author: Vann, J.

text:
    Sarah Charlotte Clarke, App’lt, v. Moses Devoe, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Deed—Breach of covenant against erection of nuisance.
    . Defendant, owning Nos. 22 and 24 "West Tenth street, conveyed No. 24 to Robert Clarke by deed, stating that be, “for himself,his heirs, exec utors, administrators and assigns, does hereby cpvenant to and with the said party of the second part, his heirs, etc., that he will not erect or cause to be erected on said lot No. 22, any building which shall be regarded as a nuisance, or which may be occupied for any purpose which may render it a nuisance." -Subsequently, plaintiff, by mesne conveyance, acquired Clarke’s title to No. 24, and before this action was commenced acquired all her grantor’s claims for violation of such covenant. Defendant conveyed 22 to one Johnston without alluding to the covenant, who erected a livery stable thereon which was so used as to become a nuisance.
      Held, that the covenant in question was personal to the defendant, and was solely against his own acts; that it did not make him liable for the acts of his grantees or of the subsequent owners, and that as he neither did the acts complained of nor caused them to he done, no cause of action was established against him.
    Appeal from an order of the general term of the supreme court in the first judicial department, reversing a judgment entered upon the verdict of a jury.
    Action to recover damages for the breach of a covenant contained in a deed from the defendant to a grantor of the plaintiff.
    In April, 1857, the defendant owned two adjoining parcels of land in the city of New York, with the buildings thereon, known as No. 22 and No. 24 West Tenth street, and on the 15th of that month he conveyed the premises known as No. 24 to one Robert Clarke, by a deed which contained the following covenant, viz.: “ And the said Moses Devoe, being also the owner of the adjoining lot, known and distinguished as No. 22 Tenth street, for himself, his heirs, executors, administrators and assigns, does hereby covenant to and with the said party of the second part, his heirs, executors, administrators and assigns, that he will not erect or cause to be erected on said lot, No. 22 Tenth street, any building which shall be regarded as a nuisance, or which shall be occupied for any purpose which may render it a nuisance.” Subsequently, the plaintiff, by various mesne conveyances, acquired the title of ■said Robert Clarke to No. 24, and before the 8th of July, 1885, when this action was commenced, she also acquired by several assignments from her respective grantors, all claims or causes of action to them respectively belonging by reason of any violation of said covenant by the defendant. On the 24th of June, 1863, the defendant conveyed No. 22 to one Johnston, without alluding to said covenant, and without any restriction or limitation upon the uses to which the premises might be devoted. Prior to January 1, 1864, a building was erected by said Johnston on No. 22, which for several years was used as a private stable, but was afterward converted into a livery stable, and so used, according to the verdict of the jury, as to constitute a nuisance.
    This action was brought to recover damages from the defendant for violating the covenant aforesaid by permitting such nuisance to exist upon said premises. Upon the trial it appeared that the defendant neither caused nor permitted the nuisance, but that the same was created and maintained by his grantees and their lessees, without his consent.

      David Gerber, for app’lt; Freling H. Smith, for resp’t.

       Affirming 16 N. Y. State Rep., 264.

   Vann, J.

This is not an action in equity to restrain the continuance of a nuisance, nor in tort to recover the damages caused by a nuisance, but is simply for a breach of the covenant set forth in the foregoing statement. It is not brought against one who personally or through his agents or tenants created the nuisance, nor against one who owned the property at any time when the nuisance existed thereon, but against a former owner of two city lots, who, in selling one, many years ago, made said covenant with reference to the other, which he soon conveyed away and since then he has had no interest in either. The covenant, therefore, is not only the foundation of the plaintiff’s claim, but is the limit of the defendant’s liability. It is not denied that the plaintiff had a remedy for the nuisance against those who caused it, independent of any covenant, but this action depends strictly upon the covenant and can be maintained only by showing a breach thereof.

A covenant is simply a contract of a special nature, and the primary rule for the interpretation thereof is to gather the intention of the ¡Darties from their words, by reading not simply a single clause of the agreement, but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met. Quackenboss v. Lansing, 6 Johns., 49; Duryea v. Mayor, 62 N. Y., 592, 597; Western New York Ins. Co. v. Clinton, 66 id., 326; Platt on Covenants, 136.

The deed under consideration is in the ordinary form, except that between the habendum clause and the usual covenants contained in modern conveyances the paragraph in question was inserted, consisting of a single sentence. This covenant is purely negative in character and has no relation to the land conveyed, but relates wholly to other premises owned by the covenantor and in which the covenantee had no interest There was no agreement that the premises should not be used for certain purposes, or that they should be free from nuisances forever. There was no corresponding covenant by the grantee restricting the use that he might make of the premises conveyed to him, so that the restrictions might be mutual and uniformity of use thus secured. No special object to be attained by the covenant is apparent, because both parcels of land were tenement house property, situated on a back street and surrounded by buildings of an inferior character.

In construing the covenant, it is to be observed that the grantor, although speaking for himself and his successors to the grantee and his successors, confined the restriction to himself alone by agreeing that he, the grantor, wbuld neither erect nor cause to be erected any building that should be regarded as a nuisance. According to the literal, and hence natural, interpretation of this language, the parties meant that the grantor should not personally do or cause to be done any of the inhibited acts. No doubt could arise as to the correctness of this construction, if the parties had not agreed in behalf of themselves and their assigns. The substance of the covenant, however, is limited to the covenantor and purports to restrict his action only. While the capacity in which he assumes to contract is in behalf of himself and others, the actual contract, or the thing agreed not to be done, is limited to bis own acts. Clearly the inconsistency cannot be dispelled by subordinating substance to form, or by holding that the actual agreement is of less importance than the capacity in which it was made.

The learned counsel for the plaintiff contends that the covenant should be read distributively, or as if the grantor had written: “ I covenant for myself that I will not build, etc. I covenant for myself, my executors and administrators that neither I nor they will so build, and I covenant for my assigns that they will not so build; ” but the objection to such a construction is that it requires something to be inserted that the grantor never assented to. He did not agree that his executors, or his administrators, or his assigns should not build, but only that he would not build.. He used no words that connected anyone except himself with the restriction against building, or that imposed an obligation in that regard upon any other person. It was not a general covenant “ not to erect,” as in Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y., 400, but a special covenant that the grantor would not erect, showing an intention to contract against the acts of one person only.

While effect should be given to every word of a written instrument, if possible, it is necessary sometimes to reject a part as sur.plusage and it is never allowable in order to prevent that, or to effect any other result, to insert that which the parties did not agree to. A personal covenant binds the heirs, executors and administrators in respect to assets, so that the word “ assigns ” only need be rejected as surplusage, in order ■ to relieve the case of all difficulty. A strained construction that has no foundation to rest upon except the single word “ assigns,” used in the descriptive and unsubstantial way already mentioned, should not be resorted to when it involves a serious result to the grantor with but slight benefit to the grantee, because it is improbable that under such circumstances such a result wás intended. Hence only by the use of plain and direct language,by the grantor should itbelield that he created a right in the nature of an easement and attached it to one parcel as the dominant estate and made the other servient thereto for all time to come. We think that the language used by the parties permits no such result . We agree with the learned general term that the construction contended for by the plaintiff “ would be giving a scope to the covenant far beyond what the language used requires and beyond what the grantees of lot Ro. 22 had a right to assume in accepting a conveyance of that lot. An incumbrance affecting lot number 22, for the sole benefit of lot number 24 and in a conveyance of lot Ho. 24, into which a purchaser would hardly look for incumbrances upon lo.t 22, will . not be inferred by a forced construction of the covenant or any amplification of its language beyond its natural meaning.”

