text:
    Mary O. Simis, Resp’t, v. Daniel S. McElroy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Vendor and vendee—Marketable title.
    K. died in 1777, devising certain real estate to his granddaughter 0. T., but in case of her dying without issue to testator’s surviving children or their respresentatives. 0. T., in her life joined in a partition deed to J. and S., and afterwards died in 1824 unmarried and without issue. The deed was made subject to 0. T.’s death without issue as were the mesne conveyances to plaintiff. Held, that she had not a marketable title which she could compel defendant to accept.
    '2. Same—Adverse possession.
    ,_Mere evidence that possession was taken of a portion of the lot in 1856, with no proof of a continuous possession from that time forward, and no proof of any possession of the premises, except such as occupied by the house purporting to have been erected and no proof of the position of the fences inclosing the lot, failed to make out adverse possession.
    Appeal from judgment entered upon decision of the court after trial in the circuit court or supreme court it is not certain which.

      Daniel Daly, for app’lt; S. S. Harris, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover damages for failure to comply with the contract by which the defendant agreed to purchase certain premises alleged to belong to the plaintiff. The defense was that a marketable title was not tendered.

The title of the findings in the case would seem to indicate that the action was tried in the supreme court. The learned justice, however, trying the case states that it was tried at circuit without a jury; and the court thereupon caused an equitable judgment to be entered, which seems to have been entered by the clerk as a postea. This practice is entirely irregular. The only judgment which' can be rendered at circuit in an action to recover damages is a money judgment, the circuit court having no equitable powers, except so far as they may be necessary for the trial of equitable defenses.

A very brief statement of the history of this title seems to show that no proper title was tendered by the defendant. The following facts appeared upon the trial:

1. Jacobus Kip died in 1777, leaving a will dated 30th August, 1770, proved in mayor’s court, 25th July, 1805, recorded 31st October, 1817, devising his residuary estate, including lot 29 shown on diagram attached, to his sons Samuel and John and his daughters Catherine, Mary and Margaret.

By a codicil dated January 13, 1772, he recited the death of his daughter Catharine, and devised the share of his daughter Catherine to his grand-daughter Catherine Teller, in fee, but in case he should die without lawful issue of her body then living, then he devised the part of his real estate devised to her to and among his surviving children or their lawful representatives in fee, share and share alike.

Samuel Kip and John Kip survived the testator. John Kip died 6th October, 1777, unmarried and without issue. Mary Kip died 6th of October, 1780, unmarried and without issue. Samuel Kip died in February, 1804, leaving eight children, viz.: James S. Kip, Elizabeth Kip, Elbert Kip, Samuel Kip, Cornelius Kip, Catherine Kip, Mary Kip and Henry Kip.

2. A partition of said farm was made 9th November, 1804, by deed which was recorded Liber 295, page 497, on 17th April, 1833, all the children and heirs-at-law of said Samuel Kip being parties of the first part, Samuel Jones and Nicholas W. Stuyvesant being the parties of the second part, and Margaret Kip, daughter, and Catherine Teller, grand-daughter of said Jacobus Kip, being parties of the third part This deed recited that Margaret Kip and Catherine Teller, by deed dated 28th March, 1804, conveyed their entire interest in said farm to Samuel Jones and Nicholas W. Stuyvesant, as joint tenants, including all their estate, right, title, possession, claim and demand, beneficial interest and possibility of right or interest whatsoever and howsoever, as well in law and in equity of them, the said Margaret Kip and Catherine Teller.

By this deed tract No. 1, being thirty-three acres and upwards and equal to two-fifths of the farm, was conveyed to the children of Samuel Kip, deceased, in fee. Tract No. 2, containing thirty-three acres and upwards, equal to two-fifths, was conveyed to Jones and Stuyvesant, as joint tenants, being for the share conveyed to them by Margaret Kip,. and parcels 3 and 4, equal to one-fifth, was conveyed to said Jones and Stuyvesant, as joint tenants, subject to be determined by the death of said Catherine Teller without issue of her body then living, if she should happen to die without lawful issue of her body then living.

