author:
Brady, J.: INGALLS, J.:
      Davis, P. J.,

text:
    ADELHEID KAISER, Appellant, v. HERMAN KAISER, Respondent.

      Divorce for physical incompetency — the fact that the action was not commenced in two years must he pleaded in the answer.

    Section 33 of 2 Revised Statutes, 133, providing- that a suit to annul a marriage, on the ground of physical incompetency, “ shall in all cases he brought within two years from the solemnization of the marriage,” is a statute of limitation, and tlie action is not barred by the lapse of that time, unless that objection is set up in the answer. (Davis, P. J., dissenting.)
    Appeal from an order made at a Special Term, refusing confirmation of a report of a referee in favor of the plaintiff, and denying a decree of divorce from the defendant, applied for on the ground that at the time of the marriage he was physically incapable of entering into the marriage state.

      Geo. F. Langbein, for the appellant.
    No one appearing for the respondent.
   Brady, J.:

Thp plaintiff commenced this action to obtain a divorce on the ground of the physical incompetency of her husband, and the defendant made no appearance. The learned justice below declined to grant the application, upon the sole ground that the action had not been commenced within two years from the solemnization of the marriage. The statute, which formed the basis of this judgment, provides that an action of this character “ shall, in all cases, be brought within two years from the solemnization of the marriage.” (3 R. S. [6th ed.], 154, § 47.) But it is provided by the next section (48) that suits to annul a marriage shall be by bill, and shall be conducted in the same manner as other suits prosecuted in the courts of equity. It was also provided by section 74 of the Code, in force when this action was commenced, that civil actions could only be commenced within the periods prescribed in the title relating thereto, after the cause of action should have accrued, except where, in special cases, a different limitation was prescribed by statute, and in the cases mentioned in section 73, which, did not include suck a case as this. “But,” saith the section further, “the objection that the action was not commenced within the time limited can only be taken by answer.” A prior section (69) had abolished the distinction between actions at law and suits in equity, and the forms of such actions, and the result of these provisions thus placed in combination is, that the objection interposed by the learned justice below could only be presented by answer. The court, acting in reference to the established jealousy or circumspection in regard to applications for a divorce, might have directed an examination as to the delay in bringing the action, and might, doubtless, in the exercise of its equity power over the subject, have refused from other convictions to grant the divorce. But the refusal, upon the ground stated, was not. warranted by the statutes referred to and grouped together. The limitation is to be treated like any other limitation, which having been created in the main for the defendant’s benefit must be invoked by him. The courts have declared in numerous cases that the statute must be pleaded in bar in accord with the provision on that branch of the defense, and have not deemed it incumbent on them to decline the relief sought when the action apparently was not brought within the limited time. In this case, it appears that the defendant prohibited his wife from speaking of his inability to consummate the marriage, and that she did not know of it understanding^ until she left him, which was more than two years after the marriage. It appears, however, that she did commence her action about one year after she was advised of her husband’s physical inability, which it appears she did not know to exist until so advised. These circumstances, accompanied by proof that she was still a virgin, rendered it eminently proper that there should be a liberal construction of the statute in her favor, and would seem to demonstrate as well, if the statute is to be strictly construed, that further legislation is necessary. It cannot be assumed, in the face of the proof in this case, that a woman must necessarily learn of her husband’s impotence in two years after the solemnization of the marriage, even though they should live together during that period. Truth is strang ir than fiction, and it seems to be true that the plaintiff did not know during that period that her husband was physically incapable. There are cases aside from this in which the strict application of the statute would be unjust. If, for example, within a day or two of the marriage, the husband should be called away from or leave the wife voluntarily and remain absent' for two years, giving, of course, during the interim, no opportunity to his wife to learn of his incapacity, it would be unjust to subject her to the consequences, and for life, it might be. A reasonable and just construction of the statute would place the limitation from the time knowledge of the incapacity was acquired, to be determined by all the facts and circumstances of the case. The marriage is a fraud upon the injured party, and that circumstance should be considered and kept in view. But it is not necessary, in the view entertained of this question in this case, to consider this phase of it. It is enough that the law requires the statutory bar to be pleaded which was not done. The counsel for the plaintiff has elaborately and leárn-edly considered the whole subject and presented his conclusions in an able brief, suggesting among others, the view adopted herein, but it has not been considered necessary to discuss the other suggestions made, having arrived at the result stated.

The order made at Special Term should, for the reasons stated, be reversed, and the case sent back for further consideration.

INGALLS, J.:

My first impression was adverse to the conclusion of my brother Beady in this case, but farther examination and reflection has induced me to acquiesce in the result Avliich he has reached. The phraseology used in framing the statute in question is no more prohibitory or imperative, than that employed in statutes of limitation in regard to ordinary civil actions ; and in such cases the statute must be pleaded to be available to a party as a defense. All such statutes rest upon principles of public policy. They are all alike statutes of repose. There being no pretence of fraud or collusion and the defendant having failed to-appear in this action, we think the court was hardly required to interpose the statute of limitation and thereby defeat the plaintiff's action. If the plaintiff has, in all other respects, a just and meritorious cause of action she should prevail.

Davis, P. J.,

dissenting.

The statute on which the court below refused the decree in this case is not a mere statute of limitations. It enters into and is a substantive part of the right or cause of action, and the party seeking the relief for which it provides, must affirmatively establish, before the decree of divorce can be granted, that the action was brought within the two years specified by the statute. The action is the creature of statute. No such action existed at common law, and it is made a condition of the right to maintain the action, that it should be brought within a prescribed time. When it appears affirmatively that the suit was not commenced within the prescribed time, the court has no jurisdiction to pronounce a decree dissolving the marriage relation. This has always been the construction given to the statute by the rules and practice of the Court of Chancery and of this court, and by the decisions. A similar rule prevails as to actions for divorce for adultery. The' statute is based upon grounds and reasons in no sense analogous to those on which ordinary limitations rest.

The court below was, in my judgment, entirely right in denying the relief, and the order ought to be affirmed. Nor should the decree sought for have been granted on the evidence of the plaintiff. Without her testimony no case was established. Proof of incapacity should have been made by other witnesses. I therefore dissent from the conclusion of my brethren.

Order reversed ; case sent back for further consideration.


source: Caselaw Access Project

author: INGALLS, J. :

license: Public Domain

text:
    STEPHEN D. MARSHALL and GEORGE M. MILLER, Executors, etc., of LEVIN R. MARSHALL, Deceased, Respondents, v. THOMAS A. DAVIES, Appellant, Impleaded with others.

      Liability of the obligor for deficiency on a forecloswe— when he is not bound, to pay taxes and assessments.

    Defendant executed to plaintiffs a bond and mortgage upon premises owned by iim, in the usual form, containing however no covenant for the payment of taxes and assessments. Subsequently he conveyed the premises, the grantee assuming and agreeing to pay the mortgage. Thereafter the grantee paid the interest accruing on the mortg-age and continued so to do after its maturity. The premises, after the maturity of the mortgage, became incumbered by taxes and assessments.
    In an action to foreclose the mortgage and hold defendant liable on his bond for any deficiencies, held, that he was not bound to pay taxes and assessments upon the premises after his conveyance, and that it was error in determining the deficiency with which defendant was to be charged to deduct their amount from the proceeds arising upon the sale.
    Appeal from a judgment of foreclosure entered herein, and from an order denying a motion to correct the same.

      Edmund Ooffin, Jr., for the appellant.

      Wheeler II. Peekham, for the respondents.
   INGALLS, J. :

The appellant, Thomas A. Davies, executed his bond and mortgage to the plaintiffs on the 1st day of February, 1871, to secure the payment of $16,000 on the 1st day of February, 1874. On the 3d day of October, 1871, Davies conveyed the mortgaged premises to Charles P. Leslie, who assumed the payment of such mortgage. In the month of October, 1872, Leslie conveyed the same premises to Peter P. Comen, who assumed the payment of said mortgage. The interest was paid to January 6, 1876, since which period no interest has been paid upon said bond and mortgage. The court has found the following facts : That the fact of the conveyances of the mortgaged premises, as found, was known to the plaintiffs and to their agents, Messrs. Miller and Peckham, at or before the time of the maturity of the bond and mortgage herein sought to be foreclosed; that the mortgaged premises, during the years 1874 and 1875, were worth more than $25,000; that the defendant, Peter P. Comen, was in active business in the city of New York during the years 1874 and 1875, and in solvent circumstances, and that he paid to Miller and Peckham, as agents for the plaintiff, for the management of the investments of the estate of Levin E. Marshall, deceased, the interest on the bond and mortgage herein sought to be foreclosed, semi-annually, during the years 1874, 1875 and 1876, up to and including the interest which became duo 1st June, 1876 ; that Messrs. Miller and Peckham were the agents of the plaintiff for the management of the investments of the estate of Levin E. Marshall, deceased ; that no demand for principal or interest on the mortgage debt was made of the defendant Davies after October, 1871, until about the 6th January, 1877 ; that Davies had no knowledge that this mortgage had not been satisfied at maturity until that date ; that he never, in any way, consented to any extension of time of payment of the mortgage or indulgence in time of such payment; that no demand for payment of the principal of this bond and mortgage was made of any one, until about the time of the commencement of this action, in January, 1877 ; that since the maturity of this mortgage there have been imposed upon the mortgaged premises taxes and assessments, which by law are liens superior to the mortgage, as follows : Taxes for 1875, $411.60; taxes for 1876, $392; taxes for 1877 — ; assessments confirmed 26th of March, 1874, $174.50; assessments confirmed 4th of March, 1876, $205.34; assessments confirmed 29th of December, 1876, $893.68; all of which are unpaid, and that no other unpaid taxes or assessments were outstanding upon the premises on the 1st February, 1877.