In the London, Chatham & Dover Railway Company v. Bull, 47 Law Times, 413, upon which the plaintiff relies, the title of the grantee and his lessees was subject to' the covenant The entire language used by the contracting parties and the circumstances surrounding them when they contracted, showed an unmistakable intention that the restriction should be permanent and apply to any one who owned or occupied the land. The grantee was the covenantor and the court did not hold him liable on his covenant for the acts of his assigns, but awarded an injunction against the owners and occupants. While we are unable to concur in all that was said by the court in that case, we do not regard the result as opposed to the principle of our judgment upon thife appeal.

In Norman v. Wells, 17 Wend., 136, the defendant was held liable upon the ground that the act claimed to have been a violation of the covenant was his own act, “ of which he is annually-receiving the avails by way of rent.”

We think that the covenant in question was personal to the defendant and was solely against his own acts; that it did not make him liable for the acts of his grantees or of the subsequent owners, and that as he neither did the acts complained of nor caused them to be done, no cause of action was established against him.

The order should be affirmed and judgment absolute rendered against the plaintiff, with costs.

All concur.


source: Caselaw Access Project

author: Potter, J.

license: Public Domain

text:
    Sarah E. Griffin, App’lt, v. Charles D. Shepard et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Will—Constbuction of—Estate in expectancy.
    By the terms of his will, Stephen Griffin, in 1847, devised one-third of his estate to John C. in fee in either of two events, viz.: that John 0. should survive his then wife Deborah or should have a child by her who should live until it attained the age of twenty-one years, but if neither of these events should transpire the then one-third should go to Joseph Griffin, forever. Neither event transpired. In 1851 Joseph and his wife conveyed by quit-claim deed to John 0. their interest in the premises. Joseph died in 1868 devising all his estate to his son Richard. John 0. died childless in 1873, devising his estate to his adopted daughter and to his • wife, to whose estate defendants succeeded. Held, that John 0. had an estate in possession and in fee until the happening of at least one of the events specified in the will of Stephen, and Joseph also had a future expectant estate in the same one-third if said events or contingencies should not happen, and that such interest of Joseph was alienable and was conveyed by his deed to John 0.
    Appeal from an order of the general term of the supreme court, second department, reversing the judgment of the trial court, and granting a new trial.
    The action is an ejectment brought by the appellant against the respondent Shepard, who claims the premises in question as owner, and the respondent Cornell, who claimed a right of possession as tenant under said Shepard.
    This action was tried before the court without a jury, and judgment was given for the plaintiff. On appeal to the general term of the supreme court the judgment was reversed, and a new trial ordered. The plaintiff thereupon appealed to this court.
    The action relates to a tract of land, in the town of Scarsdale, in the county of Westchester, which was part of a tract of land owned at the time of his death by Stephen Griffin.
    Stephen Griffin died 18th October, 1847, leaving his widow (who died in October, 1860), his sons Joseph and John C. Griffin, and other children. He left a will, which was dated 9th September, 1847, and was proved before the surrogate of Westcnester county 20th December, 1847, whereby he devised his real estate to his said sons Joseph and John C. Griffin in the following language: “ I give, devise and bequeath unto my son Joseph Griffin one-third of all my estate, real and personal, to hold to him, the said Joseph Griffin, his heirs and assigns forever. Provided my son John 0. Griffin shall survive his present wife Deborah L. Griffin, then, in that case, I give, devise and bequeath unto my said son John 0. Griffin the remaining two-thirds of all my estate, real and personal, to hold to him, the said John.C. Griffin, his heirs and assigns forever. Or provided that my said son John 0. Griffin shall have a lawful child by 1ns, the said John C. Griffin's lawful wife, and the said child shall live to the age of twenty-one years, then, in that case, I give, devise and bequeath unto my said son John 0. Griffin the said two-thirds of all my estate, real and personal, to hold to him, the said John 0. Griffin, his heirs and assigns forever.
    “ But provided that if my said son John G. Griffin shall die, leaving his present wife Deborah L. Griffin as survivor, then in that case I give, devise and bequeath unto my said son John 0. Griffin one-third only of all my estate, real and personal, to hold to him, the said John C. Griffin, bis heirs and assigns forever, and the remaining one-third of all my estate, real and personal, I give, devise and bequeath unto my aforesaid son, Joseph Griffin, to hold to him, the said Joseph Griffin, his heirs and assigns forever.”
    No question has been made that by this will one-third of the real estate (including the premises in question) was vested absolutely in Joseph Griffin and one-third in John 0. Griffin. The only controversy in this action relates to the remaining one-tliird.
    The findings of the trial court show that John C. did not have a child who lived to the age of twenty-one years, and that he did not survive his said wife Deborah. And also that after the death of Stephen Griffin said Joseph and his wife executed to John 0., for an expressed consideration of one dollar, a deed dated 6th of February, 1851, which was duly recorded 12th of February, 1851, whereby they did “ remise, release and quit-claim, unto the said party of the second part and to his heirs and assigns forever,” the premises in question, “and also all the estate, right, title, interest, property, possession, claim and demand whatsoever as well in law as in equity of the said parties of the first part, of, in or to the above described premises.”
    Afterwards and on 15th of September, 1864, said Joseph executed to said John 0. a deed which was duly recorded 15th of October, 1864, whereby he did, for an expressed consideration of one dollar, “ bargain, sell .and quit-claim unto the said John 0. Griffin, and to his heirs and assigns forever, all my right, title, interest, estate, claim and demand, both at law and in equity, and as well in possession as in expectancy of, in and to all that certain parcel of land situated in the town, county and state aforesaid, being an estate which has heretofore been quit-claimed by me to said John G. Griffin, a part of which was given under my hand and seal the 6th day of February, in the year 1851,” describing the land conveyed including the premises in question.

      William Romer, for app’lt; Sidney Ward, for resp’ts.

       Affirming 40 Hun, 355.

   Potter, J.

No question is made that Joseph Griffin and John 0. Griffin, the sons of Stephen Griffin, each derived title under the will of the latter to one equal undivided third part of the premises described in the complaint. The contention is in relation to the title of the remaining third, and that depends upon the validity and effect to be given to the deed of quit claim from Joseph to John G. Griffin on the 6th day of February, 1851, and the deed confirmatory of that deed from Joseph to John 0. Griffin bearing date September 15th, 1864. If those deeds, one or both, are valid and effectual, the defendants who claim under John C. are' entitled to the premises, but if not valid and effectual the plaintiff claims to be entitled to one undivided third part of said premises, or, in other words, the question in controversy is, which of these parties to this action is entitled to the disputed one undivided third part of the premises; for the plaintiff’s contention is to the effect that the deed from Joseph to John G. was void, and that the title to that one undivided third remained in Joseph, to which plaintiff has succeeded.

Joseph Griffin assumed to convey his estate or interest in the premises in question to John 0. Were his deeds effectual for that purpose ?

