The highway commissioner served upon the defendant a notice to remove the encroachment, which the defendant neglected to do, and this action was commenced. The plaintiff recovered a verdict for the $25 penalty provided for in the act. The principal question raised by the defendant is as to the sufficiency of the notice served upon him to remove the encroachment. The statute provides that “the commissioners of highways shall serve upon the owner or occupant of lands adjoining that part of a highway within their town in which any obstruction or encroachment may exist, a notice specifying the extent and location of such obstruction or encroachment and directing such owner or occupant to remove the same within a specified time no more than sixty days after the service of the notice; ” and provides a penalty of $25 for a neglect or refusal to remove the obstruction. As stated, the boundaries of the highway had been established for many years on the line of the original survey, and were plainly to be seen. The defendant was well acquainted with them. Believing them to be erroneously located, he caused the fences complained of to be moved into the highway. The notice served upon him was, in substance, that, the highway commissioner having ascertained that the highway was encroached upon upon the north side along defendant’s lands by a fence or fences erected by him or by some former occupant, and which forms a part of the inclosure of said land, he had caused a survey to be made, and ascertained the northerly bounds thereof along the defendant’s lands, “and that said fence or fences encroach upon said highway along the whole of your said land to the westerly line thereof, at different distances ranging from seven feet four inches to fifteen feet (as more particularly appears by reference to a map thereof, now in my possession, and which you are at liberty to inspect at any time), and that all the narrow strip or piece of land which lies under such fence or fences and the northerly line of said highway is a part of the public highway aforesaidand then follows a direction to remove the fence within 20 days. The defendant claims that the extent and location of the encroachment were not sufficiently definite. The purpose of the statute in requiring the notice obviously is to inform the party who it is claimed has encroached upon a highway the particulars of the encroachment, so that he can, if he desires, remove it. This notice accurately describes the extent of the encroachment so far as concerns its length. He is told that it extends the whole length of his farm, which was, as appears from the evidence, about 250 rods. The width of the encroachment is stated to be from 7 feet 4 inches to 15 feet. While the notice was somewhat indefinite as to the extent of the encroachment, it would have been impracticable to have accurately mentioned the exact distances for the entire length of the defendant’s farm. The defendant was informed by the notice that a map, giving a more particular description of the encroachment, was in the hands of the highway commissioner of the town, which he was at liberty to see at any time if he wished so" to do. This map was produced upon the argument. It contains an accurate, detailed description of the extent of the encroachment. It may be true, as claimed by the counsel, that the defendant was under no legal obligations to visit the commissioner with a view of inspecting the map. He was at liberty, however, so to do, and it is entirely apparent from the record before us that he was not in any manner misled or influenced in his action by the insufficiency of the description in the notice, his claim being that the true location of the north line of the road was upon the line of the fence as built by him. If he had desired to comply with the directions in the notice, he could have done so, for he knew the location of the fence as it was before he moved it. We are of the opinion that the description of the encroachment in the notice, in view of the information the defendant had of the old line, and in view of the information that he was at liberty to obtain by an inspection of the map, should be held, under the circumstances, to have been a compliance with the statute. Under the former act, providing for the notice of obstructions upon highways, the commissioner was required to specify the breadth of the road originally intended, the extent of the obstruction or encroachment, and the place or places where the same shall he. It was held in Spicer v. State, 9 Johns. 358; Doughty v. Brill, 36 Barb. 494; and Mott v. Commissioners, 2 Hill, 472, that a failure to give description of the encroachment in the notice was fatal to the plaintiff’s right to recover. There is, it will be observed, a difference between the requirements of the notice in the two acts. Under the act of 189'0 it is not necessary to mention the width of the road originally intended. Under the former act the extent of the obstruction or encroachment, and the place or places where the same shall be, were required to be stated. Under the present act the notice simply requires a description specifying the extent and location of such encroachment. The complaint alleged that it had become a highway by user for more than 25 years prior to the wrongful acts of the defendant, of the width of at least 3 rods, and that by the constant and continuous use thereof by the public for said period the town had acquired an easement therein, which was well known to the defendant. The defendant by his answer, denied each and every allegation of the complaint, and further denied that the place or places of said encroachment were a part of a highway, or had ever been a highway; that the fences and alleged obstructions or encroachments along said highway are upon the lands of the defendant, andnot within the limits of any highway; and denied that the plaintiffhad any right of waythereon. The plaintiff established the existence of the highway by evidence of user simply. The defendant produced record evidence of the survey and laying out of the road in 1822, and thereupon claimed that the burden was on the plaintiff to show by affirmative evidence that the highway was laid out according to the survey; and further, that, as the plaintiff had alleged in its complaint a highway by user, it could not recover if the jury should find that it was a recorded road. The court held that the presumption w-as, after such a lapse of time, that the highway was upon the true line as contained in the order, and that the plaintiff could recover under the complaint as well for a recorded highway as for one by user. The rulings, we think, were right.

We have examined the exceptions of the appellant to the admission and rejection of evidence and to the charge of the court, and find nothing in them calling for a reversal of the judgment. The judgment and order appealed from should be affirmed.

All concur.


author: Parker, J.

text:
    Francis Charles Le Marchant et al., Pl’ffs, v. John G. Moore et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Principal and agent—Pledge by agent.
    An undisclosed principal is entitled to his property, pledged by his agent, in preference to such agent's assignee for benefit of creditors.

      Controversy" submitted without action on an agreed statement of facts, pursuant to § 1279 of the Code.

      Charles W. Pierson, for pl’ffs; George Hoadly, for def’ts.
   Parker, J.

