author: Bkady, J.:

text:
    MARTHA D. SMITH, Respondent, v. GAMALIEL G. SMITH, Appellant, Impleaded with others.

      Malicious filing of Us pendens without probable cause — when actionable.

    The complaint herein alleged that the defendants 'wrongfully, maliciously and without reasonable or probable cause, filed a notice of lis pendens and complaint, affecting a lot of land, the property of the present plaintiff, charging that plaintiff was not the owner thereof, and that her title thereto was fraudulent as against the said defendants, who claimed to be creditors of her husband ; that the statements in the notice were made maliciously and with intent to injure the said lot and the building thereon, as well as the plaintiff, and to prevent her from selling the same; that the notice was subsequently canceled of record on the application of the said defendants ; that in consequence of the filing of the notice the plaintiff lost an opportunity to sell the said lot and. building.

      Held, that a demurrer interposed to the complaint, on the ground that it did not state a cause of action, was properly overruled.
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to tbe complaint.
    The complaint alleged that the plaintiff was the owner of a lot and building situated in the city of New York. “Thatthe said defendants, on the 10th day of July, 1873, through one G. S. P. Stillman, an attorney-at-law, and the attorney of the said defendants thereunto duly authorized by them, as this plaintiff is informed and believes, filed, or caused to be filed, in the office of the clerk of the city and county of New York, a notice of pendency of action 11X30)1, and referring to the comxilaint in a certain action then XDcnding in the Court of Common Pleas, for the city and county of New York, wherein the said defendants were xiarties xilaintiff, and this xilaintiff and others were made xiarties defendant, wherein and whereby it was, among other things, alleged in said notice that said action had been commenced, and was xiending to recover the interest of this defendant's husband, Alxiheus F. Smith, in the premises hereinbefore described, and which was the xii'oxierty of this xilaintiff, and the comxilaint in which action, which was filed in the office of the clerk of said court, and was the same comxilaint referred to in said notice, alleged and declared the said xiremises to be the xu'oxierty of her said husband, Alxiheus F. Smith, and that her title to the same was fraudulent as against the said defendants, who claimed to be creditors of her said husband.
    “That the said defendants, through their said attorney, well-knowing the xiremises, and maliciously and without reasonable or probable cause, continuing to cause it to be susxiected that this Xilaintiff did not own said lot of land, and the building thereon, and that she was a fraudulent owner and holder thereof, and to prevent this xilaintiff from effecting a sale thereof, if she so desired, wrongfully caused said notice to be so filed as aforesaid, giving notice of the matters therein, and in the said comxilaint set forth to all the world.
    “That the statements and allegations contained in said notice, so filed as aforesaid, and in the comxilaint to which the same referred, charging this xilaintiff with not being the owner of said lot of land, and the building thereon, and that her ownership) of the same was fraudulent and void as against the creditors of her husband, was and are wholly false, .and were made maliciously and with the intent to injure the said lot of land and building, as well as this Xilaintiff, and to prevent her from selling the same.
    “ That thereafter, and on'the 27th day of June, 1874, the said notice of xiendency of action was, by order of the said Court of Common Pleas, canceled of record on the axi]ilication of the said defendants, through their said attorney, as she is informed and believes, whereby the same was wholly ended.
    “That in or about the month of August, 1873, and after the filing, as aforesaid, of the said notice, and before the same was canceled, this plaintiff bad a bona fide offer, and conld have sold the said lot of land, and the building thereon, together with the furniture therein contained, for the sum of $130,000, to one A. B. Band, but that in consequence of said notice, and the filing thereof, and the matters so set forth in said complaint so referred to, the said A. B. Band refused to purchase the said lot and building, and this plaintiff was prevented from effecting a sale thereof.
    ‘ ‘ That by reason of the premises, and of the wrongful and malicious act of the said defendants in so filing said notice, this plaintiff lost the sale of the said lot and building erected thereon, and in consequence thereof suffered damage in the sum of $50,000.
    1 ‘ Wherefore said plaintiff prays judgment against said defendants for the said sum of $50,000, besides the costs and disbursements of this action.

      James Thompson, for the appellant.
    This action cannot be sustained on the ground of slander of title, because the communication is absolutely privileged. (Addison on Torts, § 1092 [Wood’s ed.] ; Marsh v. Ellsworth, 50 N. Y., 309, 311.) An action for damages dor the malicious prosecution of a civil action is not maintainable. (Addison on Torts, § 863 ; Baville v. Roberts, 1 Ld. Baym., 380 ; Purton v. Honnor, 1 Bos. & Pul., 205 ; Ootterell v. Jones, 11 C. B., 726; Polls v. Imlay, 1 South [N. J.], 330.

      B. F. Carpenter, for the respondent.
    This is an action orí the case. It cannot be strictly called an action for malicious prosecution, or for slander of title, but rather an action on the case, for abuse of process, and having some of the elements of both of the former kinds of action. Bebinger v. Sweet, 1 Abb. [N. C.], 263; Closson v. Staples, 42 Vermont, 217; Whipple v. Fuller,11 (Jonn., 581; Bumpy. Betts, 19 Wend., 421; Woody. Purnell, 17 Am. L. Beg. [N. 8.], 689; Churchill v. Sieger, 3 Ellis & Black. Bep., pp. 929, 937; B. S. [6th ed.], 969, § 3.) This action is analogous to an action for wrongfully suing out an attachment against property in a civil action. The party may proceed with his action, without attachment, or lis pendens ; these ai’e not necessary to the success of the action; but if he wrongfully issues either, or abuses the process of the court, whereby a defendant has sustained damages, he is liable. (Bump v. Betts, 19 Wend., 421; Bebinger v. Sweet, 1 Abb. [N. C.], 263 Churchill v. Sieger, 3 Ellis & Blackburn’s Bepts., 929, 937.) An action on the case lies whenever injury is effected by regular process of a court of competent jurisdiction. (Chitty’s Pleadings, vol. 1, p. 133, and cases cited in note ; Swanv. Sadlemier, 8 Wend., 676 ; Brown v. Feeter, 7 id., 301; Churchill v. Sieger, 3 Ellis & Blackburn’s Bepts., 929, 937.)

       Decided December Term, 1879.

   Bkady, J.:

This action was instituted to recover damages sustained by the plaintiff, by reason of the defendants having -wrongfully, maliciously, and without reasonable or probable cause, filed a notice of Us pendens affecting the property of the plaintiff, described in the complaint, charging that the plaintiff was not the owner of the property, and that her title thereto was fraudulent against the defendants, who claimed to be creditors of her husband. Anri it is alleged, in the complaint, that the defendants, through their attorney, well-knowing the premises, maliciously and without reasonable or probable cause, continuing to cause it to be suspected that the plaintiff did not own the said lot of land, and building thereon, and that she was a fraudulent owner thereof, and to prevent her from effecting a sale thereof, if she should so desire, wrongfully caused the notice mentioned to be filed, giving notice of the matters therein, and in the complaint set forth to all the world. And further, that the statements and allegations in the notice were false, and were made maliciously and with intent to injure the said lot of land and building, as well as her, and to pre* vent her from selling the same ; and further, that the notice was canceled of record, on the application of the defendants, through their attorney ; and further, that before the same was canceled she had a bona fide offer and could have sold the lot of land, and the building thereon, together with the furniture therein contained, for a large sum of money, but that in consequence of said notice, and the filing thereof, and the matters set forth in the complaint referred to, the purchaser, ready to take, refused to purchase the property, and that she was prevented from selling the same.

By the demurrer all these allegations were admitted to be true, and the conclusion to be drawn from the pleadings is, that the notice of Us pendens was maliciously, and without probable cause, filed, and for the purpose of preventing a sale of the property described.

Assuming these facts to be true, the process of the court was invoked and used for an unlawful purpose, which was to prevent the sale of the property, by a malicious scheme originating in an unlawful design unsustained by any existing fact. It is not deemed necessary, for the purpose of this appeal, to consider a class of cases growing out of attachments and processes of arrest to recover damages in consequence of the issuance of either, or both. Although it may be said, that they bear some analogy to the case in hand, yet there is a wide distinction between them, because of the effect of a notice of- lis pendens and the probable embarrassment created by it. Under the statute (3 H. S. [6th ed.], 486), the filing of the notice is constructive notice to a purchaser, or incumbrancer, of the claim, and he takes at his peril.

The effect of the Us pendens is therefore notice to the world of an existing claim which was in this instance that the plaintiff was not the owner of the property, and it was resorted to not from any supposed right in the defendants to assail the plaintiff’s ownership, but on mere malice and for an evil purpose. It would be extraordinary indeed if the plaintiff, under such circumstances, had no remedy, and that a proceeding created for a wise purpose and for good ends could be used by a suitor with malice aforethought, without incurring any personal responsibility.

For these reasons, in addition to.those assigned by the learned justice in the court below, it is thought the judgment appealed from should be affirmed.

Davis, P. J., concurred.

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

Judgment affirmed.