3. That Messrs. Jones and Stuyvesant executed and delivered to Catherine Kip, one of the children of said Samuel Kip, a deed dated 20th September, 1806, which was recorded 6th March, 1832, in New York register’s office, in Liber 282 of Conveyances, page 203. This deed recites that Jacobus Kip, being seized of the Kip’s bay farm, by his will, gave and devised unto his daughter, Catherine Teller, as a tenant in common, a part thereof, the death of Catherine Teller in her father’s lifetime, leaving her daugher- Catherine surviving. That by a codicil said Jacobus Kip devised the part of his estate devised by his will to his daughter Catherine to his grand-daughter, Catherine Teller, in fee, but in case his said grand-daughter should die without lawful issue of her body then living, then and in such case he devised the • share devised to her to and among his surviving children or their lawful representatives in fee as tenants in common. That Catherine- Teller, the grand-daughter, on 26th March, 1804, granted and conveyed unto Jones and Stuyvesant, their heirs and assigns, all and singular her share in said farm, being one equal undivided fifth part thereof, to hold as joint tenants and not as tenants in common. That partition had been made among the owners thereof, and a part of said premises consisting of two lots at the southerly end of the lane, one of them adjoining the highway or land open thereto and sometimes called lot No. 3 of the one-fifth and the other lot No. 4, the said two parcels being one equal fifth part of the premises, was alloted and set apart to Jones and Stuyvesant as their part and share of said premises under and by virtue of said grant from said Catherine Teller to them, to hold as joint tenants, subject, however, to be determined by the death of the said Catherine Teller without lawful issue of her body then living, if she should happen to die without lawful issue of her body then living, and purported to convey with other property lot No. 29.

Catherine Teller, the granddaughter of Jacobus Kip, died in 1824, unmarried and without issue. Catherine Kip married one John X.,Yan Tuyl in the year 1807, and in March, 1835, conveyed certain premises which it is claimed includes the premises-in question, and by divers mesne conveyances the same were conveyed to one Coman in 1856, at the time when the property was first built • upon, and when there is the first evidence of any possession. Other evidence was introduced showing the history of the title, but there does not seem to have been evidence of any continuous possession, and it was shown that the premises were not enclosed or occupied other than by the building which stood thereon.

The court below held, that “ the objection that the title of Catherine Teller was liable to be determined by her dying without issue, is obviated by the fact that all her title was conveyed to Jones and Stuyvesant, who made partition of this one-fifth among the heirs of Samuel Kip. There being no other persons interested, the grant of the property under the partition made of the 32 lots, vested the title in the heirs of Samuel Kip; the lot in question having been conveyed by Jones and Stuyvesant to Catherine Kip, through whom, by successive conveyances, it has come down to plaintiff.”

It seems to us that the learned court in this statement of the objection to the title arising from the death-of Catherine Teller without issue has overlooked the fact that by the partition deed between the parties wrho were then interested in the estate there was no attempt to convey to the grantees of Catherine Teller more than an estate during her life in case she died without issue, and that then the estate descended under the will to the heirs of the testator, of which the children of Samuel Kip, the son of the testator, were certainly a portion. And there is no evidence of any conveyance or devise of any of them, except the deed from one, viz., Catherine Kip.

It is clear, under these circumstances, that the interest devised under the will of Jacobus Kip to Catherine Teller during her life in case she died without issue has not been conveyed oy the persons to whom it descended. Therefore, as far as the record title is concerned, there was a serious defect.

The claim that a title has been established by adverse possession seems to be absolutely without foundation.

It is true there is evidence that possession was taken of a portion of the lot in 1856. But there is no proof of a continuous possession from that time forward. Nor is there any proof of any possession of the premises except such as is occupied by the house purporting to have been erected on the lot, there being no proof of the position of the fences enclosing the lot; and since the possession established in 1856 there are lapses in the testimony since from 1875 to 1880 no proof of possession was offered, but mere proof of ownership.

In any event, without some proof showing during this period of thirty years where the outstanding interest in the heirs of Kip was vested, it would certainly be dangerous for any person to take the title, as the statute of limitations might not have run; and a party in taking a title to real estate must necessarily be reasonably assured against the buying of a lawsuit.

Upon the whole case we are of opinion that a good title was not offered, and that, therefore, the plaintiff should not recover.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels, J., concurs.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    August G. Nanz, Pl’ff, v. Jesse Oakley, Def't.

      (Supreme Court, General Term, First Departmet,

      Filed June 12, 1891.)

    1. Evidence—Surrogate’s decree—Not sufficient evidence to sustain judgment on bond of administrator.
    An action upon an administrator’s bond cannot be sustained by merely offering in evidence a decree entered in the surrogate’s court against the administrator It is necessary to show by the record that the court has acquired jurisdiction of the parties in the manner prescribed by law.
    2. ” Execution—Issued before judgment docketed in county. @
    • An execution issued twenty-six days prior to the docketing of a judgment in the county to which it is issued is irregular, and confers no power upon the sheriff to execute it.
    3. Same—Code Civ. Pro.. § 1365.
    An execution which does not contain the recital that the judgment had been docketed in the county to which it was issued is fatally defective.
    Motion for new trial on exceptions ordered to be heard, in the first instance, at general term.