The court also found as a fact that the defendant Davies did not request the plaintiff Miller to collect the money upon the bond and mortgage when it became due, nor did he request that the mortgage should be foreclosed. The court decided that Davies was liable for the deficiency arising upon the sale of the premises upon such foreclosure; and that in determining the amount of such deficiency, there must be deducted from the sum due for principal and interest upon such bond and mortgage, with the costs of the action, and the said taxes and assessments, the amount for which the premises sold, and the balance would constitute the deficiency which Davies would be required to pay. The taxes and assessments imposed during the years 1875, 1876 and 1877, amounted to $2,741.04 ; and the deficiency ascertained upon the above basis amounted to the sum of $5,795.75, and judgment was by the order of the court docketed against said Davies for that amount.

Upon the trial the defendant Davies testified that in the year 1871, and after he had conveyed the premises to Leslie, he called at the office of Miller the plaintiff and “ asked him to collect the interest of Mr. Leslie, and also the principal sum when it became due ; and if he did not pay it to foreclose the mortgage at once ; Mr. Miller assented to that proposition.” Mr. Miller was examined as a witness and denies that any such request was made to him by Mr. Davies ; and as we have seen, the court found in plaintiff's favor upon that question. Two questions are presented: First. Whether the plaintiffs are not deprived of any remedy against the defendant Davies for the deficiency, on the ground that they delayed, for an .unreasonable length of time, all attempt to collect the money seemed by the bond and mortgage, after the same became due and payable ; and after they were requested by Davies to collect the same, if any such request was in fact made. Second. In case Davies should be held liable for such deficiency, whether it can legally be increased by deducting the said sum of $2,741,04, the amount of the taxes and assessments from the money received upon the sale under the foreclosure. In regard to the question last stated, we are convinced that under the facts found by the court, the taxes and assessments should not have been deducted, in determining the amount for which Davies could in any event be held liable. All of such taxes and assessments were imposed after he had parted with the mortgaged premises, and consequently they were not assessed to him or imposed upon any property which he then owned. Neither the bond or mortgage contains any express agreement to pay the taxes and assessments winch should be imposed upon the premises during the continuance of such bond and mortgage, and we perceive no ground, legal or equitable, from which any such obligation can be implied. It is also the fact that such taxes and assessments were imposed after the money secured by the bond and mortgage had become due and- payable. •If Davies had continued to own the premises he would have been •chargeable, with the taxes and assessments, and in such case he would probably be estopped from refusing to have the amount thereof deducted from the money realized upon the foreclosure of the mortgage. To hold him liable for such taxes and assessments, or which is the same in eifect, to direct the same to be deducted from the money realized upon the sale, in order to Ascertain the amount of the deficiency chargeable to Davies, would practically make him surety for the payment of all the taxes and assessments imposed upon such premises after his interest therein ceased ; and when the plaintiffs were aware that another person had become the owner of such premises, and that the money secured by the bond and mortgage had become due and payable; such .a result would be inequitable, and, we think, illegal. If the owner of á bond and mortgage is informed that the premises have been com veyed, he should see to it that his security is not impaired by an accumulation of taxes and assessments, which the owner of the premises has neglected to pay, as the mortgagor can only'be conm pelied, in such case, to pay according to the terms of the obliga^ tion which he has executed, and when we refer to the bond and mortgage in question, we fail to discover any undertaking on the part of Davies to pay beyond the principal and interest, and in case of collection by legal proceeding, the cost thereof. If the views which we have expressed are sound, it follows that the defendant Davies has been adjudged to pay a sum in excess of his actual obligation, and .the judgment and order are erroneous to that extent at least.

Upon the other question- there is a direct conflict in the evidence, which is doubtless attributable to a failure of recollection on the part of either Davies or Miller, as neither would testify to a state of facts which he knew to be false. After the examination of Miller, Davies was recalled and the following question was asked : “ Did you have any conversation with Miller during the years 1870 or 1871, at his office ?” This -was objected to on the ground that the witness had given his testimony, and the objection was sustained and the evidence excluded. We conclude that the learned judge should have allowed the witness to answer the question. First. It does not necessarily follow that the inquiry pointed to a conversation about which Davies had testified, nor that it was necessary to his defense in the first instance. The conversation called for by the inquiry may have developed a state of facts which would have settled the conflict satisfactorily to all concered. In such a case great latitude should be allowed in the examination of witnesses whose evidence is conflicting ; especially so when the issue involved is to be determined upon the evidence of the two witnesses. It might be suggested that the allowance or exclusion of the question should be regarded as discretionary on the part of the court. Such proposition is sound only in a qualified sense in any case. It is true the appellate tribunal is disinclined to interfere with such exercise of discretion, and very properly so, as ordinarily the trial court possesses superior advantages in determining the weight which should be given to the testimony of witnesses. We are of the opinion that in any view which can be taken of this question, in the light of the peculiar circumstances of this case, the examination should have been allowed. We are convinced that another opportunity should be allowed the parties to develop more fully the facts of this case, with a view to adjust the rights of the parties upon a proper basis.

There should be a new trial so far as the defendant Davies is concerned, and the judgment and order should be to that extent reversed, with costs to abide the event.

Davis, P. J., and Beady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: INGALLS, J.:

text:
    WILLIAM H. M. SISTARE, Appellant, v. WILLIAM J. BEST, as Receiver of the MECHANICS AND TRADERS’ SAVINGS INSTITUTION, Respondent.

      Barrings bank— liability of, for the acts of its president.

    A savings bank, having taken certain shares of stock to secure a loan made by it, resolved that it be sold by the president for the best interest of the bank. The president sold a part of the stock and directed the plaintiff, a broker, to sell the remainder at a price named, which he did, and so advised the president. ■Whereupon the latter informed him that he had, himself, previously sold the stock; plaintiff being unable to deliver the stock was compelled. to pay the purchaser §4,110.
    In an action against the receiver of the bank to recover the amount so paid, held that the bank was liable to the plaintiff for the damage occasioned by the act of its president.
    That the liability of the bank was not affected by the fact, that it was forbidden by statute to loan money upon personal security.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, and upon a case and exceptions.

      Henry 8. Bennett, for the appellant.

      Fredericlc Smythe, for the respondent.
   INGALLS, J.:

The Mechanics and Traders’ Savings Institution, being a corporation, became possessed of 1750 shares of the stock of the Atlantic Mail Steamship Company, having received the same as security for a loan of money to Joslyn & Co., amounting to $175,000. With a view to convert such stock into money, the directors of the said savings institution adopted the following resolution and recorded the same in its minutes:

“ Resolved, that the 1750 shares Atlantic Mail Steamship stock be sold by the president for the best interest of the bank, without further delay, and in such form as will protect the bank, in its claim against Joslyn & Co., and that he report his proceedings at the next meeting of the board.”

In accordance therewith, Alfred T. Conklin, then being a director of the said savings institution and the president of the board of directors, sold a portion of such stock, receiving therefor from $10 to $15 per share. He applied to the plaintiff, who was a broker, to sell 500 shares, being all that remained unsold, and instructed him to offer the stock for sale in the stock exchange every day until he was offered $25 per share and thereupon complete the sale. The plaintiff followed the directions of Conklin and sold the stock to a Mr. Davenport, in accordance with the rules and regulations of the stock exchange, with which Mr. Conklin is shown to have been familiar. Mr. Conklin was promptly advised of such sale, and called upon the plaintiff and informed him that he had previously sold said stock, but through inadvertence had omitted to inform plaintiff of such sale. An effort was made to induce Davenport to relinquish his purchase, which he refused to do, and required the plaintiff to fulfill his contract, and the plaintiff, being unable to deliver the stock, was compelled to pay the sum of $4,110, which he sought to recover of the said savings institution in this action. Upon the trial the defendant’s counsel moved to dismiss the complaint on the following grounds:

First. On the ground that any authority that was given by the bank to Mr. Conklin, in reference to these transactions, is contained in the resolutions which have been introduced in evidence, and which show that it was an express authority to Conklin to sell the stock himself, and that it did not authorize him to employ any one else to do so.

Second. Assuming that Mr. Conklin had the right, under the resolutions in evidence, to employ plaintiff to act as agent of the bank, and that plaintiff effected a sale of 500 shares of Altautic Mail stock as the agent of the bank, and that he was unable to deliver that stock for the reason, as he states, that Conklin had already parted with it himself, the plaintiff cannot maintain this action. If there is any cause of action it is one in favor of the party who purchased the stock, for the recovery of the damages sustained by him, arising out of the refusal or neglect of the bank to comply with the terms of the contract.

Third. The bank had no authority to deal in this stock as a bank. They had no authority to authorize the sale of this stock, and the resolution adopted by the board of trustees authorizing Mr. Conklin to enter into this contract with plaintiff, if it did authorize him to enter into it, was absolutely void because the' bank never acquired any right, title or interest in that stock and had no right to, and was prohibited by law from dealing in it.

The court granted the motion and dismissed the complaint with costs, to which decision and ruling the plaintiff’s counsel excepted. The plaintiff moved for a new trial upon the minutes of the court, which was refused; and the plaintiff has appealed from the judgment and the order.