       The following; opinion was delivered by Lawrence, J., at Special Term :
      The demurrer to the complaint should, in my opinion, be overruled. As I view it, this is an action brought for the recovery of damages resulting from the wrongful and malicious act of the defendants, in wrongfully using the process of the court, and thereby preventing the plaintiff from selling her property. In Closson v. Staples (42 Vermont, 217), Wilson, J., delivering the opinion of the court, says : “ The early English cases show very clearly that before the statutes entitling defendants to costs existed, they had a remedy at common law for injuries sustained by reason of suits which were malicious and without probable cause. It would seem, however, from more recent decisions, that the present English rule, which restricts or limits the right of action for "maliciously prosecuting civil suits without probable cause, stands mainly upon the ground that the costs, which the statute provides that the successful defendant shall recover, are an adequate compensation for the damages he sustains; but, under their rule, it does not appear that the right of action is restricted to those cases where the process is by attachment.”
      After stating the mode of commencing suits under the statutes of Vermont, the learned judge proceeds to say: “ The principle of the common law, recognized by the English courts before the statutes, allowing costs to defendants, and which gave a remedy for injuries sustained, by reason of suits which were malicious and without probable cause, is and ought to be operative still, and we think it affords a remedy in all such cases where the taxation of costs is not an adequate compensation for the damage sustained.” (Page 219.)
      And again : “But where the damages sustained by 'the defendant, in defending a suit maliciously prosecuted, without reasonable or probable cause, exceed the costs obtained by him, he has, and of right should have, a remedy by action on the case.” (Page 221.)
      The opinion of the Supreme Court of Vermont, from which I have so freely quoted, ably discusses the points principally relied upon in the elaborate brief of the learned counsel for the defendants in this action, and the conclusion reached by the court seems to me to be in accordance with justice and legal principles. See also Whipple v. Fuller (11 Conn., 582); Bebinger v. Sweet (1 Abb. New Cases, 263).
      This case, as is contended by the plaintiff’s counsel, is analogous to the case of wrongfully sueing out an attachment against property in a civil action, and in such a case an action lies. (Bump v. Betts, 19 Wend., 421.)
      The defendants, by demurring to the complaint, have admitted that the alleged wrongful acts of the defendants were done maliciously and without probable cause, as well as the allegation that the Us pendens, and the proceedings in regard thereto, were ended.
      I do not regard the other objections to the complaint as well taken. The demurrer is therefore overruled, with leave to the defendants to answer over within twenty days, on payment of costs.


source: Caselaw Access Project

author: per Curiam.

license: Public Domain

text:
    JULIA DE COURCY, Respondent, v. HENRY STEWART, Appellant

      Action will not lie in this State for trespass committed on lands in another State.

    Appeal from a judgment entered upon an order overruling a demurrer, interposed to tbe complaint on the ground that the court had no jurisdiction of the action, and that the complaint did not state facts sufficient to constitute a cause of action.
    The complaint, after alleging ownership and possession in the plaintiff of a farm at Westwood, in Bergen county, in the State of New Jersey, alleged that on or about the 4th of October, 1877, the defendant “wrongfully, unlawfully and maliciously trespassed •upon, said farm, and took forcible possession thereof, without even a color of right, and has continued in possession thereof until the present time,” and demanded judgment for the damages caused by these wrongful acts.
    The court, at General Term, said: “This is nothing but an action of trespass quaere clausum fregit, committed in another State, beyond the jurisdiction of our courts. It is well-settled that such an action cannot be.maintained in this State. (Hurd v. Miller, 2 Hilt-., 542; Watts v. Kinney, 23 Wend., 484; 8. C., affirmed, 6 Hill, 82.)
    “ The cases cited by the court below, which are supposed to hold the contrary view, are actions either to enforce specific performance of contracts, or for damages to lands situated in this State arising from nuisances located across the boundary line of the State, or for fraudulent conspiracies affecting lands in this State.”

      Charles Howard Williams, for the appellant. Samuel G. Courtney, for the respondent.
   Opinion

per Curiam.

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

Judment reversed, and judgment ordered on tbe demurrer for tbe defendant, with costs.


author: Barrett, J.

text:
    JAMES B. IRWIN, Respondent, v. WILLIAM T. JUDD, Appellnat.

      Undei'taking given on procuring an orden' of arrest — %>owen' of the court to allow an amiendment of defects thei'ein.

    Appeal from an order made at Special Term, denying a motion to vacate an order of arrest and allowing tbe plamtiff to amend tbe undertaking given when it was granted.
    Tbe undertaking was defective in not being joint and several as required by section 812 of the Code of Civil Procedure, and in not providing that tbe plaintiff would pay all costs which might be awarded to tbe defendant, and all damages which be might sustain by reason of tbe arrest, if tbe defendant recovered judgment, or if it was finally decided that tbe plaintiff was not entitled to the order oí arrest, as required by section 559 of tbe said Code, as amended in 1879.
    Tbe court, at General Term, said: “ Tbe power to amend an undertaking, defective even in matter of substance, is conferred by section 730 of tbe Code of Civil Procedure. This is obvious when we read this section in connection with section 729 and consider that, under the latter, an amendment of an undertaking defective in matter not of substance is unnecessary. Sections 723 and 724 are also very broad in permitting amendments to cure mistakes, omissions, defects and irregularities. We think tbe amendment was properly allowed.”

      James L. Bishop, for tbe appellant. G. Irvine Whitehead, for tbe respondent.
   Opinion by

Barrett, J.

Present — Davis, P. J., Brady and Barrett, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    WILLIAM M. NEWMAN, Appellant and Respondent, v. GEORGE H. GODDARD, Appellant and Respondent.

      Motion for a new trial on a case and exceptions — within what time it must he made — Action ex delicto — not hawed by a discharge in bankruptcy.

    Appeal by tbe defendant from so much of an order as denies a motion made by the defendant for a new trial made upon a case and exceptions, and by the plaintiff from so much of the order as overruled the plaintiff’s preliminary objections to the hearing of the motion.
    The action was brought to recover damages for the forcible expulsion of the plaintiff from his place of business in the city of Camden, Arkansas, in May, 1861, by the defendant and other persons who were associated with him. The case has already been before the General Term and is reported in 3 Hun, at page 70.
    Judgment in favor of the plaintiff was entered, on the second trial, on December 18, 1875, and notice thereof was served on the defendant’s attorney on December 20, 1875.
    On April 10, 1877, a notice of a motion for a new trial on a case and exceptions was served. The plaintiff objected to the hearing of the motion, on the ground that the motion was served too late.
    The court,’ at General Term, said : “ It is very doubtful whether a motion for a new trial upon a case and exceptions can be made after the time to appeal from the judgment has expired.
    “A different question arises where the motion is upon the ground of newly discovered evidence. Such evidence may be discovered after as well as before judgment, and the propriety of not limiting the right to the period between trial and appeal from judgment is apparent. But it is not necessary to pass definitely upon this question, as we are of opinion that the motion itself was properly denied.
    “ The main question is as to the effect of the bankrupt discharge. We do not think that the present cause of action was affected thereby. This is a claim for unliquidated damages for a wanton trespass. The seizure and conversion of the plaintiff’s property was but an incident. The action was entirely ex delicto. The wrong and outrage'perpetrated by the defendant was the gist of the complaint.

      “ There was but one indivisible cause of action. For that reason the plaintiff could not prove his damages for the conversion in the bankrupt court, and proceed at law for the trespass.
    “ His claim for actual, compensatory and punitive damages for the wrong inflicted upon his person and rights as a citizen, for the indignity put upon him, and for the outrage to his feelings, was inseparably connected with the attendant destruction of his property interests.”

      Id. J. Beudder, for the appellant. Joseph Larocque, for the respondent.
   Opinion

per Curiam.

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

The order appealed from by the defendant affirmed, with costs. So much of the order as is appealed from by the plaintiff affirmed, without costs.


text:
    JOHN J. O’BRIEN, Respondent, v. DIEDERICH HASHAGEN, Appellant.

      Sheriff’s sale — purchase of premises by the judgment creditor — when afailv/re of the sheriff to deliver a certificate of sale does not authmize an m-dei’ vacating the sale.

    Appeal from an order made at Special Term, vacating a sheriff’s sale of land under an execution.
    The respondent, on a judgment against the appellant, issued an execution and caused the sheriff to sell by virtue thereof certain premises. The sale took place on the 20th of September, 1879, and the respondent, the plaintiff in the execution, purchased the property at the sale. The sheriff did not execute or deliver to him, as such purchaser, any certificate of such sale, nor file such, certificate with the county clerk within ten clays after the sale. For that reason the respondent moved to set aside the sale. The court below granted the motion, charging the defendant in the execution with costs.
    The court, at. General Term, said : “It does not appear that the respondent, who had bidden off the property on his own execution, ever called on the sheriff for a certificate, or made any application of the sum paid upon his execution or judgment. Being plaintiff in the execution, he was entitled to the certificate without the payment of anything Beyond the sheriff’s fees and expenses. Athough section 1438 of the Code of Civil Procedure is peremptory'in its terms, it is nevertheless, so far as affects the rights of purchasers at a sale, to be regarded as merely directory. Its language is satisfied by holding that it imposes a strict duty upon the sheriff, a failure to perform which would subject him to any costs or expenses necessary to compel his performance. His neglect would not invalidate the proceedings between the parties, nor, as we think, prejudice the rights of the purchaser. The plaintiff in the execution was not and could not be injured by such neglect. He was entitled to an order of the court, or to a mandamus against the sheriff, to compel his performance of this duty; but he was not entitled, simply on the ground of the sheriff’s neglect, to have his purchase of the defendant’s premises set aside, and especially not at the defendant’s expense.”

      James Bilger, for the appellant. John J. Townsend and James StHeeman, for the respondent.
   Opinion

per Curiam.

Present — Davis, P. J., Bbady and Bakbett, JJ.

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


author: Talcott, P. J.:

text:
    SAMUEL D. RHODES, Respondent, v. JOHN W. BRANDT, Appellant.

      When a removal of a body from the grave is not an offense — 3 JR. &, 6 Bd., 965— action, for malicious prosecution — when questions of probable cause and malice are for the ¡jury.