      David Thornton, for the motion; W. H. Mundy, opposed.
   Van Brunt, P. J.

—This action was brought to recover upon an administrator’s bond. It has been previously tried and the complaint dismissed; and upon appeal taken to the court of appeals the judgment was reversed and a new trial ordered; and upon such new trial the court directed a verdict in favor of the plaintiff.

Certain exceptions having been taken, they were ordered to be heard, in the first instance, at the general term.

The foundation of the action was a decree entered in the surgate's court against the administrator upon whose behalf the bond had been given in favor of the plaintiff, which decree had not been complied with. Upon the trial of the action such decree was offered in evidence without any proof of the proceedings showing that the surrogate had acquired jurisdiction to render such a decree.

Objection was taken that the decree was simply a postea'and that there was no jurisdiction shown for making the decree and no foundation for it. This objection was overruled and an exception taken.

We think that this was error. In order to make the adjudication of the surrogate’s court binding it was necessary to show by the record that the court had acquired j urisdiction of the parties in the manner prescribed by law. The simple production of a decree proves nothing. Where the objection is taken that the judgment roll must be produced, or that the proceedings which resulted in the decree must be produced, it is error to overrule such objection, because, as already stated, the record must show that the court has jurisdiction of the parties. In the case at bar there is nothing but a decree upon a final accounting. None of the proceedings are offered in evidence going to show that the surrogate had acquired jurisdiction either of the persons against whom he was adjudicating or of the subject matter. This was necessary, because if it appeared from the record that the proper proceedings had not been taken so as to confer jurisdiction upon the surrogate to render the decree which he assumed to render, of course the decree could not be admitted in evidence.

Another objection was taken to the admission of an execution against the property of the administrator who had been directed to pay over the money to the plaintiff’s assignor. It appeared that such execution had been issued twenty-six days prior to the docketing of the judgment in the county to which it was issued. This was clearly an irregularity and conferred no power upon the sheriff to execute the same. Neither could the requirements of the Code be complied with, because such execution could not truthfully contain the recital that the judgment had been docketed in the county to which the execution was issued.

Another execution • was offered in evidence which was subsequently issued. But that execution was fatally defective in not containing the recital required by the Code, that the judgment referred to had been docketed in the county to which the execution was issued.

The objections as to the defects of the assignment which forms the plaintiff’s title cannot be considered because they seem to Have been disposed of upon the prior appeal.

None of the other exceptions need consideration, in view of the fact that the exception to the admission of the surrogate’s decree, without proof of any other papers, is fatal to the verdict which has been rendered.

We are of opinion, therefore, that the exceptions should be sustained, the verdict set aside and a new trial ordered, with costs to defendant to abide event.

Daniels, J.,


text:
    The Mayor, etc., of New York, App’lt, v. Hopper S. Mott, Resp't.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Advebse possession—Hew Yobk city —Lands billed out beyond HIGH WATEB-MABK.
    Defendant’s ancestors, in 1853, filled out, beyond high water-mark, certain lands on the Hudson river near Fifty-fourth street, Hew York city, and occupied down to the commencement of this action, but, in the same year, a trustee holding the legal title thereto, made an application to the commissioners of the sinking fund for a water grant in front of said premises, and in 1870 Jordan Mott made a similar application for a water grant extending out to the permanent exterior line as then established, in front _ of the premises shown upon a diagram annexed to the application, of which he claimed to be the owner. Held, that this was a waiver of the claim of adverse possession, and a recognition of the title of the city
    2. Same.
    Defendants attempted to avoid the effect of the application by showing that Jordan Mott was of unsound mind, and the court refused to charge as requested by the plaintiff, that, if the jury found that he did possess sufficient mental capacity to understand the nature of the act when he executed that application, they must find for the city. Held, error, and that this was not cured by a charge that nothing short of an entire want of mental capacity to understand the nature of the act on his part, would defeat the legal effect of his application in 1870, as this left the jury to determine what the legal effect of his application in 1870 was.
    Appeal from, judgment entered upon verdict of a jury at circuit and from order denying motion for new trial

      Wm. H. Clark, for app’lt; Cecil Campbell Higgins, for resp’t.
   Van Brunt, P. J.