—Plaintiffs, in September, 1891, ordered Evans & Co., of Boston, to buy and forward to them 200 shares of St. Paul, Minneapolis k Manitoba stock, with whom plaintiffs had on deposit the money with which to pay for if. Evans & Co. ordered defendant to buy it for them, which they did, charging the price paid in their general account with Evans & Co., retaining the stock, together with other stocks and bonds, as collateral security for such general account. October -22d, following, defendants, pursuant to the directions of Evans & Co., delivered 100 shares of the stock to the Bank of British North America, for the credit of these plaintiffs. The remaining 100 shares, which are the subject of this controversy, continued in defendants’ possession. Two days later, Evans & Co. made a general assignment for the benefit of creditors. Shortly thereafter, plaintiffs ascertained that this stock was in defendants’ hands, and thereupon notified them that they were its owners, requested delivery thereof to them, and information with regard to any charges or claims which defendants might have against the stock, and further requested that, on any sale of collateral whicli defendants might make for account of Evans & Co., they should sell this stock last, and give plaintiffs notice of the time and place of sale, and account to them for the proceeds thereof. This was the first information 'received by defendants that the stock had been purchased for plaintiffs. Defendants declined to deliver the stock to the plaintiffs, to impart any information upon the subject, or to recognize plaintiff’s claim in any way. At all times after the purchase by defendants of such stock, the market value of the securities held by them as collateral to Evans & Co.’s account exceeded the amount of their indebtedness to them. Thereafter, and before January 20, 1892, in pursuance of instructions given by the assignee of Evans & Co., defendants sold all of said securities, except 25 shares of Ensley Land, of uncertain value, 1,100 shares of Boston Air Line, worth $1,100, and the 100 shares of the stock in controversy, the proceeds being applied upon the general account of Evans & Co., leaving a balance still due the defendants of a little less than $6,-000. On the date last named, defendants sold said 100 shares of stock, and with the proceeds canceled the remaining indebtedness of Evans & Co. to them, and turned over the balance, amounting to $5,324.66, together with the Ensley Land and Boston Air Line stock, to the assignee of Evans & Co. All this was done without notice to plaintiffs, and without their knowledge or consent Plaintiffs, not having received their stock or anything upon account thereof, claim that they were at least entitled to have received the sum which defendants turned over to the assignee of Evans & Co., it being a part of the moneys received by defendants directly from the sale of stock purchased by Evans & Go. for them. To this contention the defendants, in effect, reply: “True, you were the real owner of the stock, the undisclosed principal of Evans & Co., but,we did not know it at the time the stock was purchased, and therefore we were not bound to recognize your claim when the fact did not come to our knowledge. It was our right, if we chose, to turn the proceeds of your stock over to the assignee of your wrongdoing agents. Whether you should ever come to your own was no concern of ours, for, as we knew you not in the beginning, the fact that you should afterwards como to our attention, bearing the evidence of ownership to the stock then held by us in pledge, imposed upon us no legal duty towards you. It is true that the legislature has provided a way by which the courts can require two hostile claimants for money or chattels in the hands of a third person to contest the matter as between themselves, without expense to the third person willing to deliver the property or pay over the money ; and we might have availed ourselves of this provision of the statute, or brought an action in equity, against the assignee of Evans & Co. and these plaintiffs, and had the rights of the parties established, and justice fully done without injury to ourselves; but, for some reason which we do not disclose, we preferred to pay it to one who in good conscience ought not to have had it, because it was the proceeds of property belonging to his assignor’s principals, who were not disclosed when the purchase was made. We claim that the law supports our position, because there were no contractual relations existing between us. There was no privity of contract nor of estate.”

It would be unfortunate, indeed, if the law was not modeled on a broader plan than defendants’ conception of it. Before referring to the cases which we think established the legal unsoundness of defendants’ position, we call attention specially to the fact that plaintiffs’ stock was sold in order that defendants might obtain so much of the proceeds as was necessary to liquidate the remaining indebtedness of Evans & Co. to them. This action on their part is not open to criticism, because, while the stock really belonged to the plaintiffs, that fact was not known to the defendants until after the failure of Evans & Co., and there had then arisen such equities in their behalf as entitled them as pledgees to sell the stock, for the purpose of paying the balance of the indebtedness on general account for which they held the stock in pledge. But, after such indebtedness was fully satisfied, there remained in their hands $5,324.66,—money of right belonging to the plaintiffs, so far as this record discloses, because the direct proceeds of stock of which they were the general owners,—and of that fact defendants had due notice before paying it over to the assignee of Evans & Co., who, as defendants’ agents, omitted to disclose their principal, and otherwise neglected to perform their duty. In 1884, E. K. Willard & Co., a firm of stockbrokers, found themselves in precisely the same position as were these defendants, but the action taken by them was quite different. Westcott & Co., of Syracuse, had been in the habit of receiving orders from local customers, and then given orders to E. K. Willard & Co. to purchase the stocks, without informing them of the names of the purchasers, and they were made for account of Westcott & Co. One Everson, in October, 1884, ordered Westcott & Co. to purchase for him 100 shares of C. E. & P. E. stock, and they in turn directed Willard & Co. to buy it, which they did, crediting Westcott & Co. with it on their books, and debiting them with the price paid. About two months later, Westcott & Co. failed, owing Willard & Go. a substantial sum. After the failure, Everson demanded of Willard & Co. the amount advanced by him on his purchase, which being refused, he demanded the stock, at the same time tendering the amount of the purchase price unpaid, which was also refused; Willard & Co. disclaiming any knowledge of Everson in the transaction, and claiming Westcott & Co. as their principals. But after selling the stocks about which there was no controversy in relation to the ownership, and applying the proceeds on the general account of Westcott & Go., there still remained a substantial sum due them, but one much less than the value of stocks the ownership of which was'claimed by Everson and others. Willard & Co. then commenced a suit in equity, making the assignee of Westcott & Go. and other claimants of the stock parties. Upon the report of the referee to whom the suit was referred to hear and determine, judgment was entered, decreeing, among other things, that the stock should be sold ; that plaintiffs should repay themselves out of the proceeds the sum still due them from Westcott & Co., and, after the payment of certain fees and disbursements, the plaintiffs should pay over to the assignee of Westcott & Co. the residue of the moneys resulting from the sale. On appeal this court held that so much of the judgment as directed payment of the surplus moneys to the assignee of Westcott & Co. was error. Presiding Justice Van Brunt, speaking for a unanimous court, said :