The authority conferred by the savings institution upon Conklin to sell the stock was not restricted either as to time, place or manner, and in selecting the stock exchange he adopted the mode usually pursued in disposing of such securities, and the price there offered proved the wisdom of such choice, and it would have been fortunate for all concerned if he had adhered to it instead of making a private sale. We cannot doubt but that' Conklin was authorized to employ the plaintiff to make such sale, as such authority could properly be implied from the general character of the instructions which he received, the nature of the property to be disposed of, and the custom which prevailed in regard to the sale of such securities. (Anderson v. Coonley, 21 Wend., 279; Story on Agency, §14.) The plaintiff faithfully pursued the instructions which he received-from Conklin, and is not even charged with fraud, negligence or incapacity. The loss was occasioned by omission of duty on the part of Conklin, in not informing the plaintiff that he had sold the stock previous to the sale at the stock exchange. Conklin represented the savings institution in two capacities. First. As its president; second, as its duly constituted agent for this particular purpose; but he must be regarded a general agent for this service, as he received no specific instruction which restricted his authority in regard to the plan or mode of sale. (Anderson v. Coonley, supra.) It is further insisted by the respondent that the corporation was not only without authority to loan the money to Joslyn & Co. upon such security, but was by statute expressly prohibited from making such loan and receiving such security, and 'that the entire transaction was, therefore, absolutely void, and tlie corporation could not be made liable for the loss even though occasioned by its own act. We are unable to accept this proposition as sound, either in law or equity, as applied to the facts of this case. This corporation was formed under the laws of 1852 (chap. 368), and we discover no provision of such statute which, in express terms, prohibited the loan in question, upon such security. A statute which was enacted in 1853 (chap. 257), and which, by its terms, was made applicable to all savings institutions, contains the following provision: “Section 6. The provisions of this act shall apply to all savings banks, or institutions for savings in said counties (New York and Kings), which savings banks or institutions for savings are hereby prohibited from loaning the moneys deposited with them, or any part thereof, upon notes, bills of exchange, drafts or any other personal securities whatever.” This defense might possibly be available in an action between the parties to the original loan, or as a ground for depriving the corporation of its charter. The savings institution made the loan, accepted the stock as security, treated the same as its property, and directed its sale, and so far as the case discloses no person has made any claim to the stock, or complained of the sale thereof. The prohibition contained in the statute, to which we have referred, could not possibly have the effect to divest the stock of its character as property. What then was the corporation to do with it ? Certainly it was not called upon to destroy it, nor can the statute operate as a perpetual injunction to prevent the corporation from selling the same, and thereby realising the money loaned, and for the security of which the stock was received. The corporation, at a proper time, and by the usual method, directed a sale of the stock, by and under the supervision of its president, who resorted to the usual mode for selling such securities, and the plaintiff pursued strictly, and in good faith, the directions which he received from Conklin, and obtained an offer for the stock greatly in excess of that which Conklin received upon the sale which he made; and in consequence of the failure of Conklin to inform him that the stock had been previously sold, the plaintiff incurred a personal liability, by which he was compelled to pay the said sum of’$4,110, without any fault on his part. We cannot hesitate in regard to the equitable right of the plaintiff to recover in this action, and we are satisfied that the law does not compel this court to defeat such equity by allowing the corporation, or its representative, to assert its own wrong as a defence to the just claim of the plaintiff. The law is not chargeable with such inconsistency and injustice. (De Groff v. Am. Linen Thread Co., 21 N. Y., 124.) Judge BacoN remarks: “ If, however, they acquired the goods in any such way as to make the transaction doubtful, as a question of power, what are the corporations to do with property thus forced in or upon their hands ? Must they purge the illegality by giving the goods away or destroying them, or may they not sell and transfer a good title to a purchaser ? I think beyond all doubt they may, and that the contract can be upheld and enforced on this ground.” (See, also, Bissell v. M. S. and N. I. R. R. Co., 22 N. Y., 259; Tracey v. Talmage, 14 id., 162; The Oneida Bank v. The Ontario Bank, 21 id., 490; Buffett v. T. and B. R. R. Co., 40 id., 168; Sutton and others v. Tatham, 10 Adolph & Ellis, 27.)

We conclude that the complaint was improperly dismissed, and the judgment must be reversed and a new trial ordered, with costs to abide the result.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


text:
    DAVID W. BRUCE and others, Executors and Trustees, etc., of DOROTHEA A. L. WOLFE, Deceased, Respondents, v. THE FULTON NATIONAL BANK OF NEW YORK, Appellant.

      Covenant of renewal — when the lessee is not bowid to accept.

    'When a covenant of renewal in a lease is binding- only upon the lessor, while it is optional with lessee to accept a renewal or not.
    Appeal by the defendant from a judgment entered in favor of plaintiffs, after a trial by the court at Special Term.

      The judgment “ ordered, adjudged and decreed that upon the execution and tender by the plaintiffs, as executors and trustees under the will of Dorothea A. L. Wolfe, the original lessor, or by the survivors of them, or their successors or assigns, of a new lease, or renewal of lease, as is required by the covenants of the lease set forth in the complaint, in respect to the next succeeding term of twenty-one years in the original lease provided for, namely, from May 1, 1877, at the annual rent of $1,600 (besides taxes and assessments), payable in the manner expressed in said •lease, and which renewal lease shall contain the covenants and conditions in that behalf expressed in the original lease in respect to the first renewal therein provided for, the defendant accept the same and execute and acknowledge the same or a counterpart thereof under its corporate seal, and by its lawful agents or officers, thereunto duly authorized.”

      8. P. Wash, for the appellant.

      A. P. Man, for the respondents.
   INGALLS, J.:

On the 28th day of February, 1859, Dorothea A, L. Wolfe and John David Wolfe leased to Joseph Kernochan, president of the Fulton Bank, in the city of New York, certain premises situated upon Pearl street, and particularly described in the lease and in the complaint, for the term of twenty-one.years, from the 1st day of May, 1856, at the yearly rent of $1,600, payable quarterly. The lessee entered under such lease and has erected thereon a banking house. The lease contains the following provision: “All the said parties of the first part do hereby covenant and agree that if the said party of the second part, or their assigns, shall well and truly pay the rent hereby reserved, and keep and perform all the covenants herein contained on the part and behalf of the said party of the second part, his successors or assigns, that the said Dorothea L. Wolfe, her heirs or assigns, shall and will, at the end or expiration of the term hereby granted, grant unto the said party of the second part, or his successors or assigns, a new lease of said premises hereby demised for a further term of twenty-one- years next ensuing, from the time of the expiration of the term hereby granted, at such annual rent (not less than the rent hereby reserved) as shall have then been agreed upon by the parties or otherwise determined or ascertained as hereinafter provided; and it is mutually covenanted and agreed between the parties hereto that if the said Dorothea A. L. Wolfe, her heirs or assigns, and the said party of the second part, his successors or assigns, do not agree on the amount of rent to be reserved on said renewed lease, then the said Dorothea A. L. Wolfe, her heirs or assigns, shall nominate one fit and impartial person, and the said party of the second part, his successors or assigns, shall nominate one fit and impartial person, both of whom shall be owners of real estate in said city, to value the fee simple of said demised premises, said premises to be valued as vacant or unimproved land, said nominations to be made at least four months before the expiration of the term hereby granted; and if the persons so chosen shall differ in judgment, as to the value of the said premises, the two so appointed shall appoint a fit and impartial person to be associated with them for that purpose, and the decision of any two of the three persons so chosen, as to such value, shall be conclusive on the parties interested; and the interest at the rate of five per cent per annum on the value so estimated shall be the annual rent to be reserved by said new lease, provided such rent is not less than the rent hereby reserved; the said new lease to contain the same covenants herein contained, except the covenants to renew, and said now lease to contain a covenant on the part of the said Dorothea A. L. Wolfe, her heirs or assigns, to renew the lease for another term of twenty-one years as hereinafter provided.”

Then follows a covenant, in precisely the same form, for a second renewal, upon the same terms, except the covenant for still further renewal, and then a provision that if any part of the premises shall be taken for widening or extension of a street, the lessor shall receive the award and make corresponding reduction from the rent. The lease then proceeds as follows : “ It is further covenanted and agreed between the parties hereto that at least ninety days previous to the expiration of the last renewed or third term of twenty-one years, if said last term shall he granted in pursuance of the covenants and conditions herein contained, the lot of land hereby demised, or so much thereof as shall not have been taken for any public purpose, shall be valued and appraised as a vacant lot by arbitrators, appointed in the maimer hereinbefore provided for on the renewal of this lease, and that the said party of the second part, or his successors, acting for and in behalf of said, the Fulton Bank in the city of New York, or his or its assigns, shall purchase said lot at such its appraised value, and that the said Dorothea A. L. Wolfe, her heirs or assigns, shall and will, at the expiration of said third or last term, if granted as aforesaid, sell, and on receiving such appraised value grant and convey to the said party of the second part, his successors or assigns, the lot of land hereby demised in fee simple.”

The plaintiffs have offered to renew the said lease for another term of twenty-one years; and have taken the steps prescribed in the said lease to ascertain the amount of rent which should be paid by the defendants during such second term. The defendant refuses to accept a renewal, upon the ground that there is no covenant in the lease which compels such acceptance; and it is, therefore, optional with the defendant to accept or refuse the same; and that such was the intention of the parties who originally executed the lease, as appears from the lease when properly interpreted in the light of the circumstances surrounding the transaction. The plaintiffs have instituted this action to compel the defendant specifically to perform the agreement, by accepting a renewal of the lease, and paying the rent; to bo ascertained according to the provision of the lease above mentioned, upon the ground that the express covenants contained in the lease, when construed together, impose the obligation upon the defendant to accept such renewal; and that if this position cannot prevail, then they insist that a covenant to accept such renewal should be implied from the express covenant of the lessors to grant such .renewal. This presents the material question to be considered upon this appeal.