By the terms of the will Stephen Griffin, the testator, devised -this one-third to John 0. in fee in either of two events, viz.: that John G. should survive his then wife Deborah or should have a child by his wife Deborah who should live until it attained the age of twenty-one years, but if neither of these events should transpire, then this one-third should go to Joseph Griffin, his heirs and assigns forever. Neither event transpired. John 0. did not survive his wife Deborah and did not have by his wife Deborah a child that lived till it was twenty-one years of age. Joseph Griffin died in 1868, and devised all his estate to his son, his only heir, Richard H. W. Griffin. John 0. Griffin died in 1873, leaving no children and devising his estate, subject to a legacy of $2,000, to his adopted daughter, the income of the remainder of his estate to his wife for life, and also to his wife one-half of such remainder in fee, and the defendants have succeeded to the estate so devised. What estate did Joseph Griffin take in the disputed one-third? Under the will of Stephen this one-third went to John 0. until it was determined that his wife Deborah did not survive him or that they should not have a child who should live till it was twenty-one years of age. Deborah did survive John 0., who died in 1873. His death before the death' of Deborah determined one contingency. The other contingency was also determined certainly within the year succeeding the year 1873, and probably several years before that.

The contention upon the part of the plaintiff is that the interest or estate of Joseph was a mere possibility, and so not alienable. The contention of the defendants is that the estate of Joseph was an expectant estate, and so alienable under § 35, chap. 1, tit. 2, part 2, R. S., which provides that “ expectant estates are descendible, devisable and alienable in the same manner as estates in possession.” Lawrence v. Bayard, 7 Paige, 76; Pond v. Bergh, 10 id., 140; Beardsley v. Hotchkiss, 96 N. Y., 201, 213, 214; Crooke v. County of Kings, 97 id., 421, 449; Ham v. Van Orden, 84 id., 257, 270; Miller v. Emans, 19 id., 384.

The question for solution, therefore, is what was the character of the estate in this one-third devised to Joseph upon the failure of these contingencies to occur ?

The chapter of the Revised Statutes, above referred to, contains the definitions and nomenclature of the various estates in land. “ An estate in expectancy is where the right to the possession is postponed to a future period.” Section 8, R. S., supra; Ham v. Van Orden, 84 N. Y., 257. Judge Danforth, in his opinion in that case, says: “ It does not seem necessary to determine whether an interest at once vested in her, or whether time and the happening of the specified event were of the substance of the gift, and prevented it from vesting until the event happened. In either case she acquired an interest, R. S., 723, art. 1, tit. 2, part 2, chap. 1, § 10, although the right to possession was postponed to a future period and depended upon the contingency of the death of Wessel without children. This did not prevent the creation of the estate, but rendered it liable to be defeated. Art. 1, chap. 1, tit 2, part 2, vol. 1, R. S., 725, § 31. It was an estate in expectancy, § 9, p. 725, id., however, and could not be destroyed by any alienation or other act of Wessel or his trustee, § 32, id., and upon his death without children would become absolute in the plaintiff. It was, therefore, alienable by her to the same extent as if in possession, (§ 35, id.), and whether it be deemed vested or contingent” Moore v. Littel, 41 N. Y., 66; Crooke v. County of Kings, 97 id., 421; Hennessy v. Patterson, 85 id., 91; Nellis v. Nellis, 99 id., 505.

And estates in expectancy are divided into future estates and reversions. Section 10, R. S., supra. A future estate is an estate limited to commence in possession at a future day either without the intervention of a precedent estate or on the determination by lapse of time or otherwise of a precedent estate created at the same time.” Crooke v. County of Kings, 97 N. Y., 449.

“ Future estates are either vested or contingent They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent when the person to whom or the event upon which they are limited to take effect remains uncertain.” Section 13; 97 N. Y, supra] Beardsley v. Hotchkiss, 96 id., 203-214.

From these .definitions and characteristics of estates it follows that John G. had an estate in possession and in fee until the happening of at least one of the events specified in the will of Stephen, and Joseph also had a future expectant estate in the same one-third if said events or contingencies should not happen and the estates of both of them were created at the same time and under the will of Stephen, their father. Section 10, R. S., supra.

Joseph and John C. together owned an estate in fee and could, at the time of the execution of the deeds from Joseph to John, together have conveyed to a third person a present estate of inheritance, and it seems to us very clear that what each of them might have conveyed to a third person, he might have conveyed to the other and with the same result, viz.: an estate of inheritance. I do not perceive upon what theory the trial court awarded a recovery to the plaintiff of the undivided half of the premises. Assuredly the deed from Joseph to John C. conveyed the one-third which was devised to Joseph in fee. But this consideration is of no moment nor is there any occasion to consider any other question, having reached the result that the disputed one-third was alienable and was conveyed by Joseph Griffin to John 0.

The order should be affirmed and judgment absolute, with costs, should be awarded to defendants.

All concur.


author: Follett, Ch. J.

text:
    Warren Beman, App’lt, v. Louis L. Todd, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Lis pendens—Cancellation.
    In an action brought to charge certain lots with the payment of $40," 000 or so much as should be found due plaintiff on an accounting, alleged to have been wrongfully invested by defendant in those pieces of real estate, the right of plaintiff to file a lis pendens is an absolute one not resting in the discretion of the court, but conferred by statute, and having been properly filed it cannot be cancelled except pursuant to § 1674 of the Code of Civil Procedure.
    2. Same.
    Where no motion was made for an order directing the amendment of the complaint or of the lis pendens, and the record does not disclose the existence of any of the causes prescribed by § 1674 for cancellation of the notice, or that either counsel was heard upon the question, the geneial term is without power to direct that the notice of pendency be so amended as to cancel or destroy it.
    3. Appeal—Stipulation.
    When an appeal is taken from a provision inserted in an order granting a new trial which the court had no authority to make because the question so decided was not presented by the record, the stipulation that if the order appealed from is affirmed judgment absolute shall be rendered against appellant need not be given.
    Appeal from certain provisions of an order of the general term of the first judicial department, reversing a judgment entered on the report of a referee and granting a new trial.

      Moody B. Smith, for app’lt; J. Warren Greene, for resp’t

       Reversing 4 N. T. State Rep., 84.

   Follett, Ch. J.

This action was brought to charge a lot on Twenty-seventh street, two lots on Forty-first street and one lot, on Broadway, in the city of New York, with the payment of $40.- ' 000 or so much as should be found due the plaintiff on an accounting, alleged to have been wrongfully invested by the defendant in those pieces of real estate. The action was tried before a referee, who made a report directing that the complaint be dismissed on the merits, with costs, on which a judgment was entered which' was reversed by the general term and a new trial granted, costs to abide the event, for an error committed by the referee in requiring the plaintiff to call and swear Mr. Woodward as a witness. The order appealed from granted a new trial to be had before a referee named in it, with costs to abide the event, but in addition it directed that the complaint and notice of pendency of action be amended by striking out all allegations concerning the lots on Twenty-seventh, Forty-first streets and Broadway, thus depriving the plaintiff of the right of establishing any lien upon those lots in case he should succeed in the action. From this part of the order the plaintiff appealed to this court. This action is one in which the plaintiff had the right to record a notice of its pendency. Code Civ. Pro., § 1670 ; Mills v. Bliss, 55 N. Y., 139. This right was an absolute one not resting in the discretion of the court but conferred by statute, and having been properly filed it cannot be can-celled except pursuant to § 1674 of the Code of Civil Procedure. Mills v. Bliss, supra; Wilmont v. Meserole, 9 J. & S., 274; Brainerd v. White, 16 id., 399; Niebuhr v. Schreyer, 13 Daly, 546; 1 N. Y. State Rep., 626.