    The defendant brought an action against one Beelard, to recover for services rendered by him, as a physician, in treating a child of Beelard’s for a fracture of the thigh-bone, in which action Beelard set up malpractice on the part of the defendant as a defense. During the pendency of the action the child died and was buried. Subsequently the father, acting under the advice of his counsel, directed and allowed the plaintiff, a physician, to cause the body of the child to be exhumed, and a portion of the thighbone to bé removed, in order that it might be used in evidence on the trial of the question of malpractice. After the bone was removed the body was returned to the grave. The defendant having caused the plaintiff to be arrested for removing the body from the grave, the latter brought this action to recover damages for a malicious prosecution.
    Held, that the plaintiff had not removed the body from the grave “for the purpose of dissection or from mere wantonness,” as these terms were used in the statute (3 R. S., 6 Ed., 965), for a violation of which he had been arrested, nor had he committed any offense against public decency or the spirit, of the statute.
    That the questions of probable cause and malice were, under the circumstances of this case, properly left to the jury, and that a verdict in favor of the plaintiff would not be disturbed.

      Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.

      J. Welling, for the appellant.

      L. M. Norton, for the respondent.
   Talcott, P. J.:

This is a motion for a new trial after a verdict for the plaintiff at the "Wayne Circuit, and the exceptions ordered to be heard at the General Term in the first instance.

The action is for malicious prosecution.

The parties are two physicians living and practicing their profession in the county of Wayne. As near as the facts can be ascertained from the bill of exceptions, which seems to be a copy of the stenographer’s notes, without explanations or any consecutive or chronological statement of the facts, it seems that Elizabeth, the daughter of Jacob Beelard, who resided near the village of Ontario, in the county of Wayne, had her thigh-bone broken when about one year and four months old, and was afterwards sick and lingered about sixteen months, when she died, either from the result of the fracture, or from some supervening cause.

Jacob Beelard, the father of Elizabeth, had employed Dr. Brandt, the defendant, to set the fractured limb of Elizabeth, and afterwards and before the death of Elizabeth, Dr. Brandt had commenced an action against Beelard to recover for his professional services in relation to the case, before a justice of the peace, in which action it seems that Beelard had alleged as a defense the malpractice of Dr. Brandt respecting the cure of the fracture, and while this suit was pending, the child, Elizabeth, died. Beelard was advised by his counsel, in that case, to have so much of the fractured bone as was necessary removed from the body of the child, to be used in evidence on the trial of the question of malpractice, and Beelard accordingly engaged Dr. Rhodes, the plaintiff in this action, to remove that portion of the bone from the body of the child. Dr. Rhodes, from some cause, did not arrive at Beelard’s house until after the body of the child had been buried, when Beelard engaged him to exhume the body and remove that portion of the bone. To this Beelard consented', and with others, including a son of Beelard some eighteen or nineteen years old, went to the place of burial, and having apprised the person who had charge of the cemetery in which the burial took place, and with his consent, proceeded to remove the body from the grave for the purpose aforesaid, and took out a small portion of the fractured bone and returned the body to the grave. The defendant having learned these facts afterwards, caused to be instituted two or three prosecutions against Dr. Rhodes by complaints before magistrates, on which he was arrested and. some examination had, which resulted in the discharge of Dr. Rhodes. This action is brought, charging as to two of these prosecutions that they were malicious. The action was tried by a jury, which rendered a verdict for fifty dollars damages, and the defendant now moves for a new trial on exceptions. The statute under which the complaints against Dr. Rhodes were instituted is as follows, viz.: “ Every person who shall remove the dead body of any human being from the grave, or other place of interment, for the purpose of selling the same, or for the purpose of dissection, or from mere wantonness, upon conviction shall be punished by imprisonment in a State’s prison,” &c. (3 Rev. Stat., 6th Ed., 965.)

This is found under a title in the Revised Statutes, which is entitled “ Of offenses against public decency; of malicious mischief, and other crimes not before enumerated.” Dissection is defined by lexicographers, as “ The act-of dissecting or cutting in pieces an animal or vegetable for the purpose of ascertaining the structure and uses of its parts; anatomy.”

The word dissection, as used in the statute quoted, is to be understood as it is ordinarily used. It is manifest in this case that the body was not removed from the grave for the purpose of disseeUon, as the word is ordinarily understood, or from mere wantonness, and constituted no offense against public decency, and that no violation of the spirit of the statute was committed or contemplated. Probable cause is a reasonable suspicion, supported by circumstances, sufficient to warrant a cautious person in the belief that the person accused is guilty of the offense charged. Where the facts are doubtful, or where they depend upon uncertain or conflicting evidence, the question of probable cause is a mixed one of law and fact, to be determined by a jury under the instruction of the court.

Actual- malice is not enough to sustain an action for malicious prosecution, but the plaintiff must also prove the want of probable cause. Tet the questions of probable cause and actual malice were, we think, in this case, under all the circumstances, questions for the jury, and therefore the trial court properly refused to nonsuit the plaintiff. The charge of the -court recognized the principles of law applicable to such actions as-settled; but one objection is made to it, namely, to that portion of the charge of the trial judge wherein he stated as follows: “ In this case the parents had the right to consent that the child should be exhumed, and this process of taking out a portion of the bone should be gone through with. It-was no offense, in fact, when these five men took that bone out under the' circumstances they did, as the father requested them to.” The counsel for the appellant challenges this instruction, and undertakes to show that the father had no control of the buried body of the child, and had no right to authorize its disinterment. Having expressed our conviction that no offense against the statute was committed in this case, even if the counsel for the appellant is correct in his reasoning as to the authority of the parent, the instruction excepted to was immaterial. It was merely saying to the jury in effect, that the act as proved, under all the circumstances, constituted no offense. The jury were also fairly informed by the judge that it was not sufficient for the plaintiff to show he was innocent of the offense with which he was charged, but that he must also show not only malice, but a want of probable cause for the accusatiou.

We do not think that substantial justice requires that a new trial be ordered in this case. (Code of Civ. Pro., § 1003.)

Smith and Hardin, JJ., concurred.

New trial denied, and judgment ordered, for the plaintiff on the verdict.


text:
    GEORGE McCULLOCH and FRANCIS McCULLOCH, Appellants, v. QUINCY W. WELLINGTON, Respondent.

      Estoppel in pais — what facts must concur to create it — when owner not estopped from claiming land hy delay in asserting title.

    This was an action of ejectment brought by the plaintiffs to recover certain lands in Corning, to which they claimed title by descent from their father, who died in 1831. The defendants, who had purchased the lands in 1870 and-1871, and made valuable improvements thereon, claimed title through-various mesne conveyances, from the purchaser at a sale made, in 1833, in pursuance of an order of the surrogate, directing the land to be sold for the payment of the debts of the plaintiffs’ father, upon the application of his widow and administratrix. Owing to defects in the proceedings had before the surrogate (which defects appeared upon the face of the records), no title was acquired by the purchaser at such sale.
    The plaintiff George, who was four years old at the time of the sale, removed from Corning when he was sixteen years old, went to sea, and remained away for about twenty years, returning to Corning in the fall of 1865, and remaining there until May, 1866, when he went to Michigan, and there resided until after the commencement of this action. His sister, who was about one year and a half old at the time of the sale, had always resided at Corning, not far from the land in dispute. There was no evidence to show that the plaintiffs knew of their interest in the premises, or of the defect in the proceedings before the surrogate, prior to the commencement of this action.
    Neither the defendant nor those from whom he claimed had acquired title to the premises by adverse possession.
    Held, that the plaintiffs were not estopped from claiming the lands, either by reason of their long delay in asserting their title, nor by the fact that the defendant had, relying upon the validity of his title, expended large sums of money in improving the property.
    Appeal from a judgment in.favor of the.defendant, entered upon the report of a referee.

      Wm. Rumsey, for the appellant.
    To establish an estoppel in such a case, it must be shown that the party sought to be estopped has been silent when he ought to have spoken. (Bigelow on Estoppel [2d ed.], 452, et seq.; Taylor v. Ely, 25 Oonn., 250, 260; 2 Smith Lead. Cas., 138; Herman on Estoppel, §§ 409, 419, 421.) That he acted or made the representation with knowledge of the fact, or that he kept silence with such knowledge. (Whitaker v. Williams, 20 Conn., 88, 104; Bigelow on Estoppel, 437, 467; Herman on Estoppel, § 414; Finnegan v. Oa/rraher, 47 N. Y., 493, 500; Bank of Hindustan v. Alison, L. B. 6 C. P., 54, 222.) That the party setting up the estoppel was also, ignorant of the facts, or of any convenient or available means of acquiring knowledge thereof. (Brant v. Vg. C. <& I. Go., 93 H. S. 326; S. C., 16 Am. L. Beg. N. S., 403; Bigelow on Estoppel, 437; Galkins v. B. ds JEl. Gaslight Go., 1 T. & G., 541, 546-7; Herman on Estoppel, §§ 410, 414.) That the party setting up the estoppel has changed his situation in reliance on the conduct of the other party. (Bigelow on Estoppel, 437, 492; Herman on Estoppel, §§ 415, 425; Mdlloney v. Horan, 49 N. Y., Ill, 115; Tri/mhle v. Strother, 25 Ohio St., 378; 2 Smith Lead. Gas., 739.) That the act done was such, and so done as to be calculated to mislead the party relying on it. (Herman on Estoppel, § 418; Continental National Bank v. National Bank of Gommowwealih, 50 N. Y., 575 ; McAfferty v. Gonovem, 7 Ohio St., 99; 2 Smith Lead. Gas., 739, 740; Gore v. White, 20 Wise., 448.' Ignorance as to the state of the title cannot be presumed to raise an estoppel where the defect is apparent on the record, and where each party has the same means of ascertaining the truth. (1 Smith Lead. Gas., 833 [11th ed.], marg., 617, and cases cited; Hale v. Simmer, 117 Mass., 474; Hill v. Fpley, 31 Penn. St., 331; Boggs v. Merced, Miming Go., 14 Cal., 279.) The plaintiffs had no knowledge of the defect. To estop one who simply stands still, doing nothing, there must be knowledge of his rights. (Hensham v. Bissel, 18 Wall., 255, 271; Whitaker v. Williams, 20 Conn., 98, 103-4; Fa/y v. Valentine, 12 Pick., 40, 46; Bragg v. B. ds W. B. B. Go., 9 AL, 54, 61; Preston v. Mamn, 25 Conn., 118, 129; Gove v. White, 20 Wise., 447; Biddle Boggs v. Merced Miming Co., 14 Cal., 279; Wood v. Wilson, 37 Penn. St., 379; Junction B. B. Go. v. Hampolxl, 19 Ind., 347; Herman on Estoppel, §§ 435, 442; 1 Story Eq., § 391.