—This is an action in ejectment brought by the city to recover possession of certain premises lying outside of the high water mark of the Hudson river between Fifty-fourth and Fifty-fifth streets in this city. The defendants denied the ■ownership of the plaintiffs in the lands in question and alleged an adverse possession.

Upon the trial the defendants attempted to establish title through a so-called Dutch, grant bearing date in 1642, and also by adverse possession. The jury'having found a verdict in favor of the defendants, from the judgment thereupon entered, and from an order denying a motion for a new trial this appeal is taken.

So far as the defendants attempted to establish any title under the so-called Dutch grant, we think there was an utter failure of proof. There was no evidence whatever even of the existence of .a Dutch paper, much less that it was a grant or that it included the premises in question. There was considerable testimony of legendary character in respect to some Dutch paper, and to a paper which had the figures 1642 upon it; but as to there being any legal proof of the existence of any grant, we have been unable to find it in the record in this case.

The defendants however claim to sustain their title by proof of adverse possession, and the question to be considered upon this appeal is whether that defense is made out by the evidence.

It was established that about 1853 the ancestors of the defendant Mott filled out the premises in question and occupied the same down to the time of the commencement of this action; and this would probably have been sufficient to establish a title by adverse possession had there been no recognition of the superior title of the plaintiff to the land in question.

It is familiar history that the city of New York acquired by grant from the state the absolute title of the land in the tideway lying between high and low water mark; and that in respect to lands under water outside of the tideway, granted by the state to the city, the title vesting in the city was subject to a preemption right in the proprietors of the grants of adjacent lands in the tideway, or in the owner of the uplands in front of the lands in the tideway. Mayor v. Hart, 95 N. Y. 452.

We find, however, that on two occasions the holder of the legal title of the lands in question has recognized the superior title of the land now claimed by the defendants.

In 1853, a trustee holding the legal title to the premises in question, made an application to the commissioners of the sinking fund for a water grant on the North River between Fifty-third and Fifty-fifth streets. It is true that no conveyance was taken from the city on this application, but that in no way affects the recognition of the title to the premises in question in the plaintiffs.

Again, in 1870, one Jordon Mott, being the owner of the premises,-made an application to the commissioners of the sinking fund for a water grant extending out to the permanent exterior line as then established, in front of the premises shown upon a diagram annexed to the application, of which he claimed to be the owner.

It is urged that this diagram shows that the application for a water grant for land extended outside of that which was then occupied by Jordon Mott, and which was beyond the said water mark in front of the uplands held by him. We think, however, that this construction cannot prevail. The diagram shows distinctly that it was intended to represent the uplands belonging to Jordon Mott, because of the ownership of which he claimed a pre-emptive right to a grant of the lands under water. To the lands under water outside of the low water mark, this pre-emptive right was explicitly given by statute; whereas, his pre-emptive right to the land between high and low water mark was merely by implication. Mayors v. Hart, supra.

Upon the diagram the high and low water mark is attempted to be shown, and the upland owned by Jordon Mott is also delineated, and the only possible object in placing these lines upon the diagram was to show from where the grant was to commence. If ' no application was made for land except beyond that which was already occupied by him, the existence of the high water mark lines would have been entirely immaterial. He made this application simply because he was the owner of the upland. There was nothing upon the diagram to show that there was any land beyond the high water mark, or that any claim to ownership of land beyond high water mark was made. Having made this application in that form as the owner of the upland, it cannot now be said that such application was no recognition of the land under water which he was then occupying, and to fortify the title to which the application for a grant was made. The land which was filled in, was in no sense of the word upland.

The provisions of the statute when they give a right of preemption to the grantee of land which had been under water distinctly mention an owner of that description. In all other cases where adjacent owners are spoken of it is apparent that those who own the land above high water mark are meant Under these circumstances this application for a water grant upon the part of Jordan Mott was a clear recognition of the superior title to the land in question in the plaintiff.

But it is said there was proof from which the jury had a right to find that at the time of this application Jordan Mott was an imbecile and incapable of doing any act which would have any binding force. That he was a drunkard and that his habits were bad was established beyond question. But there was no evidence from which it could be inferred that he was unable to transact business in 1870.

In fact we find at and about this time and subsequent thereto that he was transacting his own business, executing deeds and leases, and, in 1869, over a year after the medical testimony showing him to be an imbecile, making a will, which was admitted to probate and never questioned. He seems to have been considered by those around him sufficiently intelligent to transact any and all business except to make an application to the commissioners of the sinking fund for a grant of land upon which his ancestors had squatted.