27o motion for an order directing the amendment of the complaint or of the lis pendens was made, and the record does not disclose the existence of any of the causes prescribed by § 1674 for the cancellation of the notice nor does it disclose that either counsel was heard upon the question. "Upon such a record and under such circumstances the general term was without power to direct that the notice of the pendency of the action be so amended as to cancel and destroy it.

The objection is made that the plaintiff did not stipulate that if the order appealed from is affirmed judgment absolute shall be rendered against the appellant as required by subd. 1 of § 191 of the Code of Civil Procedure. It will be observed that the plaintiff has not appealed from that part of the order granting a new trial, or from any portion of it which the general term had power to grant, but limited his appeal to the clause which, in effect, cancelled the notice of the pendency of the action and amended the complaint without a hearing. When an appeal is taken from a provision inserted in an order granting a new trial which the court had no authority to make because the question so decided was not presented by the record, the stipulation need not be given. The part of the order appealed from should be reversed, with costs.

All concur.


author: Haight, J.

text:
    Henry Muhlker, Resp’t, v. Jacob Ruppert, App’lt.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Vendor and purchaser—Title—Description.
    Defendants refused to accept title of a certain lot on the ground that the adjoining lot, the easterly line of which began a certain distance from the corner of the block, would overlap it five feet. Held, that as the source of the title of said next lot was through foreclosure of a mortgage which described said easterly line as starting at or in front of the middle of a party loall, and the westerly line as running through a party wall, both of which were erected before the mortgage was given and were sufficiently located, the party walls were fixed monuments which sufficiently located and determined the land.

      Appeal from an order of the general term of the superior court of the city of New York, reversing a judgment upon the facts as well as the law entered upon a decision of the special term.

      Ashbel P. Fitch, for app’lt; Austen G. Fox, for resp’t.

      Affirming 14 N. Y. State Rep., 734.

   Haight, J.

This action was brought to compel the specific-performance of a contract for the purchase of real estate. The defense was that the plaintiff did not have title to the westerly-five feet of land embraced in the contract.

The land contracted to be conveyed is located in the city of New York on the southerly side of One Hunded and Twenty-fourth street, and has a frontage upon that street of thirty-nine feet commencing at the intersection of Fourth avenue, and westerly therefrom. One Grace T. Turnbull, formerly Smith, is the owner of the lot adjoining on the west, whose title was derived from the same source as that of the plaintiff, but of prior date. Her lot has a frontage of eighteen feet, and commences at a point,, as is claimed, 298 feet easterly from the intersection of Madison avenue with One Hundred and Twenty-fourth street. It is contended on the part of the appellant that the easterly line of Madison avenue is but 400 feet from the westerly line of Fourth avenue, and that, consequently, Mrs. Turnbull's lot laps over five feet upon the lot embraced in the contract in question; whilst on the part of the plaintiff it is claimed that at the time of the conveyance to Mrs. Turnbull the distance between the two avenues at this point was 405 feet

But under the view taken by us of this case it becomes unnecessary to consider this question or construe the statutes under which Madison avenue was laid out as an avenue of the city of New York.

The lands upon the southerly side of One Hundred and Twenty-fourth street, in the block in question, formerly belonged to-Thomas Fealey and David Houston, who erected twelve buildings thereon, including the one covering the lot now owned by Mrs. Turnbull. Her title is derived through the foreclosure of a mortgage which was given to her by Fealey and Houston. The mortgage describes the property as beginning at a point on the southerly side of. One Hundred and Twenty-fourth street distant 298-feet easterly from the corner formed by the intersection of the easterly line of Madison avenue with the southerly side of One Hundred and Twenty-fourth street at or in front of the middle of a party wall; running thence southerly and parallel with Madison avenue and partly through the centre of said party wall, 100 feet and 11 inches to.the centre of the block; thence easterly in the centre line of the block and parallel with One Hundred and Twentv-fourth street, eighteen feet; thence northerly and parallel with Madison avenue and partly through the centre of a party wall, 100 feet and 11 inches to the southerly side of One Hundred and Twenty-fourth street, and thence westerly along the southerly side of One Hundred and Twenty-fourth street, eighteen feet to the place of beginning.

So that it will be observed that the beginning point of Mrs. Turnbull’s land was at or in front of the middle of a party wall, and that this party wall formed a portion of the westerly boundary of her lot; that the easterly line also passed through a party wall, which, in part, formed the eastern boundary of her lot. The testimony of Houston is to the effect that the building upon this lot was erected before the mortgage was given to Mrs. Turnbull; that the house was known as No. 68; that it was their intention to mortgage to her the lot covered by the house. It appears to us that these party walls are fixed monuments which sufficiently locate and determine her land. The evidence sufficiently locates the party walls referred to; they are the easterly and westerly walls to the house known as JSTo. 68 One Hundred and Twenty-fourth street.

Our attention has been called to the case of Smyth v. McCool, 22 Hun, 595, in which it was claimed a different conclusion was reached. But our examination of that case leads to no such result. The description in that case began at a point in the easterly line of Madison avenue distant sixty-three feet northerly from the crossing formed by the intersection of the northerly line of Sixty-first street; thence running northerly along the easterly line of Madison avenue, sixteen feet; thence easterly and parallel with Sixty-first street and part of the distance through the centre of a party wall, etc.

The court, in commenting on the language used in the description, says that it ran along “ Madison avenue sixteen feet, not sixteen feetto the center of a party wall,” and then argues that it ran to no point or monument which would fix the boundary of the lot. But it will be observed that in the case under consideration the line commenced at a point on One Hundred and Twenty-fourth street, ninety-eight feet from the intersection of Madison avenue, at or in front of the middle of a party wall, thus fixing and describing the monument from which the boundary of the lot commenced.

But, again, as we have already stated, Mrs. Turnbull derived her title through a foreclosure of her mortgage and a sale had thereunder, and it appears that prior to such foreclosure Fealey and Houston had conveyed the lot covered by the mortgage to Cornelius J. McCarthy, describing it as known as street No. 68 One Hundred and Twenty-fourth street, and as eighteen feet wide, distant eighty-nine feet from the westerly line of Fourth avenue as widened, just the width of the plaintiff’s land, and McCarthy had conveyed the same to one Henry Magets, describing it in the same way, and. that Mrs. Turnbull, in her complaint asking for a foreclosure of her mortgage, sets up these conveyances and alleges them to be conveyances of the mortgaged premises, thus asserting that the lands covered by these deeds were the same as that covered by her mortgage, and we do not understand that she has ever made any other claim.

We, consequently, are of the opinion that the order of the general term should be affirmed, and that judgment absolute should be ordered against the appellant upon the stipulation, with costs.