      George T. Spencer, for the respondent.
    The plaintiffs having stood by, one of them twenty-six and the other twenty-three years, after becoming of age, and seen sales and transfers of parts of this property, and expensive improvements made thereon, and a general course of dealing with the property on the faith of the title derived through the sale made hy order of the surrogate, are estopped from now claiming it. (Hig-mbotham v. Bennett, 5 Johns. Ch., 184; Wendell v. Van Rensselaer, 1 Johns.* Oh., 344, 353; Frnill v. Roberts, 3 Lans., 14, 25 ; 50 N. Y., 222; Dougrey v. Topping, 4 Paige, 94 ; Thompson v. Blanchard, 4 Com., 303 ; Wood v. Seely, 32 N. Y., 105; Hogan v. Gity of Brooklyn, 52 N. Y., 282; Brown v. Bowen, 30 N. Y., 679; Evans v. Snyder, 64 M. O., 516; Manufacturers & Traders’ Bank v. Haza/rd, 30 N. Y., 226, 230; Brookman v. Metcalf, 4 Robt., 568; Continental Bank v. National Bank, <&c., 50 N. Y., 575; Blavr v. Waite, 69 N. Y., 113 ; Stone v. Ba/rker, 6 Johns. Oh., 166 ; Tilton v. Nelson, 27 Barb., 595.) The negligence of a party in ascertaining his legal rights, where he has the opportunity, is equally effectual to estop him from asserting them against a party who has been misled thereby, as silence with regard to them with knowledge. (Galhoun v. Richardson, 30 Conn., 210 ; Cady v. Owen, 34 Yt., 598 ; Gregg v. Wills, 10 Ad. & El., 90 ; Wilder v. St. Pa/ul, 12 Minn., 192 ; Hensham v. Bissdl, 18 Wall., 255, 271.) Nor is it any answer to say that the defendant might have obtained the necessary information as to defects of title by an inspection of the record. (Maitoon v. Young, 45 N. Y., 696, 702.) Ignorance of fact will in some cases not prevent the operation of an estoppel. (Kingsley v. Vernon, 4 Sandf., 361; Petrie v. Fleeter, 21 Wend., 172.)
   Talcott, P. J.:

This is an appeal from a judgment for the defendant entered on the report of a referee in an action of ejectment.

The history of the plaintiffs’ claim is as follows:

In 1803 George McCulloch became the owner of a tract of land containing about ninety-eight and a half acres, situate in what is now the village of Corning, in Steuben county. He occupied this tract with other lands, in all about two hundred acres, until his death, which happened in 1826. He left him surviving five children, of whom George McCulloch, the father of the plaintiffs, was one. The father of the plaintiffs died in 1831, and in an action of partition brought in the Steuben Common Pleas, judgment was entered, June 20,1832, setting off to the plaintiffs, in right of their father as one of the heirs at law of his father, the original grantee, sixty-four acres, parcel of the ninety-eight acres.

The action is brought to recover lots known as 7, 8 and 15, situated on that tract of sixty-four acres.,

The defendant claims title through sundry mesne conveyances, from a sale and conveyance of the said sixty-four acres, as a part of the real estate of the said George McCulloch, the father of the plaintiffs, made for the payment of his debts in 1833, by Sophia McCulloch, his widow and administratrix, by order of the Surrogate of Steuben county. The proceedings for a sale of the property, under the order of the surrogate, were objected to on various grounds, claimed to affect the jurisdiction of the surrogate.

The referee finds as a conclusion of law: “ That said surrogate’s court acquired jurisdiction of the subject-matter of the said proceedings, to mortgage, lease or sell the real estate of said George McCulloch, deceased; for the payment of his debts, but not of the persons of said plaintiffs, . . . and that said Rufus Gorton, and those claiming under him, acquired no title under the conveyance by said administratrix to him, based on those proceedings.”

Rufus Gorton was the purchaser at the said administratrix’s sale, and the defendant Wellington claims under Gorton by virtue of that purchase and sale. As there appears to have been no objection or exception taken by the defendant to the finding and conclusion of law in that behalf, it is unnecessary to examine more particularly the grounds upon which such findings and conclusions of law were based.

The referee also found as a conclusion of law: “ That the defendant has not acquired any right to hold the possession of the premises described in the complaint or any of them, by adverse possession.”

But the referee also finds: “ That the said plaintiffs, by reason of the facts proved on the trial of this action, and heretofore found, are estopped from denying the title of the said Rufus Gorton, and of said defendant, derived from him, to said pieces or parcels of land in the complaint in this action described, or any or either of' them, or any part thereof, and from claiming the possession thereof, or any part thereof, or any interest therein.”

And upon this ground the referee directed a judgment for the defendant in the action, and the question thus presented is, as we understand it, the only question open for our consideration.

The respective ages of the two plaintiffs at the time of the said sale under the surrogate’s order, were as follows: The plaintiff George was of the age of four years, and the plaintiff Francis E. was of the age of one year and a half, and they were the only children and heirs at law of their father.

The plaintiff George removed from Corning when he was fifteen or sixteen years old, and went to sea,- and was absent about twenty years. He then came to Corning, and remained thei’e some eight months, when he removed to Michigan, where he continued to reside till after the commencement of the suit. Francis McCulloch, the other plaintiff, became twenty-one years of age in June, 1852, and during most of the time afterwards lived within one or two miles of the property in question.

The referee has held that the plaintiffs are estopped to set up a claim of title to the land in question, because during the time since the sale by the administratrix, streets and lots have been surveyed and laid out, embracing .the land included in the sixty-four acres, and upon the ground that the premises have been held and claimed by Bufos Gorton, the purchaser at said sale, and those claiming under him, from the time of the conveyance to . him, under the title assumed to have been so acquired, and that sundry erections have been made on other parts of said tract, under the said title; and that the defendant toot a conveyance and possession of said lots, numbers 7 and 8, in the complaint mentioned, on October 22, 1870, and of lots 1 and 15, in said complaint mentioned, on May 3, 1871, and during the latter year built a large and valuable house and barn on said lots, which, with other improvements put thereon, have cost some $25,000. Belying, in the making of such improvements and expenditures, upon the title to said lots of the Corning Company ” which had been acquired and held by him, and not knowing or having any information of what are now claimed as defects in said title:

In other words, the referee has held that the plaintiffs have forfeited their title to the estate, not by reason of any statute of limitations nor adverse possession, not by reason of any specific acts or declarations by them or either of them tending to encourage the defendant, or any of his predecessors, in the title, in the belief that their title was good, not by any specific acts or conduct which would render it inequitable for the plaintiffs now to deny that the title supposed to have been acquired under the sale by the administratrix was valid and effectual, but simply from their neglect to assert their rights during this lapse of time. To sustain his conclusion of law on this subject, the referee has furnished an elaborate opinion, and cited many cases claimed to have a bearing on the question, and to uphold his decision.

It will be more convenient, in "the examination of the subject, to refer to the well-established rules regarding estoppels vn pans, as derived, by the elementary writers on the subject, from the cases cited and from many others, than to undertake a critical examination of the cases cited; and for this reason reference will be had to the standard modern works of Mr. Bigelow and Mr. Herman on the law of estoppel, as embracing the law of estoppel vn pans as acknowledged and administered at this day, when the law on this subject has come to be better understood and more frequently administered than formerly.

In the treatise of Mr. Bigelow we find stated, under the heading of estoppel by conduct,” the following statement of the principles out of which the law hhd its origin and upon which it rests :

“ The origin of the peculiar branch of estoppel now to be considered, that by which a party and those in privity with him are estopped to deny the truth of representations made to and acted upon by another, we conceive to be found in the doctrine of equity, that if a representation is made to another, who deals on the faith of it, the former shall make the representation good, if he knew it to be’false. . . In order to justify the interposition of equity in the case mentioned, it is necessary to establish not only the fact of'misrepresentation or concealment, but also that it has been in a matter of substance or importance to the interests of the other party, and that it has actually misled him. For, if the misrepresentation was of a trifling or immaterial thing, or if the party alleging it did not, in fact, trust to it, or was not misled by it, or- if it was vague or inconclnswe in its nature, or if it was upon a matter of opinion or upon a fact equally open to the knowledge of Tooth pa/rUes, and in regard to which neither could Toe -presumed to trust the other • in these and in like cases it is said that equity will not grant relief.

“We shall see in the coarse of the present chapter that these matters are the key to the question of estoppel in pais, and we shall find here the true extent and limits of the doctrine.” (Bigelow on Estoppel, 473.)