But it is urged that Mott never accepted a grant from the city; and that even if he had, there was no rule which prevented him from fortifying his title.

This position, however, seems to be in conflict with the authorities in this state. It has been distinctly held that an offer to •purchase land by a party bars the defense of adverse possession, in regard to the land by that party. Jackson v. Croy, 12 Johns., 427; Jackson v. Britton, 4 Wend., 507. In the latter case it was held that where a person has the title such title cannot be affected or impaired by any negotiation had by him with parties claiming to be the owners of the premises; but such negotiations would be conclusive against any claim founded upon adverse possession. A similar rule was laid down in the case of Calkins v. Isbell, 20 N. Y., 147, in which it was held that proceedings to foreclose a mortgage by advertisement is such an acknowledgment of the right of the mortgagor to redeem as to repel the presumption ■otherwise arising from more than twenty years possession by the mortgagee. In order that a possession shall be adverse to the real title there can be no recognition thereof. As is seen in the cases ■cited, the moment that an outstanding title is recognized, even by negotiation for its purchase, it is an admission of the right of the real owner to possession, and the possession of the party in possession ceases to be adverse.

This being the rule, even though the jury had a right to find that Jordan Mott had not sufficient mental capacity to understand the nature of the act when he executed the application to the sinking fund in 1870, a fatal error was committed by the learned court in refusing to charge as requested by the plaintiff, that, if the jury found that Jordan Mott did possess sufficient mental capabity to understand the nature of the act when he executed that application, then the jury must find for the city.

It is true that the court did charge at the request of the plaintiff, that nothing short of an entire want of mental capacity to understand the nature of the act on the part of Jordan Mott, would defeat the legal effect of his application to the sinking fund in 1870.

But this did not meet the claim which the plaintiff had presented in the previous request, that, if he had the mental capacity, then the city was entitled to recover. What the legal effect of his application to the sinking fund in 1870 had been was omitted.

Thus the jury were left not only to consider the application itself, which was not ambiguous as to its extent, but also to determine what the legal effect of this application to the sinking fund in 1870 had been.

We think this was a fatal error. As has already been shown, the legal effect of that application was to waive the claim of adverse possession, being a recognition of the superior title of the city to the lands in question. It was a recognition that his only right to lands under water was by reason of his being the owner of the uplands, and, having thus recognized title in the city, he could not claim to be at that time holding adversely to the city.

We think, therefore, that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to abide event.

Daniels, J., concurs.


author: Barrett, J. Vas Brunt, J. (dissenting).

text:
    E. W. Bliss Co., Resp’t, v. The Opera Glass Supply Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Attachment—Affidavit by secretary of corporation—Non-existence OF COUNTERCLAIMS—CODE ClV. PltO., § 636.
    In affidavits for an attachment by a corporation, it is a sufficient compliance with the statute requiring plaintiff to show that he is entitled to recover a sum stated over and above all counterclaims, if one of the executive officers, whose duties are such that he would naturally know of the-existence of claims against the company, states that there are no such claims to his knowledge.
    Appeal from an order denying the defendant’s motion to vacate an attachment issued against it on the 29th day of April, 1891.

      Masten & Nichols (Arthur H. Masten, of counsel), for app’lt Dill, Chandler & Seymour (James B. Dill, of counsel), for resp’t.
   Barrett, J.

—The sole ground upon which a reversal is here claimed is that the affidavits upon which the attachment was granted do not show a right to recover the sum sued for “ over and above all counterclaims ” known to the plaintiff.

The cause of action is fully established by the affidavit of Mr. Porter, who was the plaintiff’s secretary and treasurer at the times mentioned in the complaint, and who had personal knowledge of all the matters in question. Mr. Porter states that the plaintiff is entitled to recover from the defendant the unpaid balance claimed in the complaint, “ over and above all counterclaims existing in favor of the defendant and against the plaintiff, known to the deponent.” The present secretary of the plaintiff, Mr. Copp, makes a similar statement with regard to counterclaims

The appellant’s objection to these statements is that as Mr. Porter does not appear at the present time to' be an officer of the plaintiff, he cannot know whether any counterclaims have arisen in favor of the defendants since he ceased to be an officer, and that, as Mr. Copp has no personal knowledge of the transactions set forth in the complaint, he cannot know anything on the subject