All concur.


author: Bradley, J.

text:
    Daniel H. Zimmer, App'lt, v. David Settle et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Husband and wife—Agreement to live separatelx—Liability of SURETIES UPON BOND GIVEN UPON.
    Plaintiff and his wife having agreed to separate, he paid defendants §400, and they gave him a bond that they would support, maintain and clothe her during life, and pay her funeral expenses after death In three months she returned to her husband’s house, and this action was commenced four months after for clothing and support afforded by him. Held, that the return of the wife to the husband’s house was one of the contingencies not provided for by the terms of the contract between the parties, and not subject to the control of either, and put an end to the contract, and plaintiff cannot maintain an action thereon.
    2. Same.
    The husband while living with his wife may be treated by third persons as assuming the rights, duties and liabilities incident to the marital relation, and to a reasonable extent her authority to use his credit may be presumed in behalf of those not advised to the contrary.
    Appeal from judgment, of the general term of the supremo court, in the fourth judicial department, affirming judgment entered on a verdict in favor of the defendants.
    The action was brought upon abond made by the defendants to the plaintiff, of date of April 7,1879, reciting that differences had arisen between Annie M. Zimmer and Daniel H. Zimmer, her husband; that she had brought an action against him for a limited divorce and for her support; that the parties had agreed upon a settlement of it, and that Zimmer had paid to the defendants $400; and containing the condition that if defendants “ do well and truly properly support, maintain, clothe, board, furnish with all the necessaries of life in sickness and health, and tenderly care for the said Annie M. Zimmer during the term of her natural life, and in sickness furnish her proper medical attendance, and in every way render her all such assistance and support as her husband might be under obligations to do, and forever save the said Daniel H. Zimmer entirely harmless and exempt from any further support of the said Annie M. Zimmer, or from annoyance, suits, costs or claims on account of the said Annie M. Zimmer during the term of her natural life, and shall pay her necessary and proper funeral expenses after death,” and if the defendants, or either of them, shall faithfully perform all such stipulations, the obligation to be void, else to remain in force.
    The defendant David Settle is the father, and the other defendants the brothers of Annie M. Zimmer. In October, 1878, she left her husband and went to her father’s house, where she remained at the time the bond was executed, in April, 1879, and on July 23, 1879, she returned to the house of her husband and was living there at the time this action was commenced in November following. The breach alleged is that the defendants had failed and refused to save the plaintiff harmless from claims and suits on' account of his wife and to take care of her. etc., and that in consequence of such default the plaintiff has been compelled to pay certain claims and to provide for and support her. It appeared that after the return of the wife to the plaintiff’s house she obtained some clothing for herself upon his credit, for which he was required to and did pay, and that he supported her. A verdict was directed for the defendants.

      C. A. Clark, for app’lt; Alex Cumming, for resp’ts.

       Affirming 42 Hun, 658, mem.

   Bradley, J.

The bond when made and delivered became a valid obligation of the defendants, and their defense is dependent upon the circumstances and effect of the return of the wife to her husband’s house and home and her continuance there. The evidence did not justify the inference of any breach of the condition of the bond white the wife remained with them and before her return to the plaintiff in July, 1879. By the terms of that instrument the duty assumed by the defendants to provide for the wife and take care of her is not qualified by any circumstances or made subject to any conditions expressed in it. But it may be observed that at the time the contract was entered into she had left her husband and been absent from him six months, and there was then pending her action against him for a separation and alimony, which could be supported only on the ground of ill treatment of her by her husband of a serious character. It evidently was then contemplated by the plaintiff and the defendants that the wife would not return to her husband but would continue to live separated from him, and it was in view of such separation the bond was made and taken.

This is 'also indicated by the recital in it that differences had arisen between the husband and wife, and that she had commenced an action against him for a limited divorce and for her support. It may be assumed that the contract resulting in the giving and accepting the bond was entered into in reference to such situation, which is entitled to consideration in the determination of the purpose and effect of the instrument This does not require any modification of its provisions, but has relation to the application of the language used to the subject within the contemplation of the parties as represented by the situation then existing and the surrounding circumstances, which it. may be assumed they then had in view. Griffiths v. Hardenberrgh, 41 N.Y., 464; Blossomy. Griffin, 13 id., 569; Juilliard v. Chaffee, 92 id., 529.

The occasion which ted to this contract and obligation between the parties was the separation of the wife from her husband, and such was the sole cause for entering into it. It cannot be assumed that there was any purpose to, in that manner, make provision for her care and support as a member of the plaintiff’s family. Such an obligation for that purpose evidently was not in the mind of the parties. Nor was it contemplated that she would return to -and live with the plaintiff, but, on the contrary, it was understood that the situation then existing in that respect would continue, and in that view the parties acted in contracting for and making the obligation. Any other view seems to be contrary to their apparent purpose and repugnant to reason. The primary duty to take care of and support a wife is with the husband, and it cannot be supposed, unless the circumstances clearly require such conclusion, that he intends while she is living with him to deny himself that right, relieve himself from all responsibility in that respect, and-to devolve the performance of that duty wholly upon another. In the present case the existing separation upon which the contract was founded justified it at the time it was made. But when the wife returned to the house of her husband to live and lived with him there, resuming permanently her membership of his family as his wife, the cause which led to the contract ceased to exist, and the considerations upon which it rested disappeared. Articles of separation between husband and wife in which another joins with her as trustee, although valid when made, are rendered void by resumption by them of their conjugal relation. Shelthar v. Gregory, 2 Wend., 422; Carson v. Murray, 3 Paige, 483.

It is, however, urged that there was in this instance no reconciliation in the sense requisite to annul articles of separation; that at all events the court could not properly hold, as matter of law, that it was so, because there was evidence tending to prove that the husband did not consent to her return, and did not receive and fully cohabit with her as his wife. While there is evidence to that effect, it appears that his relations of cohabitancy- with her were substantially the same as they were for considerable time before she left his house. There were no articles of separation in this instance, nor had the wife entered into any agreement to that effect with her husband. She was, therefore, without the fault of the husband or of the defendants, at liberty to seek to make her husband’s home hers. The defendants had no right or lawful power to prevent her doing so. And any undertaking on their part to prevent the restoration of conjugal rights or relations of the husband and wife would have been void as against public policy. ■ They, therefore, had no right against her consent to take her away from the plaintiff’s house. Her purpose evidently was to remain there, and he permitted her to do so. It is difficult to see how he could properly do otherwise. This view is as favorable to the contention of the plaintiff in that respect as can be taken. As between her and the plaintiff it was the right of the wife to return to her husband’s house and insist that it was her home, and it was his duty to provide for her there unless by her conduct she had forfeited that right. This is not claimed. She was not required to respect any arrangement made between her husband and another party for her provision and care elsewhere. This was one of the contingencies which was not only not provided for by the terms of the contract between the parties, but was not subject to the control of either. And when the resumption of her home with the plaintiff could be considered permanent, a situation was produced not provided for by the contract or within its contemplation when it was made. The situation was such that the plaintiff could realize no benefit from the undertaking assumed by defendants, and they were not required to attempt to induce her to leave her husband and go to their house to receive support, nor would they have been justified in seeking to do so without the consent of the husband.