The learned counsel for the respondent very aptly remarks, in his points, “ we may hardly expect to find precedent covering the precise covenants in question. They are peculiar to the present case, which must be decided upon the force of the document before us.” After examining numerous decisions bearing generally "upon the subject, we have failed to find one which applies so exactly to the peculiar facts of this case, as to enable us to adopt it as decisive thereof. We are convinced that the determination of the case must depend upon the intention of the parties, as ascertained from the lease, giving due weight to the circumstances which surround the transaction. We are unable to discover any express undertaking on the part of the lessee to accept a renewal of the lease, and we must, therefore, inquire whether such a covenant can be implied. It is obvious from the lease itself that it was prepared with caution and skill, and with an evident intention to provide for every contingency which would be likely to arise, and, therefore, it cannot reasonably be inferred that the absence of an express covenant, on the part of the lessee, to accept a renewal, was the result of inadvertence or ignorance. If it had been the intention of the parties to the lease to impose upon the lessee so important an obligation, it is passing strange that such a covenant was not inserted. Parties are expected to incorporate the terms of their agreement, in the written instrument which they execute. The province of the court is to construe and enforce contracts, and not to make them for the parties, and a covenant will only be implied when it clearly appears that it was intended and then only from necessity, to prevent the failure of the contract. (Hudson Canal Co. v. Penn. Coal Co., 8 Wall., 276.) In Aspdin v. Austin (5 Adol. & Ellis [N. S.], 671; 48Eng. Com. Law Reports), DeNMAn, C. J., remarks: “ But it is a manifest extension of that principle to hold that, where parties have expressly covenanted to perform certain acts, they must be held to have impliedly covenanted for every act convenient or even necessary for the perfect performance of their express covenants. Where parties have entered into written engagements with express stipulations it is manifestly not desirable to extend them by any implications; the presumption is that, having expressed some they have expressed all the conditions by which they intended to be bound under that instrument.” (Churchward v. The Queen, Law Rep. [1 Q. B.], 173.) If the parties understood, and intended that the lease should absolutely continue sixty-three years, it was certainly much easier for them to have so stated therein, rather than through a series of renewals to endeavor to reach that result. The term of twenty-one years was a long period, even for the purpose intended, and the lessors doubtless considered the contract profitable, talcing into account the amount of rent reserved, and the value of the improvements which would become theirs at th® expiration of 'the twenty-one years, if the lease then terminated. It does not seem unreasonable to infer that the lessee may have regarded the enterprise, so far a matter of experiment, as not to have desired to be absolutely compelled to retain the premises beyond twenty-one years; yet in case it proved successful, to be at liberty to exact a renewal of the lease upon the terms specified. Judging from all the circumstances attending the transaction and estimating as well as we are able the motives and expectations of the respective parties in regard to the matter, and also considering the various and carefully prepared covenants contained in the lease, we are led to the conclusion that the parties intended that the lessee should not be bound absolutely to accept a renewal of said lease, but to have the privilege or option to exact the same if desired. The learned judge who decided this case evidently relied very much upon an intimation contained in the opinion expressed in Johnson v. Conger (14 Abbott, 195). It will be perceived by examining that case, that the defendant was required to perform an express covenant which was based upon an adequate consideration, independent of any obligation on the part of the plaintiff to accept the renewal of the lease. The case would be much in point, if the parties to this action were reversed, and the lessors were required to perform the express covenant to renew. We cannot regard the remark of the learned judge, who delivered the opinion in the case of Johnson v. Conger, above mentioned, “that one party was bound to give and the other to accept such renewal,” as controlling in the decision of this case, upon the facts developed. There are some expressions contained in this lease which seem to convey the impression that the lessors did not, at the time, deem it absolutely obligatory upon the lessee to accept a renewal of the lease. The following is one : “ It is further covenanted and agreed between the pai’ties hei'eto that, at least ninety days previous to the expiration of the last renewal or third term of twenty-one years, if said last term shall he granted in pursuance of the covenants and agreements herein contained,” etc. This is the expression of both parties, and implies uncertainty as to whether such renewal would be made. Closely following the above occurs .tbis provision : And that the said Dorothea A. L. Wolfe, her heirs or assigns shall and will, at the expiration of said third or last term, if granted, as aforesaid, sell,” etc. These expressions standing alone would not probably be controlling upon this question of construction, but are significant when considered with the other facts bearing upon. the same subject. In regard to the mutual covenant to arbitrate as to the amount of rent to be paid, that necessarily depended upon the determination to renew the lease, and hence that covenant cannot be regarded inconsistent with the position assumed by the defendant, that the bank is under no legal obligation to accept such renewal. The amount of rent to be paid only becomes material when it is settled that such renewal is to be made. There is a class, of cases much relied upon by the respondent, of which Pordage v. Cole (1 Saund., 319) ; Barton v. McLean (5 Hill, 256) ; Richards v. Edick (17 Barb., 261); Frey v. Johnson (22 How. Pr., 316), are examples. In deciding those cases much stress was laid upon the peculiar phraseology of the contracts which were the subjects of adjudication. Again, in those cases, the intention of the parties in regard to the particular covenants was not in dispute. The court, in those cases, to prevent a failure of the entire contract for want of consideration to uphold it, implied a covenant on the part of one party to perform the act which constituted the immediate and only consideration for the covenant on the part of the other party. We deem the case at bar, upon principle, distinguishable from both cases, in every particular above mentioned. In this case the main subject of the contract has been performed by both parties without question, and the covenant sought to be implied can in no sense be regarded as indispensable to constitute a consideration for the contract, or even for the covenant to renew-. The facts indicate that the lessee did not intend to create an absolute obligation to accept a renewal, and there is nothing in the nature of the covenant to renew which renders inconsistent or unreasonable the position assumed by the defendant, that acceptance of such renewal was intended to be, and actually is, optional and not absolute on the part of the bank.

After a careful examination of this case, we conclude that the judgment must be reversed and a new trial ordered, with costs to abide the event.

BRADY, J., concurred; Davis, P. J., dissented.

Judgment reversed, new trial ordered, costs to abide event.


author: Davis, P. J.: INGALLS, J.,

text:
    SAMUEL H. HURD, Receiver, etc., of the Third Avenue Savings Bank, Appellant, v. PETER WARREN, Administrator, and ELIZA LACEY, Administratrix of JOHN LACEY, Deceased, and NICHOLAS QUACKENBOSS, Respondents.

      Surrogate of Mem York — allowances undei' chapter 359 of 1870 — subject to the limitation of the Code, § 309.
    The surrogate of New York, in granting allowances in lieu of costs, under section 9 of chapter 359 of 1870, is subject to the limitation imposed by section 309 of the Code, and can in no case make an allowance exceeding $2,000 to all the parties or five per cent upon the amount recovered, or the claim or subject-matter involved.
    Appeal from a decree of the surrogate of New York, 'directing the appellant, as receiver of the Third Avenue Savings Bank, “ to pay to N. Quackenboss, Esq., counsel for the respondents, out of the funds in his hands as such receiver, $275 in lieu of costs.” The receiver had made a claim against the estate, which had been .referred to an auditor, and by him rejected as barred by the short statute of limitation.

      F. Smith, for the appellant.

      II. Quackenboss, for the respondents.
   Davis, P. J.:

This court has already held that the surrogate’s power to make allowances is subject to the limitations imposed by section 309 of the Code, and can in no case exceed $2,000 to all the parties. (Down v. McGourkey, 15 Hun, 444.) It is subject, also, to the limitation of five per cent upon the amount recovered, or claim or subject-matter involved. The whole amount of the claim was $3,250 in this case, on which five per cent is $162.50. The surrogate allowed $275; that allowance must be reduced to $162.50, and the order should be modified by making such reduction and affirmed as modified.

Beady J., concurred.

INGALLS, J.,

dissenting.

This is an appeal from the decree of the surrogate, disallowing a claim asserted by the plaintiff' as receiver of the Third Avenue Savings Bank, on the ground that it was barred by the short statute of limitations. The referee, to whom the matter was referred by the surrogate, has reported the evidence taken by him, with his conclusion that the claim has become barred by such statute of limitation, and we are satisfied that he has decided correctly. The surrogate has confirmed the report of the referee and allowed the sum of $275 in lieu of costs and expenses to be paid out of the fund in the hands of the receiver. It is contended by the appellant that the surrogate was not authorized to impose ■such costs. We do not- agree with the appellant in this proposition. The statute of 1870, chapter 359, section 9, provides as follows: “The surrogate of said county (New York) may grant allowances, in lieu of costs, to counsel in any proceeding before him in the same manner as are now prescribed by the Code of Procedure in civil actions.” The receiver voluntarily instituted the proceedings to collect the claim and submitted to the jurisdiction of the surrogate, and we perceive no substantial reason why the surrogate did not possess the authority to make the allowance of costs, which do not seem to be unreasonable in amount, nor does it appear inequitable to charge the same upon the fund in the hands of the receiver who has occasioned them.

The decree must be affirmed, with costs and disbursements, to be paid by the receiver out of any funds in his hands belonging to the trust.

■ Judgment modified by reducing allowance to $162.50, and 'affirmed as modified, without costs.


author: Per Curiam :

text:
    MORRIS DUSSELDORF, Respondent, v. LUDWIG REDLICH and W. H. HARDMAN. composing firm of L. REDLICH & Co., Appellants.

      Code of Civil Procedure, section 682 — right to have secw'ity on attachment increased wider — widei'taking given wider section 688 not a waiver of.

    The giving- of an undertaking under section 688 of the Code of Civil Procedure to relieve property attached ii-oin. the lien thereof, is not a waiver of the right to have the security given upon the issuing of the attachment increased, in pursuance of section 682 of the said Code.
    Appeal from an order denying a motion, under section 682 of tire Code of Civil Procedure, that additional security be given on an attachment.
    The plaintiff obtained an attachment against the defendants as non-residents, upon filing the usual bond required by the Code. The defendants thereupon appeared and filed a bond, as required by statute, to discharge the attachment, the sureties duly justified, the bond was approved and an order was entered by defendants discharging the attachment. Defendants now moved that plaintiff's bond, given to obtain the attachment, be increased.

      Rudolph Sampler, for the appellants.