These objections are not well taken. Mr. Copp may not have had any personal connection with the original sale and delivery of the goods, and yet he may be perfectly competent to make the requisite affidavit with regard to the existence or non-existence of claims against the company. This is not a case where the principal may have knowledge of a claim existing against himself, of which his agent is entirely ignorant. Here the principal, as such, can have no knowledge. It would, for instance, be absurd for one of its officers to state that the corporation was entitled to recover the claim sued upon over and above all counterclaims known to it When, therefore, one of the executive officers of a corporation, whose duties are such that he would naturally know of the existence of claims against the company, states that there are no such claims to his knowledge, the statute is reasonably complied with and the jurisdiction attaches. The object of the statute is to secure a defendant against an attachment for a larger amount than is really recoverable. This is just, and so far as may be necessary to effect that end the statute should be strictly enforced. At the same time, a plaintiff should not be deprived of his rights by a too technical adherence to the letter of the law, or by too great strictness as to the form in which the necessary evidence is presented. Thus, in Buell v. Van Camp, 119 N. Y., 160 ; 28 N. Y. State Rep., 947, the court of appeals held that where there were several individual plaintiffs the affidavit of one of them, to the effect that a cause of action existed against the defendants “ over and above all counterclaims and set-offs known to deponent,” was a sufficient compliance with the statute and showed “ that the plaintiffs were entitled to recover the sum stated in the affidavit over and above all counterclaims known to them.'”

If such a statement was sufficient in the case of individuals, it certainly should not be deemed insufficient in the case of corporations. The argument that the individual affiant may be ignorant of a counterclaim which- is perhaps well known to some of the other plaintiffs, is quite as strong as the argument that the president or treasurer of a corporation may know of some claim against it which is unknown to the secretary.

To require every executive officer of a corporation to make the affidavit against counterclaims before permitting it to apply for an attachment would be unreasonable and oppressive. And such extreme technicality is not required adequately to secure the defendant against an abuse of process.

In Ruppert v. Haug, 87 N. Y., 144, the court of appeals held that it was enough if the affidavit showed this fact as to the absence of counterclaim “ to the satisfaction of the judge who receives the application for the warrant, but there must be some evidence,” citing Steuben County Bank v. Alberger, 78 N. Y., 258, where the same court said : “ If we could gather from the affidavits any fact, however light, which tended to show the existence of the statutory conditions, the judge would have acquired jurisdiction.” In the case at bar, the secretary of the company would have been as likely to know whether the defendant had any counterclaims against the plaintiff as any other of its officers. In addition to his other duties, he naturally had charge of the books of the corporation in which all transactions, involving either debit or credit, are usually recorded. These books, he states that he resorted to before verifying the complaint. The previous secretary showed the entire absence of any counterclaim while he remained an officer of the company, which was as late as the last item in the account. The present secretary, with the books before him, states that he, too, knows of no counterclaim. This was •surely sufficient to confer jurisdiction upon the judge who granted the attachment. It was certainly some evidence of the absence of any such counterclaim. And unless it was necessary to add the testimony of all the other officers of the company to their ignorance of any such counterclaim, it was reasonably sufficient. We have, in fact, no doubt from the affidavits presented, without contradiction or explanation, that the plaintiff is entitled to recover from the defendant the amount claimed over and above all counterclaims.

The order appealed from should, therefore, be affirmed, with costs.

Pattebsojst, J., concurs.

Vas Brunt, J. (dissenting).

—I do not think that the affidavit was a compliance with the provisions of the Code. All that the case of Buell v. Van Camp decides is that such an affidavit conferred jurisdiction upon the court below; and as in such a case that court has no power of review, it affirmed the order; but the general term may review, and should review, even where jurisdiction has been obtained; and when such jurisdiction has been improperly exercised, they should reverse. In the case at bar, the provision of the Code has not been complied with; and as an attachment is an extreme remedy, its issuance is justified only when letter and spirit of statutory requirement are complied with.


text:
    The Hanover National Bank, Resp’t, v. Frederick D. Blake et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Debtor and creditor—Composition agreement—Effect of creditors OBTAINING ADDITIONAL SECURITY.
    Defendant’s firm having made an assignment for the benefit of creditors, plaintiff entered into an agreement with them and the other creditors, by which defendants were to give certain notes in settlement of their debts. AJterwards plaintiff refused to accept a promissory note of the character called for by the composition agreement and exacted the endorsement of Sarah F. Blake. In an action upon such endorsed note. Held, that the attempt to obtain the additional security did not avoid the notes as against defendants, hut only released Sarah F. Blake.
    Motion for new trial on exceptions ordered to be heard in the first instance at the general term.