The same author lays down the following five cardinal rules, ap-. plicable to the law of estoppel in pais, as extracted from all the cases, saying that “ all the following elements must be present in order to an estoppel by conduct,” viz. :

1. There must have been a representation or concealmmt of material facts.

2. The representations must have been with knowledge of the facts.

3. The party to whom it was made must have been ignorant of the t/ruth of the matter.

4. It must have been mude with the intention that the other pa/rty should act upon it.

5. The other party must have been indiiced to act upon it. (Bigelow on Estoppel, 480.)

The same rules, in substance, are laid down in Herman’s Law of Estoppel. Amongst other things, Herman says:

“ The estoppel does not apply where everything is equally well known to both parties, or where the party sought to be estopped was ignorant of the facts out of which his rights arose, ... to enable a man to set up title by estoppel the party must have been ignorant of the true state of the title at the time he took it, or been without the means of ascertaining it'Toy reference to records.” (Herman on Estoppel, § 422.)

Again : “ No man can set up another’s act or declaration as the ground of an estoppel, unless he has himself been misled or deceived by such act or declaration; nor can he set it up where he ..had the same means of knowledge as to the truth of the statement, as the other party.” (Id., § 430.)

The principles which estop a man from claiming what is conceded to be his own property, are highly penal in their character, and should not be enforced unless there is a concurrence of circumstances, such as are necessary to the creation of an equitable estoppel.

It must appear that he was acquainted with his title, and willfully concealed or misstated it; for it would be gross injustice in construing ignorance or misapprehension of the true nature of a right into a forfeiture of a power to enforce it. It should also be shown that the language or conduct of the owner was the di/rect moti/oe or inducement to the outla/y or expenditure of the person who purchased the land or made the outlay, so as to afford a just ground for the inference that the wrong done by the former occasioned the loss incurred by the latter. “ Ignorance of the true state of the title on the pa/rt of the purchaser must eonev/r with willful misrepresentation or concealment on that of the vendor.” (Id., §425.)

An examination of these various rules regulating the law of estoppel in pais, and a comparison with the facts in this case, will, we think, demonstrate the error of the referee in holding that the plaintiffs are estopped from setting up their title as against the defendant.

When Wellington purchased the premises in 1870 and in 1871, they were vacant and unoccupied; and the referee expressly finds that no adverse possession existed sufficient to bar the plaintiffs’ title.

The referee found, in response to the third request of the plaintiffs’ counsel, that: “ The failure of the surrogate’s court to acquire jurisdiction to cause a sale to be made of the lands of the plaintiffs was apparent on the face of the papers on file in the surrogate’s office,” to wit, in the order to show cause, and might have been discovered^ by an examination thereof, but he refused to find that the plaintiffs had no knowledge of any defect in the proceedings in the surrogate’s court. It does not matter that he refused so to find. There was no evidence tending to show that the plaintiffs, or either of them, had any cognizance of any defect in the surrogate’s proceedings.

.There is no presumption that they did know of any such defect. They were infants at the time when the order for the surrogate’s sale was obtained, of such tender years, that they cannot be presumed to have had any knowledge or information concerning the proceedings.

One of the plaintiffs, George McOulloch, left the vicinity while yet a minor, and went to sea and remained absent for twenty years, after which time he returned and lived, from August, 1865, till May, 1866, within “one or two miles” of the premises in question. The other has, for most of the time, lived within “ a mile or two ” of the premises. Their • father was not, as we understand the facts, in the absolute occupancy of the premises at the time of his death ; and, for aught that appears, the plaintiffs never had any knowledge, until about the time of the commencement of the suit, that their father ever had any interest in the premises.

The title under which Wellington claims was a hostile title, and the presumption that every man is cognizant of the defects in his own title, if any such presumption could be indulged for the purpose of raising an estoppel m pais, can have no application to the plaintiffs, as the defect, if any, is not in their title, but in that of their adversary, and such presumption, if any, exists only as to the latter.

Notwithstanding, therefore, the refusal of the referee to find that the plaintiffs were ignorant of the defect in the defendant’s title, it is to be presumed they were so, as there is no evidence tending to show the contrary, and knowledge of the defect on the part of the plaintiffs is an affirmative fact to be established by evidence, or at least by presumption, before their silence in respect thereto and non-elaim can be imputed as fraudulent.

The non-assertion of their title by the plaintiffs did not occur with knowledge, either in fact or presumptively, of those circumstances which the referee has found rendered the paper title of the defendant invalid. On the other lian d, the defendant had a full opportunity to become aware of the defect in his own title by a resort to the ordinary precautions taken by purchasers of real estate, for the referee finds that the defect in the title was apparent from the record which constituted a part of his chain of title.

It is claimed that the defendant in this case relied, in making the purchase, on the general reputation which is alleged to have prevailed at Corning, that the title of the “ Corning Company” through whom the title had passed, was valid, and therefore omitted those particular investigations which are customary in such cases.

It is not claimed that the plaintiffs by any acts or declarations of theirs had in any way voluntarily aided in creating the impression as to the validity of the title of the “ Corning Company.”

It is the ordinary case of a purchaser who, from his confidence in the vendor, or from other circumstances not imputable to the claimant, has purchased property and omitted to make the necessary and ordinary examination of title. In such a ease the law affords no redress except upon the covenants for title which the purchaser has taken at the time of his purchase.

There was no evidence tending to show that the plaintiffs willfully or fraudulently concealed their title. For aught that appears, the plaintiffs have omitted to assert then title during this long jieriod of time simply because they themselves were ignorant of its existence, or that they ever had or could claim any interest in the premises.

Statutes of limitations sometimes to the ordinary apprehension appear to operate harshly, but in most cases the harshness of their operation is in cutting off claims otherwise valid, rather than in the contrary direction. But such statutes are enacted in pursuance of a general policy which deems it more conducive to justice in general to fix a certain specific time during which a party having title to lands may repose upon that title in the absence of any adverse possession or any positive fraud on the part of the claimant, than to leave it to the varying discretion of any tribunal to hold that the owner has forfeited his rights by a mere non-elm.n, or upon the idea of an eqwitable estoppel w, pans where the owner has done nothing but simply neglect to assert his title within a period to which the Statute of Limitations does not apply.

It seems to us that the conclusion of the referee in this case has only the effect of creating a new statute of limitations, by which title to real estate is forfeited by a mere neglect to assert it, under circumstances, under which the legislature has not made it necessary that it should be asserted in order to save its forfeiture; and while the ingenuity of the reasoning of the referee is conceded, we cannot assent to the soundness of his conclusions as matters of law.; and, therefore, the judgment must be reversed, and a new trial ordered before another referee, costs to abide the event.

Present — Taxcott, P. J.; Smith and Hardin, JJ.

Ordered accordingly.


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    GEORGE T. FISH, Appellant, v. FLETCHER M. THRASHER and others, Respondents.

      Whan an action must be brought in a court of record, to render an order therein appealable to the General Term —Code of Git. Procedure, §§ 1340, 1342.
    Under section 1342 of the Code of Civil Procedure, no appeal can be taken to the supreme court, from an order affecting a substantial right, made by a court or judge, uuless it was made in an action brought in a court of record.
    No appeal lies from an order of the county court, denying a motion for a new trial, where the action was brought in a court not of record, and subsequently came into the county court on appeal from a judgment of the court below.
    Motion to dismiss an appeal from an order of the County Court of Monroe county, denying a motion for a new trial.

      0. EEC. Stevens, for the appellant.

      J. W. Stebbms, for the respondents.
   Talcott, P. J.:

This action was commenced in the Municipal Court of the Oity of Rochester, conceded to be not a court 'of record, and the judgment therein was in the plaintiff's favor. The defendants then appealed to the County Court of Monroe county for a new trial, and on such new trial a verdict was rendered for the defendants. A motion was then made on the minutes for a new trial in the County Court, which motion was granted. Another trial was then had in the County Court, and a verdict was again rendered for the defendants, and a motion was again made for a new trial in the County Court, which was denied. From the order denying a new trial in the County Court the plaintiff appealed to this court, and the defendants now move to dismiss the appeal, on the ground that the order denying a new trial in the County Court is not appealable to this court.

The order appealed from was entered on the 21st of October, 1878, and, upon the 21th ' of the same month a judgment was entered for the defendants on the verdict.

The appeal from the order denying a new trial is sought to be maintained under section 1312 of the Code of Civil Procedure, which section is as follows, viz.:

“ An appeal may also be taken to the Supreme Court from an order affecting a substantial right made by the court or a judge, m. an aoi/ion brought m a oourt specified im, the last section but one.”

The section, 1310, refers to and authorizes appeals to the Supreme Court only from final judgments in courts of record. This action was brought in the “ Municipal Court of the City of Bochester,” conceded not to be a court of record, and it came into the County Court by an appeal from the judgment of the said Municipal Court, and was not brought in the County Court; consequently it is not one of those orders specified in section 1312, from which an appeal lies to this court.

An appeal from an order affecting a substantial right, made by a county court in “ amy action or proceeding” was given by section' 311, of the Code of Procedure. The section 1342 of the Code of Civil Procedure, was, as appears by the note of the codifiers, intended as an amendment of the said section 314 of the Code of Procedure, and this marked change of the language of the section, substituting the words “ brought in ” in place of the words “ in any action or proceeding,” must have had some meaning or purpose-; probably to make the amended section conform to the holding of the court in the case of Quinn v. Weed (5 Hun, 350), which was decided in the third department in 1875, and after the amendment to tbe Code of Procedure iu 1860, by which appeals were given to the Supreme Court from an order affecting a substantial right made by a county court. We think, therefore, the appeal should have been from the judgment, and not from the order denying a new trial, which is not appealable to this court.