      Otto Horwits, for the respondent.
   Per Curiam :

The affidavits on the part of the appellants show a case entitling them to additional security. The court denied the motion solely on the ground that the giving of an undertaking, under section 688 of the Code of Civil Procedure, to relieve the property attached from the operation of the attachment, is a waiver of the right to have the security increased, pursuant to section 682 of that Code.

We think the undertaking, under section 688, becomes merely a substitute for the property attached, and the warrant of attachment is not thereby so far discharged as to prevent the defendants from requiring the additional security provided for by section 682.

The order should be reversed, and an order made directing additional security to be given in the sum of $500, with sureties who can justify in at least double that amount, with ten dollars costs and disbursements.

Present — Davis, P. J., Beady and Ingalls, JJ.

Ordered accordingly.


author: Per Ouriam:

text:
    WILLIAM ORR, ALEXANDER M. ORR and FREDERICK W. ORR, Respondents, v. JOSEPH McEWEN and NATHANIEL McEWEN, Appellants, Impleaded with JOSEPH E. WILLIAMS.

      Substituted service — time to answer expires in twenty days — entry of judgment against joint-debtors.

    A defendant served by substituted service, in pursuance of sections 435 and 436 of the Code of Civil Procedure, must answer within twenty days from the time of such service.
    Where one joint-debtor has been personally served, and the other has been served by substituted service, plaintiff cannot enter judgment until the time to answer of the defendant served by substituted service, has expired, and must then enter judgment against both.
    Appeal from an order of the Special Term denying a motion to vacate a judgment, entered against these defendants on a partnership liability, immediately after the expiration of the time to answer of the defendant Nathaniel McEwen, and before the time of the defendant Joseph McEwen, had expired, The defendants were partners under the firm name of J. & N. McEwen. The complaint alleged that as such they had indorsed a promissory note. On August 10, 1878, on proof of service of the summons and complaint on Nathaniel McEwen, judgment was entered against both, to be enforced against their joint property, and the separate property of Nathaniel McEwen. August third an order had been made directing service of the summons and complaint on the defendant Joseph McEwen, by substituted service, and such service was on the same day made. On the expiration of the latter’s time to answer, the plaintiff entered a second judgment, in form like the first, except that it was enforceable against the separate property of Joseph McEwen instead of that of Nathaniel MoEwen. This judgment Judge DoNOHüé vacated. He denied the motion so far as it concerned the earlier judgment, on the aground that the statute contemplated personal service.

      J. II Dougherty, for the appellants.

      G. W. Davenport, for the respondents.
   Per Ouriam:

The mode of entering judgment against joint-debtors, where all have not been served, is regulated' by section 136 of the Code of Procedure, which is still in force. (Throop’s Code of Civil Procedure, 735.) Where all have been served, Judgment must be entered against all, and the provisions of section 136 do not allow separate judgments. The only question on this appeal is whether both of the joint-debtors, against whom the action is brought, had been served within the meaning of the Code, at the time the judgment sought to be set aside was entered. One of them, the appellant, had been personally served; the other had been served by substituted service. By sections 435 and 436 of the Code of Civil Procedure provision is made for substituted service in the cases therein mentioned, and section 437 declares the effect of sucji service. It provides that “ on filing an affidavit showing service, according to the order, the summons is deemed served, and the same proceedings may be taken thereupon as if it had been served by publication, pursuant to an' order for that purpose.” The effect of this provision is to make the service described in the order for substituted service equivalent to service by publication, and the result is that the defendant, on whom such service is made, is in default at the expiration of twenty days from the time of making the service. It is equivalent, therefore, so far as it affects the right to enter judgment against joint-debtors, to personal service, and no judgment where one or two joint-debtors have been served personally, and the other by substituted service in accordance with an order, can be entered against the one personally served; and the plaintiff must wait the expiration of the time to answer of the one last served.

The judgment in this case was therefore irregular, and must be set aside; but as the question of practice is new, and was deemed doubtful by the court below, we think no costs, either of the motion or of this appeal, should be allowed. ^

Present — Davis, P. J., Beady and ÍNGalls, JJ.

Judgment set aside, without costs of motion, or of this appeal.


author: Per Ouriam :

text:
    GREENLEAF K. SHERIDAN as Executor, etc., of FREDERICK H. JACKSON, Deceased, Appellant, v. JULIA R. HOUGHTON and others, Respondents.

      Attorney — when not privileged from, testifying,

    Appeal from a decree of the surrogate of the county of Now York, establishing a will of David S. Jackson, which was alleged to have been lost or destroyed after his death.,
    The execution of the will of the alleged testator was shown. It was clearly shown, also, that the will existed at the time of the testator’s decease; that it was found in his office and read in the presence of his family, and then delivered to one of his sons, David S. Jackson, Jr. It had never been presented for probate, nor was it produced, nor was any account given of the disposition made of it by David S. Jackson, Jr., who was shown to be deceased.
    The court at General Term, after directing a new hearing before the surrogate for failure to comply with the statute, proceeded: “It appears by the papers that the attorney by whom the will was drawn suffered himself to be retained on the part of the heirs who opposed the probate of the will, and refused to answer proper questions put to him upon the trial, upon the ground that he was not at libei’ty, having been counsel for the testator, to disclose what ho chose to consider confidential communications. The surrogate did not see fit to require him to testify to such ' facts in relation to the preparation and the contents of the will, in respect of which he was not only competent but bound to testify. A failure of justice must not be permitted on any such pretext, and we tbink, upon a new trial, there will be no difficulty in developing suck facts as will prevent the failure of clearly manifest justice in this case.”

      J. 8. Lawrence, for the appellant.

      JE. Luther Hamilton, for the respondents.
   Opinion

Per Ouriam :

Present — Davis, P. J., Beady and INGalls, JJ.

Decree reversed; proceedings remitted to the surrogate, with directions to proceed with the bearing of tbe case, without costs to either party on appeal.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWIN V. KIRTLAND. Respondent, v. PATRICK DILLON, Appellant.

      Power of the eowrt to set aside a struck jury, and order a new jury to be struck.

    Where a struck jury has been ordered and irregularities have occurred in the striking thereof, the court may order the jury to be set aside and discharged, and a new jury to be struck.
    Appeal by tbe defendant from an order of the Special Term, setting aside and discharging a struck jury and directing the clerk to strike a new one.

      Henry Smith, for the appellant.

      Hale Kingsley and Matthew Hale, for the respondent.
   Learned, P. J.:

The court had ordered a struck jury. Afterwai’ds, for irregularities in the striking of the jury, the court ordered that jury to be set aside and discharged, and a new jury to be struck. The defendant appeals, and insists that the court had no power to make such an order. I see no reason why the court might not set aside an order which it had made. The cases cited by the appellant, Rex v. Perry (5 Durn. & East. 453), Holt v. Meddowcroft (4 M. & S., 467), Montague v. Smith (21 Law J. Rep. [N. S.], Queen’s Bench, 73) are not in conflict with this view. The last two only hold that, while the struck jury stands, the case cannot be tried by a common jury. The first held that, when the case went off for default of the attendance of jurors, a new jury should not be struck ; but this does not touch the right of the court, on proper cause shown, to set aside the former order, and to grant another of a like character.

In the case of the Attorney-General v. Goodman (8 Price, 220), a struck jury failed to appear, and a new jury was ordered. The case of Rex v. Perry (ut supra) was cited in opposition to the order ; but it could not have been held to prevent the court from ordering a new struck jury, in a proper case.

In the present case there seems to have been some irregularity in the manner of preparing the list, from which the names are to be struck. It would be strange if the court could not set aside the former order, and afford an opportunity for a more strict compliance with the statute.

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

Present — Learned, P. J., Boardman and Bocees, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    ISAAC JACKSON, Respondent, v. HORACE F. McKNIGHT, Appellant.

      Money paid under a mistake — when it cannot he recovered hack.

    On March. 23, 1875, defendant purchased a bond and mortgage executed by plaintiff, then several years overdue. Interest on it was payable annually on September tenth. The interest due on September 10, 1874, had been paid, but on the defendant claiming that that interest had not been paid, the plaintiff, forgetting the payment, paid it to him. In January, 1876, defendant assigned the mortgage. Subsequently plaintiff brought this action ag-ainst him to recover the amount of interest due September 10, 1874, which had been, as above stated, a second time paid by him.

      SeM, that as at the time of the payment the whole mortgage, both principal and interest was due, so that a much larger amount than was paid was then due from the plaintiff, and as the plaintiff would have the benefit of the payment on the debt, whenever the bond and mortgage should be foreclosed, this action could not be maintained.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.
    The action was brought to recover money alleged to have been paid to the defendant under a mistake of fact.

      John B. O’Malley, for the appellant.

      James O. Miller, for the respondent.
   Learned, P. J.:

On the 23d of March, 1875, the defendant was the assignee and owner of a bond and mortgage executed by the plaintiff, which had become payable several years before. The interest had been payable annually on the tenth of September, and it had in fact been paid up to September 10, 1874. On the day first mentioned, the defendant stated to the plaintiff that $230 of interest, payable September 10, 1874, were unpaid, and the plaintiff thereupon paid the defendant $230 for such interest, not remembering, at the time, that the interest had been- paid to that date. In January, 1876, the defendant assigned the bond and mortgage. After a lapse of two years the plaintiff sued to recover back this money as overpaid by mistake.

The difficulty is that, at the time when the plaintiff made this payment, he was owing the defendant a much larger amount, overdue and payable on the very obligation upon which this payment was made. Clearly, if the plaintiff had handed the defendant $230 to apply on the bond and mortgage, he could not have recovered that sum back. But in this present case he claims to recover, because it was intended as a payment of interest which had, in fact, been paid; and not as a payment of principal, which, had not. The payment, however, was really made on the debt. The plaintiff is, and'always will be, entitled to a credit for so much, paid thereon. The defendant and the defendant’s assignee can enforce the bond and mortgage only for what is payable, after crediting this and all other payments. In fact, over six months’ interest had accrued at the time when this money was paid, payment of which (it would seem) might have been demanded, the principal being overdue. And further, after this money was paid and before the suit was commenced, even before the defendant assigned the bond and mortgage, interest accrued on the bond and mortgage more than this amount. How any subsequent payments were made is not shown.