      C. B. Smith, for app’lts ; T. S. Moore, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover against-the defendant Frederick D. Blake and Chas. Waterman, copartners under the firm name of F. D. Blake & Co., upon a certain promissory note made by said firm, and endorsed by the defendant, Sarah F. Blake.

The defendants, by their answer, alleged that the plaintiff was-a- creditor of- the firm of F. D. Blake & Co.; and that said last mentioned firm being in a failing condition they executed and de-' livered an assignment of their property for the benefit of creditors; that subsequently the said F. D. Blake & Co.’s creditors entered into a sealed agreement by which they agreed to compromise their debts and to accept from said firm, certain promissory notes made by them, and that thereafter the plaintiff refused to accept a promissory note of the character called for by the aforesaid composition agreement, but exacted the endorsement upon said note of Sarah F. Blake, all of which was in fraud of the rights of the other creditors and without their privity, knowledge and consent.

Upon the trial the truth of the facts set forth in the defendant’s answer was admitted, and thereupon the court dismissed the complaint as to the defendant Sarah F. Blake, the endorser of the note, and directed a verdict against the defendants Frederick D. Blake and Charles Waterman, the makers of the note in question, to which exception was duly taken.

Upon this appeal it is claimed that the taking of the endorsed note being in fraud of the other creditors of F. D. Blake & Co., no recovery whatever could be had.

There is nothing in the answer which affects the integrity of the composition agreement. Whatever fraud was perpetrated, was perpetrated after the agreement had been duly executed, and become a valid instrument.

It is clear, upon the facts admitted, that the plaintiff was bound to accept the note of F. D. Blake & Co., unendorsed. They refused, however, to accept it, and Sarah F. Blake endorsed the note. As to this endorsement, it is apparent that the plaintiffs were not holders of this note for value.

They could have been compelled to take the note, or, if they refused, and had sued F. D. Blake & Co. for the original debt or for the amount due upon the composition agreement, they could not have recovered; except, perhaps, after the expiration of the time covered by the note, they might have recovered under the composition agreement the amount which would have been represented by the note, had it been received by them. There was nothing which in any way affected the validity of the composition agreement It was binding upon all the creditors. It is only frauds which enter into the composition agreement itself, that can affect its validity or its operative force. In the case at bar there is no allegation of any such fraud; the only allegation being that, after the composition agreement had become effectual, they demanded additional security.

It is clear that this was entirely without consideration. They had no right to exact this security, and it was void as far as the additional security itself was concerned, but it in no way affected the original debt arising under the composition agreement By exacting this additional security, certainly the plaintiffs did not release the defendants from the obligation to pay anything, which would be the result were the claim of the defendants to be sustained.

We think, therefore, that the direction was right, and the exceptions should be overruled, and the plaintiff have judgment upon the verdict, with costs.

Barrett and Patterson, JJ., concur.


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    Jean A. Tauziede et al., App’lts, v. Francois H. Jumel et al. Resp’ts.

      (Supreme Court, General Term,, First Department,

      Filed June 12, 1891.)

    Bes adjudicata.
    This action was brought for the purpose of fixing the rights of the parties in respect to certain property held in trust by defendant E. and obtaining the same. One Chester had previously brought an action against Tauziede and the other defendants for the same relief, in which action the parties being the same as in this, except the plaintiff Holt, a judgment was rendered charging the trust estate with certain claims of Chester’s assignees under an agreement to which Tauziede and other beneficiaries of the estate were parties. On the trial of this action, the said beneficiaries, assignees of Chester, offered the judgment roll in Chester’s action in evidence as establishing their claim against the trust estate. Held, that the Chester judgment, which was affirmed by the court of appeals, was conclusive upon Holt, one of said assignees, though not a party to the former action.
    Appeal from judgment entered upon decision after trial at special term.

      J. J. Mackin and David Thornton, for app’lts; E. Winslow Paige, for resp’ts.
   Van Brunt, P. J.

—As the case upon appeal does not contain all the evidence which was produced upon the trial of the action, the only questions which seem to be presented are, whether any of the exceptions which were taken are of such a character as to require a reversal of the judgment which was entered herein.

This action was brought for the purpose of obtaining a judgment fixing the rights of the parties in respect to certain property in the hands of the defendant Elliot which was held by hiny as trustee, and directing a sale of said property and a distribution of the proceeds.

Prior to the time of the commencement of this action another action had been commenced by one Chester against one of the plaintiffs herein (Tauziede) and. the other defendants for substantially the same relief.