Appeal dismissed, with $10 costs.

Smith and Hardin, JJ., concurred.

Motion to dismiss appeal granted, with $10 costs.


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    EMILY COUNTRYMAN, Respondent, v. HENRY P. NORTON, Executor, &c., Appellant.

      A justice of the Supreme Court cannot act as a referee — Const., art. 6, sec. 25— a party cannot waive the prohibition contained therekr — nvhen a case may be sent back to a referee after his term as a justice of the Supreme Court has ceased.

    In July, 1877, a claim against the estate of a deceased person was, pursuant to the statute, referred to J. L. Angle, Esq., to hear and determine. The trial was commenced on the 4th day of September, 1877, and continued by adjournments until December 22, 1877, when it was suspended without day. On December 20, 1877, the said J. L. Angle was appointed a justice of the Supreme Court, to fill a vacancy therein, and on December 22 he accepted the said office and entered upon and continued to discharge the duties thereof until the expiration of the term for which he was appointed, viz.: December 31, 1878.
    On August 10, 1878, the said J. L. Angle, as referee as aforesaid, made and filed his report in the case. Upon an appeal from an order denying a motion to vacate the report, on the ground that the referee was incompetent to act as such while holding the office of a justice of the Supreme Court.

      Belli, that the prohibition contained in sec. 25 of art. 6 of the Constitution, was absolute and peremptory, and prevented any justice of the Supreme Court from acting as a referee.
    That the facts that the trial of the action had been commenced before he was appointed a justice of the said court, and that he acted without malting any charge-for his services, did not relieve him from the said prohibition.
    That the provision could not be waived by any stipulation or acts on the part of the defendant.
    That as the referee had since ceased to be a justice of the Supreme Court, his report should be set aside, and either party should be allowed to proceed with the reference on the evidence and proceedings as they stood on the 22d day of December, 1877.

      Appeal from an order made at a Special Term, denying a motion made by tbe defendant to set aside tbe report of a referee.

      J. D. Decker, for tbe appellant.

      A. P. Butts, for tbe respondent.
   Talcott, P. J.:

Tbis is an appeal from an order made at tbe Monroe Special Term, on tbo 3d day of July, 1879, denying a motion made by tbe defendant to set aside tbe report of tbe referee in tbis case.'

Tbe case was a reference of a claim made against tbe estate of a deceased person wbicb bad been rejected by tbe defendant as tbe executor of tbe deceased, and wbicb in July, 1877, was referred to J. L. Angle, Esq., to bear and determine, witb tbe approval of tbe surrogate of Monroe county, pursuant to tbe statute in sucb case provided, and on wbicb an order for sucb reference was entered. Tbe trial of tbe action commenced about tbe 4th day of September, 1877, before said referee, and was continued by adjournments from time to time, until December 22J, 1877, when tbe further trial of tbe action was suspended without day. On tbe 20th day of December, 1877, by reason of a vacancy wbicb bad occurred in the office of Justice of tbe Supreme Court for tbe Seventh Judicial District, occasioned by tbe death of tbe late Judge Rawson, tbe said referee, James L. Angle, Esq., was appointed by tbe Governor a justice of tbis court.

On tbe 22d day of December tbe said referee accepted tbe said appointment, and duly qualified by taking tbe constitutional oath of office; and on that day entered upon tbe duties of tbe office, and continued to discharge tbe same during tbe continuance of sucb appointment. On tbe 10th day of August, 1878, tbe said James L. Angle made a decision of tbe case as sucb referee, and bis report was filed August 14, 1878, and tbe motion for tbe order now appealed from was made upon tbe ground that tbe said referee was incompetent to act as sucb whilst bolding the office of a justice of tbe Supreme Court, under tbe twenty-first section of tbe sixth article of tbe constitution. That portion of tbe section of tbe constitution referred to is as follows: “Nor shall any judge of tbe Court of Appeals, justice of the Supreme Court, or a judge of a court of record in the cities of New York, Brooklyn or Buffalo practice as an attorney or counsellor in any court of record in this State, or act as referee.”

. This is a direct and express prohibition in the fundamental law prohibiting either of the officers named from acting as a referee whilst he holds such office.

It seems to be entirely plain in its meaning, and requiring and permitting no resort to any extraneous circumstances to guide us in its interpretation.

The language being unambiguous, and the words plain and clear, the intention of the people in adopting the instrument is to be sought, therefore, in the language of the instrument itself, in order to ascertain the intention of the framers of it. It is peculiarly true of the fundamental laws called written constitutions, adopted by the people at large, that, if the provision in question is plain and clear on the face of it, it is to be presumed that the language was used in the ordinary acceptation, and is to be literally interpreted, and exceptions are not to be engrafted on it by any speculation as to the reasons which have induced its adoption, in order to defeat the literal interpretation of its provisions. And that which fairly cannot be held to be within the literal signification of its provisions, cannot be held to be included within it; nor can exceptions be made to those provisions which the language used does not fairly warrant.

It is safer for the judicial department to follow the plain intent and obvious meaning of the provisions of a constitution rather than to speculate as to what the intent of its framers might have been in view of the emergency which has arisen, had such emergency been presented to them.

This same provision of the constitution has been under adjudication by the Court of Appeals in Settle v. Van Evrea (49 N. Y., 281), in which case the above principles of interpretation are fully recognized and applied to the provision in question. In that case, the court, per Allen, J., states the rule to be that: “ Where the terms of a written constitution are clear and unambiguous, and have a well-understood meaning, effect must be given to the intent as declared by its framers, and adopted by the people as the organic law of the State, . . . and that it would be dangerous in the extreme to extend the operation and effect of a written constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be to some extent within the reasons which led to the introduction of some particular provision, plain and precise in its terms.”

In the case of Settle v. Van Evrea, the court held that the restriction against certain judicial officers acting as referees did not apply to “Commissioners of Appeals,” because the clause in the Constitution under consideration did not by its terms literally include those officers. Though the same reasons must have existed for including the “commissioners” in the restrictions which were applicable to the judges of the Court of Appeals proper. The same rules of construction must apply to the same section of the Constitution when it is sought to exempt judicial officers who are plainly included within its terms by speculating as to the reasons which led to the introduction of the section, as when it is sought to extend it to officers not literally included within the fair meaning of the terms used.

We cannot, therefore, agree with the opinion of the learned justice who made the order appealed from, delivered at the Special Term, that the provision' of the Constitution in question can be limited in its effect, and held to apply only to a prohibition against the judicial officers named in the section from recewmg fees as referees.

It seems to us if such was the intention of the provision of the Constitution, as the subject-matter was simple and easy of comprehension, it could and would have been expressed in apt words to indicate an intention to exclude the judicial officers named in it from receiving fees when acting as referees, instead of prohibiting them altogether from acting as referees. It is conceded by the learned justice who made the order appealed from, that the constitutional provision in question, if it is to receive a literal .interpretation, is broad enough to prohibit the referee from further acting as such after he became a justice of the Supreme Court, and we think it must receive such interpretation.

It is claimed by tbe plaintiff, in opposition to tbe motion, that a stipulation has been signed by tbe attorneys for tbe respective parties, by wbicb it was agreed on both sides to waive every legal and constitutional objection” to tbe power and jurisdiction of tbe referee that might arise from tbe fact that be bad been appointed a justice of tbe Supreme Court in wbicb tbe action was pending, after his appointment as referee, and also that sundry proceedings bad been taken on tbe part of tbe defendant wbicb likewise bad tbe effect of waiving such objection.

It is true that a party to an action may directly, or impliedly, waive a constitutional provision intended solely for tbe benefit of himself, and others situated in like circumstances. But tbe provision in question was obviously founded in pubbc policy, and not for tbe sole protection and benefit of those suitors who are situated in like circumstances with tbe defendant in this suit. Tbe defendant furthermore claims that bis eest/wi que trusts, tbe heirs of tbe decedent, refuse to be bound by any such waiver, or to allow a judgment thus obtained to be charged against tbe estate. We do not think tbe provision of tbe Constitution in question is one wbicb could be waived by tbe defendant, and therefore that all proceedings bad by and before tbe referee after be took tbe oath of office as a justice of this court are cormn non judiee, and void.

Tbe referee bas since ceased to be a justice of this court, tbe term for wbicb be was appointed having expired, and it is competent for tbe referee now to proceed with tbe case, tbe proofs not having been closed, or tbe case submitted to him until after bis official term bad commenced. So that tbe evidence already taken while be was lawfully acting as a referee can be retained in tbe case, together with such other evidence as may be necessary, or wbicb either party may desire, under tbe direction of tbe referee, to introduce.

Tbe motion to set aside tbe report of tbe referee, such report having been made during tbe period in wbicb be was incompetent to act as referee, should have been granted. But as both tbe attorneys seem to have acted under a misapprehension of tbe effect of tbe constitutional provision, it is not a case for imposing tbe costs upon either party.

Tbe order appealed from is reversed, and tbe report of the referee, and all subsequent proceedings, set aside, with costs to neither party, and with leave to either party to proceed with tbe reference on tbe evidence and proceedings as they stood on tbe 22d day of December, 1877.

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

Ordered accordingly.


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    MARIETTE ALLEN, Respondent, v. THE ATLANTIC & PACIFIC TELEGRAPH COMPANY, Appellant.

      Telegraph companies, duty of, as to erecting and maintaining suitable poles — liability of, to one passing upon the highway, who is injwed by the fall thereof.