It seems to us to be entirely clear that the referee erred in holding that the surplus of these sales should be paid to the assignee. He was not a purchaser for value, and he had no right to take any more than Westcott & Co, could themselves have taken if they had not made the assignment. These parties, having traced their security or securities, which had been bought upon their account, into the hands of the plaintiffs, were at least entitled to receive from the plaintiffs whatever balance might remain after paying the indebtedness for which they were pledged.” Willard v. White, 56 Hun, 581, 587; 32 St. Rep. 151.

It will be observed that a judgment which in that case adjudged the assignee to be entitled to receive a surplus, such as defendants, of their own motion, determined Evans & Co.’s assignee to be entitled to receive, was reversed, on the ground that the real owner of the stock was entitled to have the surplus paid to him. It seems to follow from that decision that had plaintiffs known of the sale of their stock by the defendants, and of the surplus arising, before the money was turned over to the assignee of Evans & Co., they could have successfully prosecuted a suit for its recovery. But they were not informed of the time and place of sale, although they requested that they should be; and the defendants, having knowledge of their ownership of the stock, and presumably of their legal right to recover of them the surplus, could not deprive them of that right by selling the stock without their knowledge, and. promptly turning over the proceeds to one who, as against them, was not entitled to the same.

In Wright v. Cabot, 47 N. Y. Supr. Ct. 229, the plaintiffs consigned 329 bales of Esparto grass to E. & 0. Stokes, their factors, for sale. The latter firm, in their own name, employed Cabot & Co., as brokers, to sell the property. Before the proceeds were turned over, E. & 0. Stokes failed, after which plaintiffs’ firm notified Cabot & Co. that they were the owners of the merchandise. E. & 0. Stokes being only their factors, Cabot & Co. replied that they had no knowledge of such a firm, or that they were interested in any merchandise sold by them for E. & C. Stokes. Thereafter Stephen Cabot was examined in proceedings, supplementary to execution, and testified that his firm'held for the account of E. & 0. Stokes the sum of $628.36. Thereupon an order was made that Cabot & Co. pay over such sum to the plaintiffs on the judgment, which was done. Nevertheless, it was held that the owners of the merchandise should receive such sum from Cabot & Co., because they had received notice that the plaintiffs were the “ owners of the goods, and that they were the principals of their agent, the factor. From that time the plaintiffs proceeded to deal with the proceeds at their own risk.” As this case comes within the rule established by the cases cited, the plaintiffs should have judgment, While it results in a loss to the defendants, it is due to their neglect of such opportunities as the law afforded them, in the first instance, to have provisions made for a-payment to the persons legally entitled to the money. The plaintiffs are entitled to judgment against the defendants for $5,324.66, with interest from January 20, 1892, with costs. Judgment ordered accordingly.

All concur.


author: Follett, J.