The action to recover money paid by mistake is sustained, because otherwise the party would suffer an unjust loss. It should not be extended to oases where the relief is not necessary. It is not necessary in the present case, because the plaintiff can protect himself whenever he is sued on the bond and mortgage. Perhaps, in such suit, the holder of the mortgage may voluntarily give the plaintiff the credit to which he is entitled for this payment. Any questions between the defendant and his assignee, as. to the defendant’s liability on the assignment, they must settle, among themselves.

The judgment should be reversed, a new trial granted, the reference discharged, costs to abide the event.

Present — Learned, P. J., Boardman and Bocees, JJ.

Judgment reversed, new trial granted, reference discharged,, costs to abide event.


author: Bockes, J. : Learned, P. J.,

text:
    WILLIAM C. CHURCH, as Administrator, etc. of MARY M. CHURCH, Appellant, v. SETH HOWARD, Respondent, Impleaded, with ALBERT G. FARGO.

      Note — when payable in gold coin — what alteration thereof discharges sweties — Code of Civil Procedure, § 399 — -what not inadmissible under — Statement by an administrator — when admissible against the estate of his intestate.

    One Fargo gave a note signed by one Howard, as surety, by which, two years from date he promised to pay “§2,000 with interest semi-annually at seven per cent in gold or its equivalent.” After the maturity of the note it was altered by the direction and consent of the payee and of Fargo, but without the knowledge or consent of Howard, the surety, by striking out the words “in gold or its equivalent.”

      Held, that the note, as originally drawn, required a payment in standard gold or its equivalent; that the erasure of these words was a material alteration, and that the surety was thereby released. (Learned, P. J., dissenting.)
    The payee having died, this action was brought by her administrator. Upon the trial Fargo, who offered no defence, was allowed, against plaintiff’s objection and exception, to testify in behalf of Howard, as to personal transactions had by him with the deceased. Held, that as his testimony was not in his own behalf or interest, or in behalf of the party succeeding to his title or interest, it was not inadmissible under section 829 of the Code of Civil Procedure.
    Upon the trial evidence as to statements made by the plaintiff, the administrator, to the effect that he erased the clause in the note at the direction of the payee, was admitted. Held, no error.
    Appeal from a judgment in favor of tbe defendant, entered upon the verdict of a jury.
    The action was brought upon a promissory note made by the defendant Fargo, to the order of plaintiff’s intestate, and signed by defendant Howard as surety. The latter defended on the ground, among others, that after the execution and delivery of the note, a material alteration was made without his knowledge or consent.
   Bockes, J. :

The defendant Howard was surety on the note in suit in its original form, which note then read as follows, to wit:

$2,000.
“ Two years from date, I promise to pay Mary M. Church, or ' » bearer, $2,000 with interest, semi-annually at seven per cent in gold or its equivalent, value received.
“A. G. FARGO.
“ Seth Howard, surety.
“ Eaton, January 18, 1870.”

The jury found on the evidence submitted on the trial that the note, after its inception, was altered by erasing the words in gold or its equivalent, and that such alteration was made under the direction, or with the approval-of the payee, the then holder, and without the consent, sanction or ratification of the surety; for which reason the latter was discharged from liability thereon. It is urged as grounds of error on this appeal (1st) : That the alteration was entirely immaterial, and in no respect changed the legal effect of the note; and (2d). That improper evidence was admitted against the plaintiff’s objection, to his injury. It is undisputed that an alteration of a note by the payee, after its execution and delivery in a material part, without the consent or ratification of the maker, renders it inoperative and void; and so, of course, as to a surety under like circumstances. If changed in a material part, it no longer remains the same contract originally entered into, to the terms and conditions of which the party bound himself. In this case the alteration of the note by the erasure of the words “ in gold or its equivalent” is not disputed, and the jury have found that such alteration was by the payee, or by her authority, and also that it was made without the sanction of the surety. Then did the erasure of those words change the legal effect of the contract ? Did the erasure make it in any inspect a different contract from what it was originally ? Were these erased word, meaningless — mere surplusage ? We are of the opinion that they had significance, and were material to the obligation assumed by the parties to the contract. The makers promised payment in gold or its equivalent. It may be that on a breach— that is, on the non-payment in gold or its equivalent — the damages recoverable would be measured by the standard or legal dollar; what the parties promised to do is one thing, and the measure of damages for a breach quite another matter. So it was held in Bronson v. Rodes (7 Wall., 229) that when the obligation was to pay so many dollars “in gold or silver coin, lawful money of the United States,” the contract called for coined dollars according to their market-value. In this case the chief justice considered the financial condition of the country at the time the obligation was entered into, and the purpose which the parties had in view in the use of the language employed by them, and gave construction to such language, according their evident intent; and, in Butler v. Horwitz (7 Wall., 258) it was held that whether the contract be for the delivery or payment of coin, bullion,, or other property, damages for non-performance must be assessed in lawful money; and this, too, whether the contract was made before or since the passage of the legal-tender act. It is proper here to note that the decision in Jones v. Smith (48 Barb., 552) was made on the strength of Rodes v. Bronson (34 N. Y., 649), which was reversed in the United States Court (7 Wall., 229), above cited. Now, the contract in this case is to pay “in gold or its equivalent,” thus gold, was in contemplation between the parties as a commodity, and its “equivalent,” considered as a commodity, was stipulated for as an alternative for the non-payment in that article. The parties so understood the contract and acted upon such understanding ; and the erasure was made with the express purpose to effect the change in the obligation ; nor was the understanding of the parties in conflict or inconsistent with the language employed to express their purpose ; and it is also the settled law of this State that it is unimportant whether the alteration be beneficial or prejudicial. It is sufficient that the change is material. The party may insist that the contract shall remain and be enforced against him as originally made. If changed from this without his knowledge or approval, it is not his contract. Nor does it obviate the difficulty that the alteration was made after the note became due; hence did not change the liability of Mr. Howard. So soon as changed in a material point it was not his contract. He may insist that it shall remain in all its material parts as originally made. We are of the opinion, therefore, that the erasure of the words from the note in this case effected a change in the obligation as made by Mr. Howard, available to him as a defence to the action. It is not deemed necessary to comment upon, or here collate the numerous cases cited by the learned counsel bearing more or less directly upon the question presented in this case, which cases are not entirely harmonious; but we content ourselves by expressing our conviction that according to the legal import of the obligation in this case, giving fair construction to the language employed, payment was promised in standard gold or its equivalent.

It remains now to enquire whether improper evidence was admitted or rejected during the trial, to the prejudice of the rights of the appellant. The defendant ¡Fargo, the principal on the note, but who offered no defence, was allowed against objection to give evidence as to personal transactions between himself and the intestate, the payee of the note. The evidence was given in support of the defence interposed by Howard, the surety. Under section 399 of the former Code such evidence from Fargo would have been inadmissible. (Genet v. Lawyer, 61 Barb., 221; Bennett v. Austin, 12 N. Y. S. [5 Hun], 536; Alexander v. Dutcher, 14 id. [7 id.], 439; Same Case in Ct. of App., 70 N. Y., 385.)

But a change has been effected by the Code of Civil Procedure in force at the time of the trial of tins action (see section 829). That section precludes a party from testifying “in his own behalf or interest, or in behalf of the party succeeding to his title or interest” in the case specified. But Mr. Fargo was not called or examined as a witness in his own behalf or interest, nor in behalf of a party succeeding to his title or interest; but was called and examined for and in behalf of Mr. Howard, his surety, on the note in suit; he was not, therefore, prevented from giving evidence in this case in behalf of Mr. Howard by the provisions of section 829 as to personal transactions between himself and Mr. Church, deceased.

The defendant Howard gave evidence in his own behalf, and it is insisted that he was allowed to testify to transactions between himself and the deceased. One question before the jury was, whether he had authorized or sanctioned the alteration of the note, and ho was allowed to testify, 1st. That he had no interest in the note, that he was merely surety for Fargo; and 2d. That he never paid or authorized the payment of any interest on the note. As to the statement that he had no interest in the note and signed it as surety only, the evidence seems quite unobjectionable, except as it might have been well excluded as •cumulative. It could not have worked any harm. It was, as appears, well proved by other unobjectionable evidence. The statement that he had never paid or authorized the payment of any interest on the note bore more or less upon the question of his having authorized the erasure, and it had a direct bearing upon the issue of the statute of limitations. True, the statement was of a negative character ; but it was a denial of the existence of a fact material to the issue raised by him, to which the deceased, if living, might speak and contradict him. Had this evidence been objected to, its admission would have been error. (Haughey v. Wright, 19 N. Y. S. [12 Hun], 179; Jacques v. Elmore, 14 id., id. [7 id.], 675-676.) But this evidence was not objected to; therefore error cannot be predicated upon its admission. Howard further testified that Fargo informed him that his (Howard’s) name had been stricken from the note and that he was no longer liable on it; that Mrs. Church said she would see that his name was taken off; that he relied upon this information and could thus have obtained security had he known of his liability. This evidence was objected to and should have been excluded. But as the case was given to the jury on the sole question relating to the erasure, this evidence was wholly irrelevant and unimportant. It had no bearing upon any question connected with the alteration of the note, hence was innoxious. Its admission, therefore, is insufficient as ground of substantial error.