    Where a telegraph company has placed its poles at a sufficient distance from the traveled portion of a highway to be safe from collision with vehicles passing along it under ordinary circumstances, it is not liable for the damages resulting from an accident arising from the breaking and fall of one of the poles, where the-proximate cause of the breaking and fall thereof was a collision with a runaway team of horses and the wagon to which they were attached.
    If the collision was the proximate cause of the breaking of the pole, the defendant cannot be held liable on account of an original deficiency in the strength of tbe pole to withstand such a collision.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.

      G. E. Souther, for tbe appellant.

      Horatio JP. Allen, for tbe respondent.
   Talcott, P. J.:

Tbe action was brought to recover damages for tbe alleged negligence of tbe defendant in erecting and maintaining, at a point two or three miles south of tbe village of Fulton, in Oswego county, a telegraph pole insufficient to sustain tbe wires of its telegraph, by reason of which insufficiency tbe plaintiff claims that tbe pole fell down and the wires were thrown across the highway in such a manner that they caught upon the top of a conveyance in which the plaintiff was riding along the highway, and overturned and broke the carriage, and caused the horse attached thereto to run away, whereby the plaintiff was thrown out and severely injured. The main features of the transaction resulting in the accident were not a matter of controversy before the jury, but it was claimed on the part of the defendant that the breaking of the telegraph pole was not through any insufficiency in the strength of the pole, but was occasioned by a collision with a wagon drawn by a runaway team of horses belonging to a Mr. - Chubb, who lived in the neighborhood of the place where the accident occurred, a short time before its occurrence. No person witnessed any collision between the telegraph pole and the runaway team, but there was circumstantial evidence tending to show that such a collision had occurred, and evidence showing that the pole had fallen about the time when the runaway horses dragging the wagon had passed the pole.

Chubb, the owner of the runaway team, went in pursuit of the escaped team, and, so far as appears, was the first to discover that the pole had fallen.

The law regarding the liability of a telegraph company for an injury occasioned by the fact of one of its poles falling is thus laid down in the case of Ward v. The A. & P. Telegraph Company (71 N. Y., 81).

“ The company is bound to use reasonable care in the construction and maintenance of its line. And if it appears that the post was originally not reasonably sufficient, or that it was carelessly permitted to become insufficient by decay, then responsibility attaches ; but the company is not absolutely bound to have its posts in the streets so strong, that they cannot be broken or thrown down by any storm, nor is it bound to insure the safety of passengers in the streets from injuries resulting from the falling thereof.”

And in that case the refusal of the court to charge that the defendant was not bound so to make or manage its line as to guard against storms of unusual severity, the occurrence of which could not be reasonably expected, was held error.

On this subject, in reference to the claim by the defendant that the pole in question had been broken down by a violent collision with Ohubb’s runaway team, the trial judge had charged as follows: “ Again, gentlemen, there is another important question of law in this case, and one which is, to some extent, an intricate one, and that is the ■ question that arises in relation to the accident that happened, where two parties may have contributed to the accident; this question before you may be an important question, as it relates to the injury. If this pole in question was not a proper one for the place where it stood; if it was not a pole which should have been placed and continued at the point where it stood, then, though it might have been there one or more years, and no accident happened, yet, if, at the time of the accident, it had become unfit and unsafe and improper for the purpose it was designed, the company would be liable, although the team of Chubb may have run against the post and contributed to the injury. The rule of law laid down in 56 N. Y., 200, is, that where an injury to one is caused by, and is the natural and probable result of the wrongful act or omission of another, such other is liable therefor, although other causes put in motion by the act or omission, and which in the absence thereof would not have produced the result, contribute to the injury. These are really the important questions of law in the case.”

Defendant’s counsel requested the court to charge that the defendant was not bound to erect or maintain telegraph poles strong enough to resist any extraneous force, or any collision, or any other force than that of maintaining the wires in their position as affected by storms,” and the court so charged, saying, “I think I will charge the proposition that you propose. I so charge — that covers the whole ground.”

The defendant’s counsel then requested the court to charge “ that if the jury shall find that the pole would not have been broken had it not been for the collision with Oliubbs’ team and wagon, then the plaintiff cannot recover.” To which the court replied, “ I refuse to charge that,” and the defendant excepted to such refusal.

Now, although the last proposition requested by the defendant was covered by the charge made by the judge in answer to the other special request of the counsel, yet the counsel, apparently fearing that the jury could not or would not apply the general proposition charged, to the particular facts of the case, desired to have the trial judge instruct the jury as to the particular application of the principle wldcli had been charged by the judge before, in answer to the special request, and the judge, instead of giving the jury any additional light on the subject, or stating, or in any manner referring to the charge already given as embracing his views on the subject, peremptorily refused to charge as requested.

.The defendant’s counsel then further requested the court to charge “ that if the jury shall find that the pole was broken by the collision with the team and wagon of Chubb, then the plaintiff cannot recover,” to which the court replied, u I charge that, unless the pole was an improper or unsafe pole.”

We think, taking the whole charge together, that it was calculated to leave with the jury the impression that, although the cause of the breaking of the pole was the collision with Chubbs’ runaway team, yet that the jury could find a verdict for the plaintiff on account of their speculations as to the original deficiency in the strength of the telegraph pole to resist such a collision.

As we understand the principles laid down in the case of Ward v. A. & P. Telegraph Company, supra, this is an erroneous view of the law in such a case. The pole was placed at a sufficient distance from the traveled portion of the highway to be safe from collision with vehicles passing along it under any ordinary circumstances, and the defendant was not bound so to make or manage its line as to guard against severe collisions, the occurrence of which could not have been reasonably expected.

If therefore the proximate cause of the breaking of the pole, whereby the accident to the plaintiff was occasioned, was the collision with Chubbs’ team, we do not think the defendant was liable for the consequences of the accident.

There are none of the other exceptions which call for any especial remark, though some of the testimony given by witnesses as expert testimony concerning the pieces of the broken pole produced in court could hardly be considered admissible in that view.

Tbe judgment should be reversed and new trial ordered, costs to abide the event.

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

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


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    THE ALLEGANY OIL COMPANY, LIMITED, Respondent, v. THE BRADFORD OIL COMPANY and others, Appellants.

      Lease of land for boring of oil wells therein — when trespass relating thereto restrained by injunction — nohen lessor not bound to re-enter to enforce a forfeiture —what a sufficient notice of his election to enforce it.

    October 29, 1875, one Branded entered into a contract, under seal, with one Stevens, by which it. was agreed that the latter should, for the term of fifteen years, have the right to enter upon and use the lands of the former so far as might be necessary to enable him to bore for oil, reserving to Branded the one-eighth part of ad oil produced. The contract also provided, that unless Stevens should commence to bore the said wed within the period of nine months from the date thereof, that then the same was “to become void and cease to be of any binding effect.” The contract was duly recorded and subsequently assigned to the defendant, who on February 22, 1877, entered upon the land and commenced to bore a well therein.
    On September 7, 1876, Branded, who had remained in possession of the premises and in no way waived, extended or qualified the fulfillment- of the said contract, executed another and a similar lease to one Marsh and others, conferring upon them the exclusive right to dig and bore for oil on the farm, for the term of twelve years. On January 17, 1876, this lease was duly recorded. Thereafter the same was duly assigned to the plaintiff, who, within the time therein specified, entered upon the land and commenced to bore a wed therein.
    This action was brought by the plaintiff against the defendant and his assignees, and Branded, to procure a judgment declaring the Stevens lease forfeited and annulled, and to restrain the defendants from entering upon the land or boring for oil therein.

      Held, that even though the lease to Stevens appeared upon its face to have become void by reason of the failure of the lessees to commence operations within the time limited by it, and though the act of the defendant in thereafter entering upon the land was a mere trespass, yet as the controversy related to the sinking and boring of oil weds in land, in violation of lights therein claimed by the plaintiff, a court of equity would grant relief by an injunction.

      That as Brandell continued at all times to occupy the land, it was not necessary that he should re-enter or give any notice of his intention to enforce the forfeiture occasioned by the neglect of the lessees to commence operations within tlie time limited.
    That even if any overt act or notice was required, the execution and delivery of the new lease to Marsh was a sufficient declaration of his election to enforce the forfeiture.
    The defendant offered to show that after the execution and delivery of the lease to Marsh, Brandell consented to his entering upon the land.

      Held, that the evidence was properly rejected as immaterial.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      Wm. Oa/ry, for the appellants.

      D. H. Bolles, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment entered at a Special Term in Cattaraugus county.

The action was in equity in the nature of a bill quia timet.

One Andrew Brandell was, on the 29th day of October, 1875, the owner of a pertain parcel of land situate in the town of Allegany, in the county of Cattaraugus, and on that day entered into a contract with one George W. Stevens, which was mutually executed under seal by the said parties, whereby Brandell leased, let, and demised ” said lands to said Stevens, his heirs and assigns, for the term of fifteen years, for the uses and purposes following: Said Stevens, his heirs and assigns, employees and lessees, were to have, at all times during the said term, the right to enter upon and occupy said lands, and take thereon all necessary tools with implements and machinery, and to work and use the same for the purpose of sinking a shaft, or shafts, or drilling, boring, or digging any well or wells, for petroleum, oil, salt or other mineral or vegetable substance, or deposit, which might be found or discovered to be upon, in or under said premises, and to erect any building or buildings which they might find necessary to be erected for such purposes, or which they might need for storage, or refining any oil or other substance so found, and to remove the same from said premises. And in case any petroleum, oil, salt or other substance or deposit should be found or discovered, they were to have the full right and authority during the said term to enter upon and occupy said premises, by themselves, their heirs, assigns, employees or lessees, and to take any method which they might find profitable or desirable to dig, drill, bore, pump or mine for the purpose of obtaining the same, or removing the same, and were to have and hold the same to themselves, reserving nevertheless to Brandell, one-eighth part thereof, and in and by the said contract it was provided that unless said Stevens, his heirs, &c., should commence operations for boring, digging or building, as above stated, upon the said premises, or cause the same to be done, within the period of nine months from the date of the said contract, said contract should become void, and cease to be of any binding effect. The contract was duly acknowledged and recorded in Cattaraugus county.