text:
    Fourth Presbyterian Church, Pl’ff, v. David Steiner, Def't.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Vendor and Purchaser—Title.
    A restriction in the use Of property is such a defect in the title as to relieve a purchaser of a portion thereof from his contract, though1 the condition is not enforceable in equity by reason of a change in the nature of the property.
    Controversy submitted without action on an agreed statement of facts, pursuant to § 1279'of the Code.
    On the 29th of April, 1865, Jane Aycrigg was the owner in fee simple of four contiguous lots situate on the south side of Thirty-fourth street, every one of which has a frontage of twenty-five feet on said street, and a depth of ninty-eight feet and nine inches. By a deed dated April 29,1865, acknowledged May 1st, and duly recorded May 2, 1865, she conveyed these lots to George W. Campbell. This deed was executed by the grantor and grantee, and contained the following: “And the said party of the second part, for himself, his heirs, executors, administrators, and assigns, as a condition of these presents, doth covenant, grant, and agree to and with the said party.of the first part, her Heirs and assigns, that whenever the hereinbefore described premises, or any part thereof, shall be improved, the same shall be improved with good and substantial dwelling houses, constructed of brick or stone, with firepoof roof to each house, not inferior in height and style, quality and external appearance, to the house known by the street number 1108 West Thirty-fourth street,’ now or formerly belonging to William R Stewart, and that the whole front of the said premises shall be covered with such dwelling houses (not exceeding five houses), of an equal width of not less than twenty feet each, and without any alley or passageway within the said walls thereof' to communicate fi'om the streét to the yard, other than the halls- or entries of such houses; but, instead of such dwelling houses, there may be erected upon the said four lots of ground, at any time prior to the 6th day of December, 1867, a good substantial Presbyterian church edifice, having a front of freestone or marble, and suitable to that part of the city in style and character. And the party of the second part, for himself, his heirs, executors, administrators, and assigns, as a further condition of these presents, doth covenant, grant, and agree to and with the party of the first part, her heirs and assigns, that neither the party of the second part, nor his heirs or assigns, shall or will erect, or suffer to be erected, on the said premises, or any part thereof, any stable, or will permit or suffer said premises, or any building which may "at any time be erected thereon, to be used for any kind of trade, manufactory, or "business whatsoever, or for a tenement or community house. And the said party of the second part, for himself, his heirs, executors, administrators, and assigns, doth covenant and agree with the said party of the first part and her heirs that, in case the party of the second part, his heirs or assigns, or any or either of them, shall make default in the performance of the above written covenants on his or their part to be observed, or any or either of them, or any part of either' of them, then and in such case the party or parties so making default shall pay to the party of the first part or her heirs the sum of two thousand dollars ($2,000), as liquidated damages in' the premises, for each one of the said lots on or as to which such default or breach of covenant shall have been made or occurred.”
    By a deed dated March 1, 1865, acknowledged May 1, and duly recorded May 2, 1865, George W. Campbell conveyed the lots to the Grand Street Presbyterian Church, “ subject to, and it is understood and agreed by the parties of the second part, to and with the party of thefirst part and his legal representatives,by the acceptance of these presents, this is made upon the express condition that the parties of the second part, their successors and assigns, do hereby assume to perform each and every of the covenants as the part of said Campbell set forth in a certain deed of said premises from Jane Aycrigg to said Campbell, bearing date on the 29th day of April, 1865, to the purposes and with the same force and intent as if each of said covenants were specially set forth in these covenants, and as if the parties of the second part had received the covenants direct from said Jane Aycrigg, instead of said Campbell, and had covenants directly with said Jane Aycrigg to the same effect as the said Campbell had done in the deed to him aforesaid.” Subsequently the name of the corporation was duly changed to “ Fourth Presbyterian Church. Thirty-fourth Street.” Jane Aycrigg, in her lifetime, owned other lots near to said four lots, part of which she conveyed to various grantees, by deeds containing similar restrictions, and she died seized of other lots in that neighborhood, which she devised by her will. December 28, 1892, the parties to this submission entered into a written executory contract by which the Fourth Presbyterian Church, Thirty-fourth Street, agreed to sell and convey in fee simple, and David Steiner to purchase, a part of the four lots, 80 feet in width on the street by 98 feet and 9 inches in depth. The vendee refuses to take the title because of the restrictive covenant herein set forth, unless the vendor will also abate $2,000 per lot from the purchase-price. In addition to the foregoing facts, the submission contains the following facts agreed on: “ (9) The locality wherein the said premises are situated and located, and the immediate neighborhood of said premises, was at the date of the deed devoted and dedicated to residences of a high-class and expensive nature, and no buildings for trade. purposes whatsoever or for tenement and community houses were situated therein. (10) That in furtherance of an intention and purpose to restrict the said neighborhood locality, and limit, restrict, and circumscribe the use of said property so conveyed as aforesaid, the said covenant was put in said agreement and deeds to maintain and preserve the said neighborhood free from, and unoccupied by, all buildings devoted to, used for, or intended to be used for trade purposes, or used and occupied, or intended to be used or occupied for tenement or community houses. (11) That for a long number of years, to-wit, until about 1892, the said premises in question were restricted and limited in the use thereof to church property, and the immediate neighborhood restricted to high-class residences and dwelling houses. (12) That thereafter, and since about the year 1892, the said neighborhood has deteriorated as a first-class neighborhood for dwelling houses and residences, and the premises in question become unfit for use as church property, and the houses in and about said locality and neighborhood have become occupied for business and trade purposes, and by theaters, music halls, and places of amusement, and the dwellings and residences become devoted to and occupied for trade, commercial and business purposes, and has become totally unfit for the use to which the said neighborhood was limited and restricted by the said covenants in said agreements and deeds contained. (13) That, for many years last past, there have been great and extensive changes in the character and location of said premises, and of the premises mentioned in the said agreements and deeds, and in the surroundings and nature thereof, and in the uses of the said premises and contiguous property, and in the business of the vicinage, rendering it injurious, inequitable and inexpedient to observe, enforce and maintain the said covenants limiting and restricting the use of said premises. (14) That to enforce and uphold the said covenant in preventing the use of said premises for present purposes, according to the change wrought by the growth of the city, would be to inflict great and irreparable injury upon the owners thereof, and prevent the same from being put to practical and reasonable use and enjoyment thereof, under the conditions now existing in the neighborhood in which said property is located. (15) That the change'in the neighborhood so wrought and at present existing was impossible to be foreseen by the original owner thereof in the year 1865, when the covenant restricting and limiting the use thereof was made.” Upon these facts the following question is submitted for determination: “ Whether or not the said covenants constitute an incumbrance or cloud upon the title of the church, rendering it unmarketable for general purposes.”

      Delos McCurdy, for app’lt; Emanuel J. Myers, for def’t.
   Follett, J.

—Assuming that the statements contained in the submission are true, and that all of the facts relevant to the question submitted are contained therein, it is clear that the case falls within the ‘principle laid down in the class of cases of which Trustees of Columbia College v. Thacher, 87 N. Y. 311, is a type, and that the performance of the covenants would not be enforced or their violation restrained by a court of equity. Nevertheless, the damages sustained by the violation of the covenants might be recovered at law by the owners of the adjoining lots to which this negative easement created by the covenant has attached. We assume from the submission, though it is not expressly stated, that there are many lots to which the easement is attached. In case an action should be brought by a lot owner to restrain the violation of the covenant, and recover damages for its violation, and the facts should be found as stated in the submission, and no others, equitable relief would be refused, and the damages awarded would be nominal. However, whoever owns the lot in question will be exposed to actions by the owners of the adjacent lots, either for the purpose of enforcing the performance of the covenants restraining their violation, or for damages. This is not the kind of title that a purchaser under this contract is entitled to receive. It is suggested that there be deducted from the contract-price $2,000 per lot, and that.the vendor be compelled to convey on those terms. The covenant, while it liquidates the damages as between Mrs. Aycrigg, her heirs and representatives, and the owner of the lot in question, does not assume to liquidate the damages which may be sustained by the owners of neighboring lots, who are entitled to the benefit of the covenant. The covenants contained in the deed constitute such an incumbrance upon the title that the defendant should not be compelled to perform his contract, and is entitled to recover the sum which he has paid on the contract, with interest. A judgment should be entered accordingly in his favor and against the plaintiff, with costs.