The consequence was that the contract as represented by the condition of the bond, ceased to be effectually operative for the purposes of the burden or benefit of its performance for reasons resulting from the default of neither, produced by a cause over which none of the parties to it had any control which they could legally exercise. And that situation when accomplished put an end to the contract and the obligation made pursuant to it and the plaintiff was entitled to reimbursement of the consideration paid by him. Hildreth v. Buell, 18 Barb., 107; Jones v. Judd, 4 N. Y., 412. The defendants after the return of the wife to her husband to remain there took that view of the matter, and through a third person proposed to the plaintiff to repay to him the $400, and by their answer alleged their readiness to do so. The further performance by the defendants of their obligation within its meaning and purpose required a separation of the wife from the husband and her removal from his home. This could not effectually be made the subject of contract between these parties, and it would be no less unlawful for them to execute such a purpose without her consent It would be repugnant to the policy of the law pertaining to the marital relations, rights and duties of husband and wife. And it was through the exercise of her right that the wife sought and obtained the home of her husband and children and his care and support Thus the purpose of the defendants’ bond was defeated.

It is, however, contended on the part of the plaintiff that the duty of the defendants to care for and support the wife and indemnify the plaintiff from expenses and liability in that behalf, was no less after her return to her husband than while she was living separate from him unless their reconciliation was as between themselves complete so that they fully resumed their conjugal relations. This proposition is in disregard of the apparent relation and other considerations arising from it. It is, however, not entirely clear what is essential to reconciliation in its application to the present case if it did not exist between the plaintiff and his wife. It does not depend upon any particular degree of reciprocal affection or esteem. As between persons in such relation, it may arise from appreciation and observance by them of their marital duty to each other. The husband and wife in this instance not only resided in the same house, and had done so for nearly six years at the time of the trial, but they during that time with their children ate at the same table, they were friendly and kind to each other, with no apparent difference in that respect, occupied separate sleeping rooms as thejr had for two years before. The wife was partially blind and in no condition to do house work, and the evidence tends to prove.that she took no charge of it. It would be a step in advance, without support of. sound policy, to hold that as between the husband and third persons the rights of the latter could not rest upon his apparent..relations.with.his wife while they are living together.

Th@ husband, while .living"with. his. .wife, may be treated by third persons as assuming the'rights,' duties and liabilities incident to the marital relation, and to a reasonable,extent her authority to use Tais credit may be presumed in behalf of those not advised to the contrary. Emmett v. Norton, 8 Carr. & P., 506; Keller v. Phillips, 39 N. Y., 351. And this is not confined to actual necessaries for herself, as is the case when the wife is justifiably living apart from him. The credit of the husband used by the wife under such circumstances might create, as against him, greater liabilities than those with which the defendants would be chargeable upon their undertaking. This is only one reason why the apparent relation between the plaintiff and his wife was not consistent with the performance of their covenant They were not advised by the plaintiff or otherwise that it was other than it appeared to be by the fact that the plaintiff and his wife were living together, and for the purpose of the question here their apparent, in view of its uninterrupted continuance, must be deemed their actual relation. The situation is different from what it would have been if the wife had left the defendants’ house and went to a place other than the house of her husband to live. Then a question would have arisen which requires no consideration here. She, in that case, would have resumed no relation-to the plaintiff which would have cast upon him, as between him and the defendants, any duty, apparent or real, to relieve them from the obligation they had assumed as he did not undertake that'she should remain at the house of the defendants.

The view taken renders it unnecessary to consider the consequences of breach by the defendants of their obligation in respect to the rule of damages, and whether they be partial and limited to such as were sustained prior to the commencement of the action, or also prospective and final.

The most that can be claimed by the plaintiff in support of his motion to amend his complaint by inserting allegations with a view to a recovery of the consideration paid to them is that the ruling of the court upon it was discretionary. The disposition of the motion is not, therefore, the subject of consideration on this review. And as the action, as represented by the cause alleged in the complaint, did not proceed with that view, the question whether the plaintiff was entitled to reimbursement from the defendants of the amount paid to them as the consideration of their obligation or any portion of it, did not arise for determination upon the trial.

These views lead to the conclusion that none of the exceptions were well taken.

The judgment should be affirmed.

All concur, except Potter and Vann, JJ., not voting, and Pollett, Ch. J., not sitting.


author: Parker, J.

text:
    The Concordia Savings & Aid Association, Resp’t, v. John J. P. Read et al., App’lts.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Undertaking—Foreclosure—Code Civ. Pro., § 1331.
    An undertaking on appeal to the general term from a judgment of foreclosure, -which states that the sureties “ do hereby, pursuant to the statute, jointly and severally undertake,” etc., that appellant “will pay all costs and damages which may be awarded against her on said appeal not exceeding §500,” and on affirmance or dismissal “pay the sum recovered or directed to be paid by the judgment,” constitutes merely a valid common law agreement,and the words used are to be given their usual and ordinary legal signification and. not the force and effect of a statutory undertaking.
    Appeal from .a judgment of the general term of the superior court of Buffalo entered January 27, 1888, on an order affirming a judgment o£ the trial court.
    This action is brought to recover on an undertaking given on appeal to the general term from a judgment of foreclosure and sale in the usual form. The undertaking did not comply with the requirements of § 1331 of the Code of Civil Procedure. Aside from the clause relating to costs and damages, the obligation was in accordance with the provisions of § 1327. The undertaking was in words following :
    “ W hereas, on the 27th day of January, 1879, in the Erie county court, the above named respondent, the Concordia Savings & Aid Association, recovered a judgment against the above named appellants, Emil Meier, Elizabeth A. S. Bead et al., for $518.30 damages and costs, and the said Elizabeth A. S. Bead feeling aggrieved thereby intends to appeal therefrom to the general term of the supreme court. Now, therefore, I, John J. P. Bead, doing business at No. 500 Washington street in the city of Buffalo, Erie county, N. Y., by occupation a merchant, and Fannie P. Cottle, of Little Falls, Herkimer county, N. Y., without occupation, do hereby pursuant to the statute, jointly and severally, undertake that the appellant will pay all costs and damages which may be awarded against her upon said appeal not exceeding $500, and do also undertake that if the judgment so appealed from, or any part thereof is affirmed, or said appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment or the part, thereof as to which it shall be affirmed, and said Fannie P. Cottle hereby charges her separate estate with the payment thereof.
    “Dated at Buffalo, N. Y., November 29, 1879.
    “J. J. P. Bead,
    “Fannie P. Cottle.”
    Plaintiff’s attorneys accepted the undertaking and did not take proceedings to enforce the judgment pending the appeal. It resulted m an affirmance. In the meantime, the property was sold pursuant to a judgment of foreclosure and sale founded on a prior mortgage. After the entry of judgment on the order of affirmance and the giving of notice thereof to appellant’s attorneys, this action was commenced.

      O. O. Cottle, for app’lts; Adelbert Moot, for resp’t.

       Reversing 14 N. Y. State Rep., 8.

   Parker, J.