Mr. and Mrs. Scranton testified that Mr. Church, the plaintiff and administrator, stated in their presence that he erased the gold clause in the note at Mrs. Church’s request This evidence was admitted against the objection that the declarations of the administrator were “ not evidence against the payee of the note.” The objection literally construed is without significance. The payee was dead. She had no rights to be protected against the proposed evidence;, hence the exception to the ruling raises no ground of error. But admitting that the exception goes to the admission of the administrator as evidence against the estate represented by him, which it does not in terms, and thus we are of the opinion that the objection was properly overruled. Mr. Church was the plaintiff in the action, as administrator, it is true; but it was his action, and for anything that appears to the contrary, it was prosecuted for his sole benefit. The admission, too, was as to his own acts, with the deceased through whom he took title to the note. He was a privy in representation, and as such was identified 'in interest. So it has been held that in such case his admissions are admissible as to the matters in issue in the action. It has been so held repeatedly in Massachusetts. (Atkins v. Sanger, 1 Pick., 192; Hill v. Buckminster, 5 id., 391; Faunce v. Gray, 21 id., 243.) So in New Hampshire it was held that the declarations of a party to the record were admissible in evidence against him, whether he be a trustee merely or the party in interest. (Tenney v. Evans, 14 N. H., 343.) In this State, while an admission by an executor or administrator is not evidence against the heir or devisee, nor by one executor or administrator against his co-executor or co-administrator, yet an admission by a sole executor or administrator, or by all of several, is admissible. (McIntire v. Morris, 14 Wend., 90, 97; The Cayuga Bank v. Bennett, 5 Hill, 236; Ellwood v. Deifendorf, 5 Barb., 398; Lane v. Doty, 4 Barb., 535.)

It is believed that an administrator or executor cannot create a debt against the estate he represents; and Judge Sutherland remarks in McIntire's Case, that there seems to be a distinction between creating a debt and acknowledging one really existing, a distinction (the learned judge adds) “very difficult in many cases to understand and practically to apply.” We conclude that there was no error in the admission of the evidence above referred to.

There still remains a question in the case as to the defence of the statute of limitations, which we are constrained to consider, but not without hesitation, as it was not raised or discussed by counsel on the argument before us. The defence was interposed and is in the record presented on the appeal. It is difficult to see why that defence was not fully established on the trial. The note in suit fell due January 18 — 21, 1872. The action was commenced February 22, 1878, more than six years thereafter. The payments of interest saved the right of action as to Mr. Fargo, who alone made those payments; but with these payments the defendant Howard had no connexion. No payment on the note was made by him or for him by his authority or sancti on. Payment by Mr. Fargo did not save the caso from the effect of the statute as to Howard. No promise to pay by Howard within six years before the commencement of the action was proved to have been made in writing, and none otherwise ; indeed, as we must infer from the verdict of the jury, to whom was left the question of the alleged oral promise sworn to by Mr. Church but denied by Mr. Howard. The alleged oral promise seems to have been put in evidence as bearing on the question of a ratifiaction by Howard of the alteration of the note. But if deemed proved, it would, as it seems, have amounted to nothing in law ; because if the alteration was made by the payee of the note or by her authority without Howard’s knowledge, sanction or approval at or before the time it was made, the note became and was void as to him ; and it would not be thereafter revived by a new oral promise to pay it.

The judgment must be affirmed, with costs.

Boardman, J., concurred.

Learned, P. J.,

dissenting :

The alteration of an instrument does not vitiate, unless it changes the effect. To cross a t or to dot an i does not vitiate. (Hunt v. Bennett, 6 Mass., 519; Brown v. Pinkham, 18 Pick. 172.) Then the question must be, did this erasure change the effect. The note was dated in 1870, and was for the payment, at two years, of $2,000, with interest semi-annually, “ in gold or its equivalent.” The italicized words were erased in 1873) after the note had become payable.

I. This was a promise to pay a sum of money, not to deliver a certain quantity of gold. (Kimpton v. Bronson, 45 Barb., 626; and Rodes v. Bronson, 34 N. Y., 649.) (The reversal of this last case in 7 Wallace, 229, on the ground that the legal tender act did not apply to existing contracts was itself reversed in the legal tender cases. [12 Wall., 459].)

II. Since the existence of two currencies, one of coin and the other of paper, it has been held that parties might specially contract for payment in coin, and might, on such a contract, recover coin. (Chrysler v. Renois, 43 N. Y., 209.)

III. But the parties in this case made no such contract. They contracted for payment not in gold, but in gold or its equivalent. They must have meant something by that alternative. They did not mean that the defendant might pay by delivering as much of any commodity, which he might choose, as the gold would bujr. For instance, the defendant could not have paid his interest by delivering as much pig iron as thirty-five dollars in gold would buy. That is not the meaning of “ equivalent ” in this place. But the word means the legal equivalent. And that is paper currency. Even silver coin was not a legal tender to this amount. (U. S. Revised Statutes, section 3586.) So that could not be a legal equivalent. But “ greenbacks ” were a legal tender to any amount, and Were a legal equivalent for the gold. This principle'was distinctly decided in the case of a bill of exchange having the same expression. (Jones v. Smith, 48 Barb., 552.)

What else can “equivalent” mean? It does not mean as many “ greenbacks ” as could be bought in market for the gold. For in Chrysler v. Renois, (ut supra), it was held that a debt, payable in gold, was not tobe collected in “ greenbacks ” equal to the market value of the gold. But “equivalent” refers to the other currency, conferred upon the country by Congress — the paper equivalent, declared to be just as good as gold for pay- ' ing debts.

If the parties had intended to make the interest payable exclusively in gold, they should have said so. Such a construction ought not to be given to a contract which expressly provides for payment in something else. The words, “in gold or its equivalent,” therefore authorized a payment either in gold or in “ greenbacks,” and the erasure did not change the legal effect.

IY. Again: the points submitted by both parties show that they construe these words to be applicable to the interest only, and not to the principal. And we may, therefore, safely assume that such is the true construction. If this be so, then, after the maturity of the note, this clause did not apply. After the maturity of the note, it drew only such interest as was given by statute. (Brewster v. Wakefield, 22 How. [U. S.], 118; Burnhisel v. Firman, 22 Wall., 170.) On this ground, therefore, the erasure made no change whatever in the future effect of the note. For the clause had ceased to b.e operative.

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

Judgment affirmed, with costs.


author: Bockes, J. :

text:
    SAMUEL DECKER, Respondent, v. CHARLES R. DECKER and others, Appellants.

      One working a farm on shares — cannot maintain trespass gncBre elanswm, fregit.

    One in possession of a farm under an agreement with, the owner to work it on shares, for a single crop, cannot maintain an action of trespass against another for breaking and entering the close.
    Appeal from a judgment of the County Court of Columbia county, in favor of the plaintiff, entered upon the verdict of a jury. The action was originally commenced in a Justice’s Court to recover damages for an alleged wrongful entry upon the plaintiff’s premises, and for taking and carrying away a hog.

      8. F. Avery and FTewTdrJc & Chase, for the appellants.

      F. F. Andrews, for the respondent.
   Bockes, J. :

This case was sent back for retrial on the former appeal on a very palpable point of error, not at all involving the merits of the case, as now presented on this appeal. The court had ruled in effect, that even if the hog was the property of the defendants, still having been taken by them from the plaintiff’s possession by force, the latter might recover against the former its value. This was holding in substance that the plaintiff, who was not the owner, might recover against the defendants, who were the owners, the value of the property, there being no question of pledge or bailment in the case. The judgment was reversed on this sole point. The case comes now before us on other and different questions.

The complaint is framed in a double aspect, to wit: Trespass quaere clausum fregit, and trespass de bonis. The proof showed that the plaintiff was in occupation of a farm as cropper, working the premises on shares for a single year, under an agreement with Simon Decker (the owner) made with his sons, the defendants, Charles R. and Jacob H. Decker, who acted for Simon (the owner) in that regard ; that in September, during the plaintiff’s occupation, which commenced the preceding April, the defendants came upon the premises and forcibly took and carried away one hog; this animal, the defendants Charles R. and Jacob H. Decker, claimed as their own property ; whereas, as the plaintiff’s counsel now insists in his points, and according to the testimony of the plaintiff himself, the plaintiff and defendant Charles H. were joint-owners and tenants-in-common of it. It also appeared that Simon, the owner of the farm, died in July during the plaintiff’s occupation, leaving the plaintiff’s wife and said Charles R. and Jacob H. Decker, his heirs-at-law. On the trial in the court below, it was hold and decided that the plaintiff was not entitled to recover for the hog ; but that he might recover for the forcible and unlawful entry upon the premises — that is, that he could not recover m trespass de bonis for the hog, but might recover for the forcible entry upon the real property.

In this ruling there was manifest error ; inasmuch as the plaintiff had no such qiossession of the premises as would entitle him to maintain trespass quaere clausum fregit against the defendants, the heirs-at-law of Simon, deceased, the owner, with whom the agreement with the plaintiff as cropper was made. It was decided in the early case of Bradish v. Schenck (8 John., 151) that the letting of land upon shares, if for a single crop, was no lease of the land, and that the owner alone must bring trespass for breaking the close. This subject has been much discussed in the courts of this ■ State since the decision above cited was made, but the rule there declared has been uniformly followed in subsequent cases, and has been quite recently re-affirmed in the Court of Appeals in Taylor v. Bradley (39 N. Y., 129); and in Harris v. Frink (49 id., 24); see, also, Putnam v. Wise (1 Hill, 243); Haywood v. Miller (3 id., 90); The People v. Fields (1 Lans., 222).