All concur.


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    Robert Bryson, Resp’t, v. Roger St. Helen, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Former adjudication—Pleaded.
    A prior adjudication, though alleged in the answer, is not available as a defense, unless pleaded in bar. •
    2. Mechanic’s lien—Notice—Statement.
    Where the owner knew the particulars of the claim, a notice, merely stating that a certain amount is due, is sufficient, though balance of a larger sum.
    Appeal from a judgment of foreclosure of a mechanic’s lien and sale, and for the deficiency.

      H. J. Sullivan, for app’lt; William W. Armstrong, for resp’t.
   Lewis, J.

—About November 1, 1891, the appellant agreed to erect a building for the defendant Phelan, and, in December following, contracted with one McConnell to do the tin work -on the building for $274. McConnell did the work, and, in addition thereto, performed extra work of the value of $3, and he became entitled to $277. St. Helen paid him $198.88 upon the contract, leaving $78.12 still unpaid, for which McConnell, in February,, 1892, filed a' mechanic’s lien In his notice of lien McConnell stated that his claim was for tin work done upon the premises of the defendant Phelan, under a contract with St. Helen now due, amounting to the sum of $78; “ said amount being the true price and value of the said tin work furnished.” At the time of the lien there remained in Phelan’s hands a balance due to St. Helen on account of said work of $83.52. Prior to the commencement of this action, McConnell duly assigned to the plaintiff said indebtedness due him from St. Helen, and the mechanic’s lien perfected, as stated, and his cause of action thereon; and thereafter the plaintiff commenced an action in the municipal court of Rochester against St Helen to recover the amount of his said claim, and another claim, of $2.60, for work upon another building ; amounting in all to $80.72. St. Helen alleged a counterclaim in his answer, which was allowed to the extent of $40. The plaintiff recovered a judgment in said municipal court against St. Helen for $40.42, with $10.85 costs. No proceedings were taken to collect said judgment, and it remains wholly unpaid. The plaintiff thereafter commenced this action to foreclose said lien, and recovered a judgment adjudging that there was due the plaintiff from St. Helen the sum of $38.12, the .balance due on the Phelan contract, with interest thereon from November 29, 1892, that being the day of the rendition of the municipal court judgment; and further adjudging that he was entitled to a judgment against the defendant Phelan, barring and foreclosing him from all interest and equity of redemption, in the premises, and for the payment to the plaintiff from the proceeds of such sale of the said sum of $83.52, or so much thereof as shall be necessary to satisfy said indebtedness of $38.12, with interest, and the plaintiff’s costs and disbursements of. the action to be taxed, which were granted to him; and it further provided that, in case any surplus remains after such payment, it should be paid to St Helen, and that, in case any deficiency should arise, the plaintiff should be entitled to judgment against St. Helen for the amount thereof From the judgment entered thereon this appeal was taken.

It is the contention of the appellant that the municipal court judgment was a bar to this action. No such defense is set up in the defendant’s answer. recovery of the judgment is alleged in the answer, but it is not pleaded as a bar to this action. The point"that the complaint fails to state that an execution has been issued upon the municipal court judgment, and returned unsatisfied, was not raised upon the trial of the action. It is too late to raise that question upon this appeal, even if there were anything in the point.

The appellant further contends that the notice of lien only made a claim for $78 as the price and value of the work furnished. It is true that that was the amount claimed in the Hen as filed, but it was .alleged in the complaint that the value of the work performed was $277, and that no part thereof had been paid except $238.88, leaving, as it will be seen, the sum of $38.12, the amount adjudged to be due the plaintiff. The notice of lien" should properly have stated that the $78 was a balance due for the work performed under the contract, but the error could not possibly have misled the defendant. He made no such claim at the trial of the action. It appears from the twelfth subdivision of the defendant’s answer that he was fully aware of the particulars of the plaintiff’s cause of action. He knew the value of the work done, and how much had been paid thereon. Section 25 of the mechanic’s lien law declares the law to be remedial. It should be liberally construed in order to secure the parties its beneficial purposes. The act does not require that the notice shall state the entire amount of the value of the work done, nor the amount of the payments made. Manifestly, the defendant was not misled by the informality, if there was such, in the lien as filed.

As we have seen, the plaintiff recovered a judgment in the municipal court of Rochester for the same cause of action stated in his complaint here, and he was awarded a judgment in this action for the same claim, amounting, with interest, to $40.40, and the sum of $89.49 costs, and the judgment provides that, in case the sum realized upon the sale of the premises does not amount to the judgment awarded the plaintiff, he shall be entitled to a judgment against the appellant for such deficiency. This, as is claimed by the .appellant, secures to the plaintiff two judgments for the amount of his claim against the appellant. The judgment appealed from should have provided against this error, and it should have been reversed, and a new trial granted, unless the plaintiff, within 30 days, cause to be deducted from the said municipal court judgment the sum of $38.12 as of the day of the entry thereof. In case that is done, this judgment should be affirmed, but without costs of this appeal to either party.

All concur.


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    Elizabeth G. Hughes, Resp’t, v. Monroe County, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    County—Liability—Insane asylum.
    A county is not liable for injuries caused by the negligence of persons in charge of the county insane asylum.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.

      Eugene Van Voorhis, for pl’ff; F. E. Drake, for def’t.
   Lewis, J.