Stevens afterwards assigned one-half of his interest under said contract to James Nichols, and the two afterwards assigned the same to the Bradford Oil Company, a corporation organized under the laws of the State of' Pennsylvania.

The said period of nine months, within which it was provided by said contract that said Stevens or his assigns should commence operations, expired on the 29th day of July, 1876, and nothing was done by way of commencing the operations mentioned in said contract, either before or after the 29th of July, 1876, until in the month of February, 1877, when the Bradford Off Company commenced to sink a well.

But Brandell remained in the full and undisturbed possession of the premises, and, as the court has found, “ did not i/n cmy' ma/rmer wawe, extend or qualify the fulfillment of the condition.” On the 7th day of September, 1876, after the time specified in. the said condition had expired, he executed, acknowledged and delivered to A. R. Marsh and others, another lease or contract, similar in substance to the contract executed to Stevens, and conferring upon the said A. R. Marsh and others rights similar to those which had been conferred upon Stevens by the lease or contract executed by Brandell to him. This latter contract was duly recorded in the office of the clerk of Cattaraugus county on the 17th day of January, 1876, and was, for a valuable consideration, before the recording thereof, transferred by A. R. Marsh and others, the lessees named in the said lease or contract, to the plaintiff in this suit. It was expressly provided in the agreement with Stevens that the contract' executed to him was not intended to interfere with the use and occupancy of the premises by Branded except as provided in the contract, and not to embrace any of the crops or timber of said land. By the contract with A. R. Marsh and others Branded granted to them the exclusive right to dig and bore for petroleum, &c., for twelve years from the date of the latter contract, reserving one-eighth part of the petroleum or od which should be secured, and provided that the said contract should be void unless the lessees or their assigns should commence operations on the premises within one year from the date of the contract.

• On the 22d of February, 1877, Branded being still In possession, the defendant, the Bradford Od Company, commenced putting up a derrick on the premises, for the avowed purpose of putting down an oil wed and “ developing ” the territory under the Stevens contract, when the plaintiff formally notified the Bradford Oil Company of the lease or contract made by Branded with A. R. Marsh and others, and its transfer to the plaintiff, and required that the said Bradford Oil Company and its employees should cease operations on the land and quit possession, which they refused to do, and commenced to sink an. oil wed and continued prosecuting the work until they were stopped by the injunction issued in this action. The plaintiff, within one year from the date of the contract between Branded and A. R. Marsh and others, entered upon the premises under the said contract as permitted by its terms, and put down an oil wed, and have ever since remained in possession of so much of the premises as by the contract with Branded it is permitted to occupy for the purposes specified in the contract.

This suit is instituted to restrain the Bradford Oil Company and its employees from interfering with the exercise by the plaintiff of the exclusive rights secured by the contract between Branded and A. R. Marsh and others, assigned to the plaintiff, and to be quieted in its title, and to have it adjudged that the rights secured to Stevens and his assigns by the contract of the 29th of October, 1875, were forfeited by the omission on the part of Stevens and his assigns to commence, or cause to be commenced, on the premises operations for the purposes specified in said contract, within nine months from the date thereof; and the trial judge, after finding the facts substantially as above stated, has made a judgment to that effect. Branded was made a party defendant to the action, but made no defense. Several questions are made before this court on the appeal.

It is claimed that if, as the court below has found, the lease or contract with Stevens became absolutely void on account of the non-fulfillment of the condition which had occurred prior to the commencement of the suit, then it did not constitute a cloud upon the title of the plaintiff, and the defendant, the Bradford Oil Company, was a mere trespasser, and the plaintiff had an adequate remedy at law.

Although, as a general rule, it is true that an action canno' De maintained by a plaintiff to remove, as a cloud upon his title, i mvevances, or liens or incumbrances which appear to be void u¿ on the face thereof, yet the authorities show that a different rule prevails when the subject of the controversy is mines or mining property or claims.

Story’s work on Equity Jurisprudence, § 860, says, in speaking of the general rule: “ Cases of mines and collieries may also be mentioned, where courts of equity will entertain bills in the nature of bills qwia timet and bills of peace, . . . and upon such a bill the court will grant adequate- remedy by quieting the party in the enjoyment of his right, . . . and by establishing his right by a decreeand in section 929 he says, “ An injunction is now granted in all cases of timber, coal, ores and quarries where the party is a mere trespasser, or where he exceeds the limited rights with which he is clothed, upon the ground that the acts are or may be an irreparable damage to the particular species of property.” And see West Point Iron Co. v. Reymert, 15 N. Y., 703, where the same jtrinciple is laid down.

It is furthermore claimed that the lease was not void, but only voidable, at the election of Branded, on account of the failure of the lessee to commence operations within the nine months specified in the lease, and that it was necessary that Brandell should have elected to forfeit the contract at the time of the breach of the condition, and given notice thereof to the Bradford Oil Company.

The condition is as follows: “ And the said party of the second part hereby covenants and agrees to and with the payty of the first part, that unless he commences operations for boring, digging, or drilling, or building, as above stated, upon said premises, or causes the same to be done within the period of nine months from the date hereof, then this lease is to become void and cease to be of any binding effect.”

Time, in this case, was of the essence of the contract, from the situation of the property and the nature of the acts to be done. The only consideration for the contract resulting to Brandell was one-eightli of the products which should be realized by Stevens or his assignees by the operations contemplated by the contract. The contract provided that Brandell, the owner of the fee, should not be interfered with in his use of the land for the purposes of tillage, &c., and he remained in the possession of the farm. lie could not be required to enter in order to enforce the forfeiture. “ The law never requires a party to enter on himself.” (1 Smith Lead. Oas., mar. pag. 109.) If the grantor have an estate in possession, he may convey the same at once, as the forfeiture will be complete without entry or claim. (Dumpor's case, 1 Smith Lead. Cas., 109.)

In Boisaubin v. Reed (2 Keyes, 323), under a contract for the sale of timber on certain land, with the right to enter for the purpose of cutting and carrying away, “for and during the term of ten years,” it was held that the party claiming under the contract could not enter after the expiration of the ten years, even for the purpose of removing the timber cut before the expiration of the time limited by the contract. In Kellam v. McKinstry (69 N. Y., 264), where a written contract was made to sell all the bark on the hemlock trees standing on a specified piece of land, to be paid for by installments, the purchaser agreeing to have said bark peeled, piled, measured and settled for in full by the first of September, 1864, it was held that the contract required the completion and fulfillment thereof by the purchasers at the time specified; and that upon failure to perform, their right to peel ancl carry away the bark terminatecl; and tbe grantor, after such, failure, having sold the bark to another, who peeled and removed the same and sold it to another, it was held that the assignee of the first purchaser from the owner of the land acquired no title, and could not maintain an action for the conversion of the bark. (See also McIntyre v. Barnard, 1 Sandf. Ch., 52.) Where the condition absolutely, as in this case avoids the lease or license in case of a breach, the estate lapses, without any entry or notice. (Smith Lead. Cas., supra, notes tó Bumpors’ case) Besides, we are of opinion that in this case the granting of the lease to another party after the breach of the condition was an exercise on the part of Brandell of his right to forfeit the lease originally granted to Stevens, if any positive act on the part of Brandell had been necessary to consummate the forfeiture. It clearly showed Brandell’s intention to hold the Stevens lease, in the language of the contract, void, and that it had ceased to have any binding effect. (Parmelee v. Oswego R. R. Co., 2 Seld., 81; Stuyvesant v. Davis, 9 Paige, 427.)

In Parmelee v. Oswego R. R. Co. (supra), where lands were set apart by the commissioners of the Land Office for the purpose of erecting thereon structures for the manufacture of salt, conditional upon the lessees erecting, within a specified túne, works for the purpose of such manufacture, it was held that the interest of the grantee ceased at the expiration of the time limited, no such structures having been erected; the court holding: In this respect such interest is like an estate for years, which, ipso facto, ceases, without entry, on the breach of the condition annexed to the estate, when there is nothing in the lease to qualify the effect of such breach.

The lease under which the plaintiff claims was duly recorded in Cattaraugus county, on the 17th day of January, 1877. The Bradford Oil Company, claiming under the Stevens lease, entered on the premises on the 22d day of February, 1877, and commenced to put down an oil well, having, therefore, at the time, full constructive' notice of the lease under which the plaintiff claims, and of the plaintiff’s exclusive right. The defendant offered to prove that Brandell consented, on the 20th day of February, 1877, to the entry of the Bradford Oil Company on the premises, and the commencement of operations to bore for oil tbereon. The evidence was objected to and excluded. We think the exclusion of the evidence was correct. The defendant did not offer to show that such entry was made without notice to the defendant of the exclusive lease to A.. R. Marsh and others, which was at the time on record. Brandell, by that lease, had parted with the right to renew his lease to the Bradford Oil Company while the contract with Marsh and others continued in force, and the evidence was immaterial.

For the foregoing reasons we think the judgment was correct.

Smith and Hardin, JJ., concurred.

Judgment affirmed,.with costs.