In Harris v. Frink (above cited), Judge Rapallo says: “An agreement to allow one to work land on shares for a single crop is no lease of the land, but the parties to such an agreement become tenants-in-eommon of the crop. They acquii’e a joint property in the growing crop, and may unite in an action of trespass de bonis for cutting and carrying it away; while in such a case the owner of the land alone can bring trespass for breaking the close.” The question as it would seem is not an open one; it ■ is conclusively settled by numerous decisions. There was in this case no reservation or agreement for the payment of rent or of any property in the nature of rent. The agreement as sworn to by the plaintiff will admit of no such construction. It was a simple agreement to work the farm on shares for one year; nor did the fact that the defendants entered willfully and forcibly give the plaintiff any claim for damages for such entry. If violently and forcibly made against the plaintiff’s resistance, an action or complaint for an assault and battery, or for a breach of the peace, might lie, but not trespass qucere clausum fregit for breaking the close, especially against the owner, nor was the plaintiff’s case at all improved, as regards a right in him to maintain trespass, because his wife was one of the heirs-at-law of Simon, deceased. On the decease of Simon intestate, his heirs at-law became seized as tenants-in-common of his real property by descent, and it is a well-settled rule that- one tenant-in-common cannot maintain an action against his co-tenant for trespass to the joint estate. Nor would the right of possession of the plaintiff’s wife, as co-tenant with the other heirs-at-law of her father, give to the plaintiff a possession on which he could base a cause of action in trespass. According to the evidence he remained and continued in occupation of the farm under the original agreement, made with Simon Decker, to work it on shares. In so far as the plaintiff’s wife had any legal title or right -of possession growing out of her father’s decease, for anything that appears, the title and right of possession remained in her. (Fiske v. Bailey, 51 N. Y., 150; Porter v. McGrath, 41 N. Y. Superior C. [9 Jones & Spencer], 84; Rowe v. Smith, 45 N. Y., 230.) As the case is presented on this appeal the plaintiff showed no right of action against the defendants for breaking and entering the close ; and it may be here remarked, that if the case shall remain the same on the facts as to the hog there can be no recovery by reason of the tailing of the animal by Charles R. Decker and those acting under him and by his authority; for if it be true, as the plaintiff’s counsel admits, that the animal was owned by the plaintiff and Charles, jointly, as tenants-in-common, then it is also well-settled that one tenant-in-common of personal property cannot have an action against his co-tenant for taking it. One has as much right to take and hold the property so owned as has the other. But it is better not to anticipate a case. The court below held, and correctly held, on the proof submitted, that the plaintiff could not recover for the hog. The conclusion above reached leads necessarily to the reversal of the judgment and order appealed from.

Judgment and order reversed ; new trial ordered, costs to abide the event.

Learned, P. J., and Boardman, J., concurred.

Judgment and order reversed; new trial granted, costs to abide event.


author: Bockes, J.:

text:
    ALBERT V. BENSEN, Respondent, v. JOHN S. PERRY and others, Appellants.

      Motion to set aside a satisfaetion of a judgment, on the ground of a mistake — the money received for the satisfaction, must be returned.

    Plaintiff recovered a judgment against defendant, and an execution thereon was issued by one of his attorneys and a levy made. Subsequently the defendant gave the requisite undertaking to stay execution, and appealed to the General Term, where the judgment was affirmed, and to the Court of Appeals, where the appeal was dismissed. Thereafter defendant paid to the plaintiff’s other attorney, who did not know of the issue of the execution, what he claimed was due on the judgment, and it was satisfied of record by him. Subsequently the plaintiff moved to have the satisfaction canceled and set aside to enable the sheriff to collect his poundage and fees, which was granted.

      Held, that it was error so to do, as there was no offer to return to defendant the amount he had paid to procure the satisfaction.

      Semble, that such an offer would not be necessary if the same relief were sought by action.
    Appeal from an order made at the Special Term. Judgment was rendered in this action April 24, 1877, for $13,083.33 damages and costs, in favor of plaintiff against the defendants. Execution was issued April 27, 1877. This execution was issued by plaintiff’s attorneys. It was drawn up and delivered to the sheriff by the junior member of the firm. The other members of the firm had no knowledge or information of the issuing of the execution. The sheriff made a levy on sufficient property' to satisfy the execution, the same day it was issued, but omitted to remove the property at the request of the defendant Perry, who said it was unnecessary, as they were going to appeal. No entry was made on the register of the issuing of the execution. On the 30th of April, 1877, the defendants appealed to the General Term, and gave security to stay execution. The judgment was affirmed at General Term, and the Court of Appeals dismissed an appeal therefrom.
    February 20, 1878, the defendants paid the original judgment, and those entered on the decisions of the appellate courts. One of the senior partners received the money and acknowledged satisfaction, and the judgments have been satisfied of record. The junior partner in May, 1877, left Albany for Colorado, on account of ill health and has not since been back. Neither of the other partners, at the time of receiving the money and acknowledging satisfaction, knew or had been informed that any execution had ever been issued. Had they known it they would not have acknowledged satisfaction, without requiring defendants to settle with the sheriff. The sheriff insisted on his poundage, and the defendants refused to pay any part of it. The plaintiff moved upon these facts, winch were not denied, to vacate the satisfaction in order to enable the sheriff to collect his poundage, and the motion was granted and the satisfaction vacated and set aside, unless defendant should within ten days settle the sheriff’s fees.

      Geo. W. Miller, for the appellants.
    Attorneys issuing executions are liable to the sheriff for his fees and they may receive payment of, and discharge judgments within two years from entry thereof, regardless of whether execution has been issued or not. (Adams v. Hopkins, 5 John., 252 ; JacJcson v. Anderson, 4 Wend., 479 ; Code, section 1260.) Sheriff’s fees are no part of a judgment; they are but incident to it, and if the judgment itself is satisfied or discharged, he must look to the plaintiff or his attorney for his fees. He cannot collect them of defendant by a sale of his property. (JacJcson v. Anderson, 4 Wend., 479; Crocker on Sheriffs, § 1162; OsterJiout v. Day, 9 John., 114, note a; Bolton v. Lawrence, 9 Wend., 435; Parsons v. Bowdin, 17 id., 14.) Even for fraud or collusion a satisfaction of judgment actually executed and entered cannot be set aside or canceled on motion, but the remedy is by action. (Domain v. Garth, 3 Hun, 214.)

      Matthew Hale, for the respondent.
    The satisfaction was given under a mistake of fact. The attorney who acknowledged and gave it did not know of the execution, but supposed none had ever issued. (Kelly v. Solari, 9 M. & W., 54; approved by Court of Appeals in 40 N. Y., 391; Bell v. Gardner, 4 M. & Gr., 11; Townsend v. Orowdy, 8 Com. B. [N. S.], 476, 492.) It is immaterial that plaintiff’s attorneys had the means of knowledge, or that they were negligent in keeping their register. (.Kingston BanJc v. Bllinge, 40 N. Y., 391.) Remedy by motion was proper. (Code of Civil Procedure, §§ 723, 724; 3 Wait’s Pr., 752; War dell v. Bden, 2 Johns. Cas., 258; 8. 01, 1 Johns., 539, etc. ; 8uydamy. Holden, Selden notes, 416; Bield v. Paulding, 3 Abbott,’ 139; Anderson v. NicJiolas, 4 Rob., 630.) The levy was sufficient as against defendants. (Crocker on Sheriffs, \ 435; Butler v. Maynard, 11 Wend., 548; Dresser v. Ainsworth, 9 Barb., 619; Bondy. Willett, 29 How., 47.)
   Bockes, J.:

According to the record the judgment is fully paid and satisfied. The certificate of its satisfaction has been duly entered. In this condition of the record there can be no sale of the judgment-debtor’s properly under it, even for sheriff’s fees, admitting an original levy by that officer under the execution. The fees of the sheriff ai;e but an incident of the judgment, and are gone on its payment and satisfaction, except in so far as the officer may claim them from the judgment-creditor or his attorney. (Jackson v. Anderson, 4 Wend., 474, 479; Ousterhout v. Day, 9 Johns., 114; Parsons v. Bowdoin, 17 Wend., 14; Campbell v. Cothran, 56 N. Y., 279.) But it is insisted in this case that the certificate of satisfaction was executed and delivered under a mistake of fact, in this, that the attorney for the judgment-creditor, when he gave the satisfaction piece, was not aware or had forgotten the fact that an execution had long before issued on the judgment and remained in the hands of the sheriff, so he moved to have the satisfaction vacated, and that the sheriff be permitted to collect his fees and poundage on the execution. It is not denied but that the judgment was fully paid, and it was not and is not proposed to disturb such payment, except as the sheriff may be allowed to levy and collect his fees. The payment and satisfaction of the judgment, except for the sheriff’s fees, are to stand and no return of the money paid is proposed. It is a general rule that where .some action or proceeding is sought to be vacated and annulled for fraud or mistake, the party taking action must put his opponent in his original position or offer so to do. This is not always necessary where relief is sought by action, although it will be imposed as a condition of granting r-elief. In actions, equity may be worked out ■through conditions and provisions to be inserted in the judgment ultimately awarded in the suit, hence an offer of restoration before bringing suit is not always necessary. (Hay v. Hay, 20 N. Y. S. C. [13 Hun], 315.) In the case now before us restoration is not proposed, nor is any provision made in that regard in the order, if indeed it would be appropriate to a proceeding by motion The money paid in satisfaction of the judgment is held and retained as payment of the .judgment; the judgment therefore stands fully paid. The order appealed from does not disturb or affect that payment, and even if the satisfaction piece be vacated and- set aside, still the - judgment remains paid. The money was delivered in payment, and was accepted and is .still held as payment, and notwithstanding this, the order granted at Special Term contemplates the collection of sheriff’s fees on an execution without any valid judgment for its support. In this view of the case the order was improperly granted.

The order appealed from must be reversed, with ten dollars, costs and disbursements for printing, and the motion for the relief sought at Special Term denied, with ten dollars costs.

Learned, P. J., and Boaedman, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.