—This action was commenced on the 31st of August, 1892, against the board of supervisors of Monroe county to recover damages for personal in j mdes sustained by the plaintiff, caused by the alleged negligence of the defendant, on .the 11th of February, 1891, while she was employed at the Monroe County Insane Asylum. After the commencement of the action, by virtue of an order, the summons and complaint was amended by striking out the board of supervisors of- Monroe county as defendant, and inserting as defendant “ The County of Monroe.” The plaintiff was engaged, at the time of receiving her injuries, in removing wax from the main cylinder of a steam ironing machine, belonging to the defendant, and being used in said asylum, and which was at the time in motion. Her hands and arms were drawn in between the rollers of the machine,'and were quite seriously injured. The plaintiff’s contention is that the negligence of the defendant consisted in those in charge of the asylum not having given her propeí instructions as to the management of the machine.

It is a question of considerable doubt whether the plaintiff succeeded in showing herself free from negligence contributing to her injuries. The position of the rollers of the machine and their manner of operation when ir\ motion, were plainly visible to the plaintiff, and the danger of her hands being caught between the rollers, their distance from each other; that, if she had stopped to think, she would have known that, if anything got into the machine that was thicker than the space between the rollers, it would get pinched. She was at the time 24 or 25» years of age, and had lived nearly all her life in the country, upon a farm, and must be assumed to have had the common intelligence and experience that girls possess who are brought up among the ordinary affairs of farming life. But, from the view we have taken of this case, it will not be necessary to consider the question of the plaintiff’s contributory negligence, for we are of the opinion that the defendant was riot liable to the plaintiff for the negligence of those in charge of the asylum.

It is provided by chapter 82 of the Laws of 1863 that the Insane Asylum of the County of Monroe should, after the passage of the act, be a separate and distinct institution from that of the Monroe County Poorhouse. The board of supervisors was authorized to elect a warden and such other subordinate officers as the board deemed expedient, and appoint three persons who should constitute the board of trustees of the asylum. The warden was to be the chief officer of the asylum, and to have the general management thereof, under the supervision of the trustees. The board of supervisors were required to cause to be levied and collected upon the taxable property of the county a sufficient sum annually to defray the expenses of the asylum. The money raised was required to be paid to the county treasurer, to be used for the support of the insane of the county, and for no other purpose whatever. The warden was given power to enter into contracts with any town or city in the county for the support of any insane person at the asylum, and to demand and receive from the State Lunatic Asylum any insane person who was then, or thereafter should become, chargeable to the county of Monroe, or to any town in said county, or any ward in the city of Rochester. The managers of the State Lunatic Asylum, upon such demand, were required to surrender to the board of supervisors any and every person who at the time of making such demand is in any wise chargeable to such city or town. By chapter 633 of the Laws of 1870, it was made the duty of the trustees of the said asylum, and they were empowered, to hear and determine all questions and inquiries in relation to indigent lunatics and pauper insane who may be committed to said asylum, as to whether the maintenance of such lunatic and pauper insane is properly a charge oh a specified town of Morlroe county, or upon the city of Rochester, or upon tlie county of Monroe, and certify their decision to the board of supervisors; and the said board was required to cause the expenses of such maintenance to be levied against the said town, city, or county, and collected, as the said board of trustees shall certify. The board of trustees was given power to charge the estate of any lunatic who was not indigent or a pauper, or the person legally responsible, for his maintenance, and collect the same, and apply it to the maintenance of such lunatic.

It was conceded upon the trial that the asylum charged to the county, the city of Rochester, and the several towns of the county, respectively, the year preceding the time of the accident, various sums for the board of patients; and that there was due from the state for that year-moneys for the care of insane persons cared for by the institution, who were chargeable to the state; and that there was due to the county moneys for the care of other insane persons; and that it received during said year, for the price of articles produced upon the farm belonging to the asylum and sold, about $800. The defendant is one of the divisions of the state. The obligation / for caring for its insane was imposed upon it by law. It could have its insane cared for at the state asylum, or at an institution of its | own, but under all circumstances it was required to bear the ex- | pense of caring for them. The expense thereof was paid by taxation. If any revenue was derived from the product of the farm, or from the patients who, in whole or in part, contributed to their own support, the amount collected by taxation was accordingly lessened by the amount of the sums thus received, but in no event was it contemplated that the county would derive any revenue from the asylum. What it did in caring for its insane was for the ‘ benefit of its citizens, as well as for all the other citizens of the state. The control and restraint of the insane and criminal classes are equally necessary for the welfare and safety of the community. Restraining the insane of their liberty can only be justified as an exercise of police power. The laws authorizing such interference are classified among the laws concerning the internal police of the state. Rev. St. tit. 3, chap. 20, part 1.

Dillon on Municipal Corporations (4th ed. § 963) states the rule as to liability of counties for torts to be: “According to the, prevailing rule, counties are under no liability in respect to torts, except as imposed (expressly or by necessary implication) by statute. They are political divisions of the state, created, for convenience.” “A county was accordingly held not liable for an injury suffered by the plaintiff, who, when in attendance at court as a witness, was precipitated into the cellar of the courthouse, in consequence of the negligent omission of an agent or officers of. the county to guard or light a dangerous opening leading into the cellar.”

Addison on Torts (Banks & B. ed. p. 1298, § 1526) states the rule as follows: “ The plainly-marked distinction is made and should be observed between municipal corporations proper, as incorporated villages, towns and cities, and those other organizations, such as townships, counties, school districts, and the like, which are established without any express charter or act of corporation, and clothed with but limited powers. These latter political divisions are called ‘ quasi corporations,’ and the general rule of law is now well settled that no action can be maintained against corporations of this class by a private person for their neglect of public duty, unless such right' of action is expressly given by statute.”