An examination of the record in Goodwin v. Bunzl, 102 N. Y., 224; 1 N. Y. State Rep., 405, and a comparison of the facts disclosed by it with those now under review leads to the conclusion that „this case is controlled by it to an extent which requires the holding that the undertaking before us is a valid common law agreement. In that case, as in this, the undertaking contains the following recital: “ do hereby pursuant to statute in such case made and provided undertake "x" *' While the undertaking is valid and enforceable as an agreement it can only be enforced according to its terms and will not be given the force and effect of a statutory undertaking unless its provisions require it. This agreement provided -first that the appellant “ will pay all costs and damages which may be awarded .against her on said appeal not exceeding $500.” Costs were ■awarded against the appellant on such appeal in the sum of $119.72 and judgment therefor entered on the 9th day of June, 1884, and notice of the entry thereof duly given. Such sum with the interest thereon was, therefore, property recoverable in this action. It further provides as follows: “And do also undertake that if the judgment so appealed from or any part thereof is affirmed or said appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it shall be affirmed.” If the undertaking given had been in the form provided by § 1381, plaintiff’s right to recover would not admit of question, but as it is to be treated ■simply as an agreement between the parties we are to give to the words used their usual and ordinary legal signification. They will not be extended by implication in aid of a party, who having it within his power to protect himself by requiring a statutory bond, elected to accept something else. It will be observed that if the construction so far given to it by the courts be well founded, the sureties absolutely obligate themselves to pay the amount adjudged to be due and secured by the mortgage upon affirmance. So that the plaintiff without exhausting its remedy against the property, even though it had been of sufficient value to realize the amount adjudged to be due, Could have recovered in full of the sureties while a statutory undertaking on appeal from a judgment in foreclosure only requires the payment of any deficiency which may occur upon the sale. The obligation is in the form provided by § 1327 of the Code of Civil Procedure; “ Will pay the sum recovered or directed to be paid by the judgment or order or the part thereof as to which it shall be. affirmed,” and is especially applicable to such class of judgments as that section refers to, to wit. : “A judgment for a sum of money or a judgment or order directing the payment of a sum of money.” It does not embrace judgments decreeing foreclosure, the delivery of possession of real property, assignment or delivery of a document, recovery of a chattel or directing the execution of a conveyance. Por such judgments §§ 1328, 1329, 1330, 1331 prescribe the undertaking necessary to be given and do not contain the language used in this agreement and which this court is urged to declare applicable for the purposes of a recovery on an undertaking to a situation presented and provided for by § 1331. It is conceded that this undertaking could not have operated to stay proceedings on the judgment. And while it does not follow that for such reason certain terms employed in the agreement between the parties may not be so construed as to create a liability equal to or greater than that provided by the section stating the conditions necessary to compel a stay of proceedings, still the examination given to the sections to which we have but briefly alluded is of aid to the court in that it develops that at the time of the making of this agreement the statutory use of the terms here employed did not include a case where a judgment directs the sale of a specific piece of property for the purpose of making plaintiff’s demand out of the avails thereof. And so far as it may be said to contribute towards showing the ordinary signification of the language under consideration it is in hostility to the plaintiff’s position. Again, it has been determined by this court that in a decree in foreclosure there is not a “ sum recovered or directed to be paid.”

Judge Danforth, speaking for this court in Barnard v. Onderdonk, 98 N. Y., 167, said: “The action for foreclosure has re.sulted in a decree, but it is merely for the,purpose of enforcing the lien on the mortgage as by a special execution. It is not for the payment of any sum of money, nor can it be docketed. If, after sale, there should appear to be a deficiency, it may, when ■other steps have been taken, be made a personal judgment; until then it is inchoate. Such is its present condition. As it now stands no amount of money’ can be said ‘to be recovered by it,’ nor is it ‘ a final judgment or decree for a sum of money,’ nor does it direct ‘the payment of a sum of money.’ It is final so far as it directs ‘ the sale of the property mortgaged,’ and the application of the proceeds, § 1626, but beyond that all depends upon a contingency.” This agreement was given after decree made in a foreclosure action, and the situation presented, therefore, comes directly within the language employed by Judge Danforth. Thus, within the ordinary legal signification of the terms used as determined by judicial construction, the parties cannot be said to have agreed that the amount decreed to be paid out of the proceeds of the sale of certain real estate should be paid by the sureties in the event of affirmance, for no sum “was recovered or directed to be paid by the judgment.” The determination, that an undertaking executed, delivered and accepted, under the circumstances presented, is a valid agreement, while required by authority, nevertheless is in part supported by implication. Its effect should not also be extended by implication. In Goodwin v. Bunzl, supra, this question was not before the court. The judgment was in the alternative for delivery of property, or for damages, the amount thereof being determined and the issuing of execution therefor authorized.

The judgment should be reversed and a new trial granted, with costs to abide the event unless the plaintiff within thirty days stipulates to modify the judgment by deducting therefrom the sum of $518.30 with interest thereon from the 27th day of January, 1879, to September 20,1886, in which event the judgment as thus modified is affirmed, without costs of this court to either party.

All concur.


text:
    Ellsworth Tuthill et al., Resp’ts, v. William H. Skidmore et al., App’lts.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Sale—Vendor’s lien—Revival of by insolvency of vendee.
    Where the price of goods sold on credit is due and the vendee becomes insolvent and refuses payment of notes given for the purchase price of the property, which remained in the vendor’s possession, the right of the vendor to retain it as security for the price is revived as against the vendee and his attaching creditor.
    3. Trial—Election of cause of action—When discretionary in court TO DIRECT.
    Where the claims are inconsistent, but they so appear plainly on the face of the complaint, the defendants should, before answering, move that plaintiff be compelled to elect; but if defendant lies by until trial and then moves, the court may, in its discretion, wait until part or all of the evidence is taken before deciding the motion, and its denial is so far discretionary that it will not be reviewed when it appears that the defendant was-not harmed.
    Appeal from a judgment of the general term of the second judicial .department, affirming a judgment for the plaintiffs entered on a verdict directed at circuit.
    September 11, 1886, the plaintiffs, under their new firm name of Ellsworth Tuthill & Co., and Walter E. Lawton, doing business under the name of Lawton Brothers, entered into the following written contract:
    “ September 11, 1886.
    “ Sold for account of Messrs. Ellsworth Tuthill & Co. to Messrs. Lawton Brothers, New York, five hundred tons, sellers’ usual good make platform-dried fish scrap, not treated with acids, of this season’s make, to be ready for delivery before .close of sellers' works, at $28 per ton of 2,000 lbs., actual weight in bulk, F. O. B. sellers’ factory, Promised Land, Long Island. Terms, payment by buyer’s notes at four months, with interest added at a rate of six per cent, per annum from date of delivery, on presentation bills of lading, invoice, weigher’s return, and Stillwell & Cladding’s certificate of moisture. If scrap removed before closing seller’s factory this fall, or if scrap is not removed before such time, buyers are to give their notes, bearing same interest, for an approximate amount, bearing date of such closing. Buyers to have-privilege of leaving scrap, at their own risk, free of charge for storage, till opening of fish season of spring, 1887, providing if they require any scrap between such closing and opening, buyers-are to pay thirty-five cents per ton for loading. Scrap guaranteed, not to exceed twelve per cent, moisture, Stillwell & Cladding’s analysis, from samples drawn in the usual way. Scraps to be in good order and condition.”
    From the date of this contract to the date of the trial of this action (October 25, 1887), the plaintiffs at all times had on hand at their factory at Promised Land, L. I., more than 500 tons of fish scrap of the kind and quality mentioned in the contract, but the quantity sold eior any part of it was ever set apart for the vendee. November 12, 1886, the vendee gave the vendors, towards the purchase price, three promissory notes signed by the purchaser and payable to the order of the sellers, of the dates, for the amounts, and due as follows:

    The purchase price was $14,000, and after deducting these notes $1,000 remained, which was never paid, nor was a note given for it. These notes were all dishonored and have never been paid, nor has any part of the purchase price of the property. About the 1st of tiecember, 1886, the plaintiffs sent the purchaser the following receipt:
    “Ellsworth, Tuthill & Co.,
    “Manufacturers of Menhaden Oil and Guano,
    “ Factory at Promised Land, L. L
    “Promised Land, N. Y., Nov. 12, 1886.
    “We hereby certify that we hold five hundred (500) tons of platform dried fish scrap, of good quality and in good condition, in bulk, subject to the order of Messrs. Lawtdn Bros., in our factory at Promised Land, Long Island, Suffolk county, N. Y., as per terms of contract dated, September 11.
    “Ellsworth, Tuthill & Co.”
    March 24,' 1887, Joseph L. Morton began an action in the supreme court against Walter E. Lawton for the recovery of money, in which an attachment was issued, by virtue whereof, March 28, 1887, the defendant Skidmore, as sheriff, and the defendant Hand, as his deputy, levied upon and seized five hundred tons of fish scrap, then stored at the plaintiffs’ factory. The quantity attached was not separated from a larger quantity of which it was a part, and never removed from the plaintiffs’ premises.
    June 15, 1887, Morton recovered a judgment against Lawton in that action for $22,629.66, which was entered in the office of the clerk of the city and county of New York, a transcript of which was duly filed and the judgment duly docketed June 27, 1887, in the office of the clerk of the county of Suffolk. May 13, 1887, the plaintiffs demanded of the defendants that they release the attachment and surrender the property to them, which was refused, and on the next day this action in replevin for the recovery of the property was begun. Upon the trial each party asked that a verdict be directed in his favor, neither claiming that there was any question of fact for the jury. A verdict was directed for the plaintiffs, upon which a judgment was entered, which was affirmed at general term.

      Thomas Young, for resp’ts; Abram Kling, for app’lts.

       Affirming 15 N. T. State Rep., 888.

   Follett, Ch. J.

It will be assumed that the title to the property passed to the vendee, which is the most favorable view which can be taken of the case for the defendants.

Permitting commercial paper to be dishonored by one engaged. in commerce, and his property to be attached in an action in which judgment is subsequently recovered by default, is evidence, and, if unexplained, is proof of insolvency. Brown v. Montgomery, 20 N. Y, 287; Booth v. Powers, 56 id., 22, 32; Abb. Tr. Ev., 616.

Neither party asserting at the trial that Lawton’s solvency was a question of fact for the jury, the court was justified in holding as a question of law that he was insolvent.

When the price of goods sold on credit is due and unpaid, and the vendee becomes insolvent before obtaining possession of them, the vendor’s right to the property is often called a lien, but it is greater than a lien. In the absence of an express power the lienor usually cannot transfer the title to the property on which the lien exists by a sale of it to one having notice of the-extent of his right, but he must proceed by foreclosure. When a vendor rightfully stops goods in transitu, or retains them before transitas has begun, he can by a sale made on notice to the vendee vest a purchaser with a good title. Dustan v. McAndrew, 44 N. Y., 72. His right is very nearly that of a pledgee with power to sell at private sale in case of default. Bloxam v. Sanders, 4 B. & C., 941; Bloxam v. Morley, id., 951; Milgate v. Kobble, 3 M. &. G., 100; Audenreid v. Randall, 3 Cliff., 99, 106; Blackb. Sale, 2d ed., 445, 454, 459; Benj. Sales, Corbin’s ed., § 1280; Jones’ Liens, § 802.

The vendee having become insolvent and refused payment of the notes given for the purchase price of the property which remained in the vendor's possession, his right to retain it as security for the price was revived as against the vendee and his attaching creditor. Arnold v. Delano, 4 Cush., 33; Haskell v. Rice, 11 Gray, 240; Milliken v. Warren, 57 Me., 46; Clark v.. Draper, 19 N. H., 419; Bloxam v. Sanders, 4 B. & C., 941; Bloxam v. Morley, id., 951; Hamburger v. Rodman, 9 Daly, 93 Benj. Sales, Bennett’s ed., § 825; 2 id., Corbin’s ed., § 1227; Story Sales, § 285; Blackb. Sales, 454.

The plaintiffs allege in their complaint that they own the property and also that they “ had" a special property therein, to wit, a lien for unpaid purchase money,” both pf which allegations the-defendants specifically denied. It is now insisted, as it was at the-trial, by the defendants that the allegation in respect to the special property is not a compliance with § 1720 of the Code of Civil Procedure, which provides that when the right of action or defense rests upon a right of possession, by virtue of a special property; in which case, the pleading must set forth the facts upon which the special property depends, so as to show that at. the time when the action was commenced or the chattel replevied, as the case may be, the party pleading or the third person was-entitled to the possession of the chattel.” The defendants not having movedlo make the complaint more definite and certain, and it affirmatively appearing that they were neither harmed nor misled by the omission to set forth all of the facts out of which the special property arose, the judgment will not be reversed for this defect in the copaplaint.

When the trial began it was moved in behalf of the defendants that the plaintiffs be compelled to elect whether they would seek to recover on the ground that they owned the property or on the ground that they had a lien thereon for unpaid purchase money. To this request the court replied: “ I will hear the evidence first before I compel him to do that.” To this remark the defendants excepted. At the close of the plaintiffs’ case, the defendants offering no evidence, both parties asked the court to direct a verdict ; the motion to compel an election not being renewed. The object of requiring plaintiffs to elect between inconsistent causes of action is to simplify the issues of fact so that they may be intelligibly and fairly tried, but it is plain in this case that the defendants were not misled nor harmed by the refusal of the court to compel an election. The plaintiffs’ allegation that they owned the property and also had a lien thereon for unpaid purchase money were inconsistent. Hudson v. Swan, 83 N. Y., 552. But when, as in the case at bar, the inconsistency plainly appears on the face of the complaint, the defendants should, before answering, move that the plaintiffs be compelled to elect. Cassidy v. Daly, 11 W. Dig., 222. If in such a case the defendant lies by until the trial and then moves, the court may in its discretion wait until part or all of the evidence is taken before deciding the motion, Southworth v. Bennett, 58 M. Y., 659, and its denial is so far discretionary, Kerr v. Hays, 35 N. Y., 331, 336; People v. Tweed, 63 id., 194, that it will not be reviewed when it appears that the defendant was not harmed.

It is also urged on the authority of Hudson v. Swan, supra, and the cases therein cited, that the plaintiffs by alleging in their complaint and asserting at the trial absolute ownership of the property, and also a special interest in or lien upon it, waived their special interest or lien, if any they had, and cannot recover without establishing ownership. In the case cited the facte alleged by the plaintiff to establish ownership were inconsistent with those upon which he relied to establish a lien, which is not the fact in the case at bar. As has been shown, the plaintiffs’ interest was more than that of mere lienors, and there being no dispute about the facts, the inconsistency relating wholly to the legal conclusions to be drawn from the agreed facts, the case cited is not controlling.

The j udgment should be affirmed, with costs.

All concur, except Brown, J., not sitting.