Ensign v. Supervisors, 25 Hun, 20, was an action brought to recover damages sustained by injuries received in crossing a defective bridge over a river, crossed by a public highway. The bridge was erected under an act of the legislature, which declared that it should, when constructed, become a public bridge, and be maintained at the expense of the county of Livingston. It w^s held that the county was not liable, and the court stated the rule as follows: “ There is a distinction between municipal corporations created by charter, and vested by the government with a portion of its sovereign power for their peculiar benefit, and counties and towns, which, like assembly and senatorial districts, are mere political divisions, organized for the convenient exercise of portions of the political power of the state.”

Alamango v. Supervisors, 25 Hun, 551, was an action brought by the plaintiff, an inmate of the Albany county penitentiary, to recover damages for aminjury received to his hand while working with a circular saw. It was held that the defendant, in building and managing the penitentiary, was engaged in á public duty, which concerned the administration of criminal justice, and was & mere instrumentality selected by the state; and that the rule was not different even if the county derived, some profit incidentally from work performed at the institution. The same rule is stated in Hollenbeck v. Winnebago Co., 95 Ill. 148.

It was held in Summers v. County of Daviess, 103 Ind. 262, that, where the duties delegated to officers elected by public corporations are political or governmental, the relation of principal and agent does not exist, that the maxim of “ respondeat superior ” does not govern; that counties are mere instrumentalities of government, and are not liable for any injury caused by the negligence of its commissioners in selection of an unskilled or incompetent physician for the care of the poor. Judge Elliot, in his opinion, says: “We have many cases holding that counties, townships and cities are instrumentalities of government. It must, therefore, be true that, where they act simply as the local government, they act for the state. As the state is not liable for the acts of its officers, neither can the public corporations be held liable for the acts of its officers in the exercise of political powers. There is no more reason for holding counties liable for the negligence of the commissioners in the exercise of the governmental functions delegated to them than there is for holding cities liable for the acts of their firemen or police officers, or for holding counties and townships responsible for the torts of sheriffs and constables. In providing for the care of the poor, a police power which resides primarily in the sovereignty is exercised; and neither the sovereignty nor the local governing body to whom such a power is delegated is responsible for the misfeasance of its officers.”

He refers with approval to the case of Ogg v. City of Lansing, 85 Iowa, 495, which held that a city was not liable for the negligence of persons placed in charge of a smallpox hospital, which the city had established.

In Maxmilian v. Mayor, etc., 62 N.Y. 164, Judge Folger points out the distinction between municipalities organized as a political division of the state for the purpose of discharging duties for the benefit of all its citizens and municipalities created to discharge duties for their own private interests. In the former the agents are servants of the corporations, and act for the public at large, and the corporation is not responsible for their acts or omissions, or the actions or omissions of the subordinates by them appointed. He refers, as authority for the rule, to Eastman v. Meredith, 36 N. H. 284; Fisher v. Boston, 104 Mass. 87; Hafford v. New Bedford, 16 Gray, 297.

Howard v. City of Worcester, 153 Mass. 426, was an action to recover damages for injuries received by the plaintiff through the alleged negligence of the city. The city was engaged in the construction of a schoolhouse. It had let the contract for removing a ledge of rocks, and the plaintiff was injured by the blasting of rock bv the contractor. Judge Allen says that the service in which the city was engaged was purely for the benefit of the public, and that the case falls within the general rule which exonerates it from responsibility for the consequences of its servants’ negligence, and refers to Neff v. Inhabitants of Wellesley, 148 Mass. 187; Curran v. City of Boston, 151 Mass. 505; and Bates v. Inhabitants of Westborough, 151 Mass. 174. The same rule is stated in the case of Buttrick v. City of Lowell, 1 Allen, 172 ; Wheeler v. Cincinnati, 19 Ohio St. 19; Brinkmeyer v. City of Evansville, 29 Ind. 187 ; Toomey v. City of Albany, 38 St. Rep. 91; 14 N. Y. Supp. 572; Smith v. City of Rochester, 76 N. Y. 506; McKay v. City of Buffalo, 9 Hun, 401.

In Benton v. City Hospital, 140 Mass. 13, the action was against the trustees of the city hospital for injuries received through the negligence of its superintendent. Judge Field, in stating the reason why the plaintiff was not entitled to recover, says: • “But we think that this is a hospital maintained by the city, with such aid as may be derived from donations and the sum received from paying patients, and that the trustees are in a sense managing agents only in maintaining the hospital, subject to the laws and to the ordinances of the city. The sums received from paying patients are, by the ordinances, to be credited to the account of the hospital, and are used in the support thereof.. The trustees are a body created, for the performance of a duty which, under the authority of the statute, the city of Boston has assumed for the benefit of the public, and from the performance of which no profit or advantage is derived either by the trustees or the city.”

Hill v. Boston, 122 Mass. 344; Ulrich v. City of St. Louis, 112 Mo. 139 ; Sherbourne v. Yuba Co., 21 Cal. 113 ; Kincaid v. Hardin Co., 53 Iowa, 430.

There are many other authorities, sustaining the same doctrine, but it is not necessary to refer to more of them. Plaintiff’s counsel conceded the correctness of the general rule as above stated, but he seeks to distinguish this case from the case cited. He claims that the defendant was managing this asylum for its own benefit and advantage, and calls our attention to the case of Hannon v. St. Louis Co., 62 Mo. 313, as an authority sustaining his contention. In that case the city of St. Louis had contracted with one Lukan to lay a water pipe along certain streets, through the grounds of the County Insane Asylum, in order to supply the same with water; and the plaintiff was injured by the negligence of the defendant, while in the employ of the contractor. In discussing the case, the court affirms the doctrine that quasi corporations, created by the legislature for the purpose of public policy, are not responsible for the neglect of duties enjoined on them unless the action is given by statute, but held that it had no application .to a case where a special duty is imposed upon the quasi corporation with its consent, express or implied, and stated that: “In the case at bar the county of St. Louis was not engaged in the discharge of duties imposed alike by general law upon all counties,—duties whose performance, if neglected, might have been enforced by proper procedure for that purpose,—but in the discharge of a self-imposed duty, not enjoined by any law ; and the test of the matter is this; that the county could not have been compelled to enter on the work for whose performance it contracted.”

That case, we think, can be distinguished from this. Here the defendant wah engaged in the performance of a duty imposed upon it by statute, to wit, the support and care of its insane,—a duty imposed upon every county in the state. It could discharge that duty either by employing the state to care for its insane, or care for them in an asylum within its own borders. In either case it was discharging a duty imposed upon it by law. We are of the opinion that the plaintiff failed to make a case entitling her to a verdict The defendant’s motion for a new trial should be granted, with costs to abide the event. All concur.


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    John Doorley, Resp’t, v. Ellen L. McConnell, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Deed—Covenant—Breach.
    Under a covenant in a deed providing for a forfeiture if intoxicating liquors should be sold on the premises conveyed, a grantee thereof, without knowledge of a breach, cannot be divested of title through the misconduct of her grantor, who was in peaceable possession.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      James L. Weeks, for app’lt; Walter L. Sessions, for resp’t.
   Haight, J.

—This action is in ejectment, to recover possession of real estate. The demurrer is upon the grounds that there is a defect of parties plaintiff, and that the complaint does not state facts sufficient to constitute a cause of action. The complaint, in substance, alleges that on the 1st day of April, 1876, Henri Hall, Warren Packard, and Mary E. Packard, his wife, and the plaintiff, John Boorley, were owners in fee and tenants in common (except that the interest of the said Mary E. was an inchoate right of dower only) in the premises in question. On that day they conveyed the same to Warren Packard, with the covenants of warranty and of quiet and peaceable possession, and containing the following: “And the said Packard, party of the second part, for himself, his heirs and assigns, do hereby covenant to and with .said Hall, Warren Packard, and Boorley, their heirs, executors, and administrators, that neither the said Warren Packard, party of the second part, nor his heir or assigns, shall or will at any time hereafter erect any building within ten feet of the front of said lot or lots any barn or outhouse, except a summer house or other ornamental building, or privy, nor keep for sale, or permit to be sold or kept for sale, upon said premises, any intoxicating liquor, of any kind or descriptioni whatever, under penalty of the forfeiture of the lots above conveyed to the said party, their heirs or assigns, upon proof of such selling or keeping for sale any intoxicating liquors as aforesaid.”

The complaint further alleges that the premises so conveyed to Packard were by him, through several mesne deeds, conveyed to King B. Fleek and Ermina Fleek, his wife; that the deeds by which such conveyances were made were all recorded in the clerk’s office. The complaint, further alleges that during the time that Fleek and wife were the owners and in possession of the premises, they erected thereon an hotel for the accommodation of the public, within ten feet of the street in front thereof, and also built an hotel barn on the lot, in which they kept horses and carriages for the accommodation of their guests and patrons, and also constructed other shanties and buildings thereon, in violation of the condition in the deed, and did therein, under a license issued by the board of excise of the town, sell, and cause to be sold and kept for sale, and offer for sale, in said hotel building, to persons, various kinds of intoxicant liquors, during the year 1889. It is further alleged that thereafter, and on the 17th day of September, 1890, King D. Fleek made a general assignment for the benefit of creditors to George W. Boomer, who duly qualified as such assignee, and entered into possession of the said premises, and on the 30th day of April, 1891, thereafter, did sell and convey the same, by deed in which Fleek and wife joined, for a consideration duly paid, to the defendant.

The summons issued herein is dated July 13, 1893. It thus appears that this action was commenced four years after the alleged selling or keeping for sale of intoxicating liquors upon the premises, and after the premises had been conveyed to the defendant There is no allegation in the complaint that she knew of such sale, or of there being a forfeiture by reason thereof. In this respect, it appears to us that the complaint does not state facts sufficient to constitute a cause of action. Packard, as the party of the second part, covenants that he, his heirs or assigns, snail or will not at any time erect any building within ten feet of the front of the lot, etc. This provision of the deed is described as a covenant, and, as we understand, it is separate and distinct from that which follows. The deed then provides that the grantee shall not keep for sale, or permit to he sold, upon the premises, any intoxicating liquor, under the penalty of the forfeiture of the lots, etc., “ upon proof of such selling or keeping for sale of any intoxicating liquors upon the premises, and that it has no application to the covenant pertaining to the buildings upon the lot; so that, while there may be a breach of the covenant as to the buildings, such breach does not create a forfeiture of the estate, and such forfeiture can be maintained only upon proof of the selling and keeping for sale of intoxicating liquors. Can it be now invoked? As we have seen, the plaintiff rested upon his rights during the time that Fleek and wife owned and occupied the premises. He waited four years, and until after the defendant had purchased and paid for the premises. Her possession is that of an innocent purchaser for value, and it appears to us that she obtained a good title, of which she cannot now be divested because of the misconduct of one of her former grantors. She found the premises in their peaceful possession. The records of the clerk’s office showed them to be the owners in fee. She is not charged with having knowledge of any forfeiture, and, if she had, she might reasonably have supposed that it had been waived by the persons entitled to insist upon it, from the facts disclosed in the case. It is true, she was apprised by the records of the condition incorporated in the deed to Packard, and if she now violates it she may forfeit her estata Plumb v. Tubbs, 41 N. Y. 442. These views render it unnecessary to consider the question as to whether there is a defect as to the parties plaintiff. The interlocutory judgment should be reversed, with costs, but with leave to tire plaintiff to amend the complaint within twenty days, upon the payment of the costs of the demurrer and of this appeal.

All concur.