All the parties appeared and answered in said action and the same was duly tried before a referee, and on the 19th of May, 1888, a judgment was entered in the clerk’s office of this court. The parties to the said action were the same as in this action except the plaintiff Hqlt. In January, 1888, in the action at bar, an interlocutory judgment was entered by which the defendant Elliot was directed to sell the premises described in the complaint, and he was further directed to make a report to this court of his proceedings and deposit the proceeds of such sale or sales after deducting the expenses thereof and the taxes and assessments which were imposed upon the property in the Farmers’ Loan & Trust Company to abide the further order of the court. All other questions except that of sale were by the decree reserved until the coming in of the report, when they might be determined.

Prior to the bringing of the action at bar to trial, in order that a final decree might be entered, the case of Chester v. Jumel, 35 N. Y. State Rep., 4, had been decided, by which the rights and interests of all the parties in the premises in question were adjudicated and determined, except, perhaps, those of the plaintiff Holt, who, as already stated, was not a party to that action.

It appeared during the progress of the trial of this action that subsequent to the commencement of' the action of Chester v. Jumel the plaintiff Tauziede, a defendant in said action of Chester v. Jumel, executed a conveyance to the plaintiff Holt of interests in the premises in question.

Upon the trial of the action now at bar certain of the defendants offered in evidence the judgment roll in the case of Chester v. Jumel, and the counsel to the plaintiff objected to the judgment being received in evidence upon the grounds, first, that it was immaterial and irrelevant; second, that the plaintiff Holt was not a party to the action in which such judgment was recovered; and third, that the plaintiff’s interest was acquired prior to the recovery of said judgment and could not be affected thereby.

Certain other defendants objected to the judgment roll upon the same grounds; the objection was overruled, and the appellants excepted.

Upon this evidence the court found as matter of fact that the judgment in the case of Chester v. Jumel, was binding upon all the parties to this action. An exception was taken to this finding ; and these exceptions bring up the main question of law which is to be considered.

It is clear that the judgment roll was not inadmissible simply because the plaintiff Holt was not a party to the Chester litigation. Conceding that it was necessary that the complaint should have been filed in order to operate as a lis pendens against the parties to the action, and that the Chester judgment was not binding upon Holt because of the failure to file the complaint until the entry of the judgment; yet the judgment was binding upon all the other parties to this action, and they could not litigate the" same questions over again which had been determined in the case-of Chester v. Jumel. It would, therefore, appear that there was no' error in admitting the judgment roll in evidence, even though the court may have erred in giving it a more extensive operation than the facts warranted. And it may be doubtful whether this* court has the power even to review this finding of the learned court because the case does not contain all the evidence. Non constat that there may have been evidence in the case b}r which it was shown that the plaintiff Holt was bound by this judgment, although he was not a party.

But without taking this point, we think that the principles laid down by the court of appeals in the case of Chester v. Jumel, 35 N. Y. State Rep., 4, are conclusive upon the plaintiff Holt even though, they are to be considered as res nova upon this appeal.

It is true that in the disposition by the court of appeals of the case of Chester v. Jumel, the court seems to make a point that the object and intention of the trust, and the respective interests of the various claimants in such fund had been found by the referee, namely, that the fund had been created for the express benefit of the Juméis, De Ohambrun and his lawful assignees; and that its distribution was to be controlled by the terms of the trust as manifested in its creation; and that the finding of the learned court in the case at bar is not as broad as that contained in the case of Chester v. Jumel, the finding being that the premises were conveyed to John Elliot as trustee for the Jumel heirs, no mention being made of De Ohambrun or his assignees. But it appears that De Ohambrun was a mortgagee of the Jumel heirs; and that they had given him a lien and a mortgage upon all the property to which the rights of the Jumel heirs should be established to: the amount of 47£ per cent. They bound themselves to pay 47' per cent of all the gross sums which he should recover for the Jumel heirs; and this agreement has been held to be a valid and subsisting agreement.

It appears that upon the original sale of these premises the Jumel heirs virtually became purchasers to the extent of their shares and interests in the property recovered, and conveyances were made to the defendant Elliot as trustee in their behalf. The rights of De Ohambrun necessarily attached to this property, which had been placed in the hands of the defendant Elliot, as trustee for the Jumel heirs. It was the thing which had been recovered through the efforts of De Ohambrun; and it was forty-seven and one-half per cent of what should be recovered that De Ohambrun was to receive. It is clear that Elliot held this property for the benefit of the Jumel heirs and the parties who had liens upon the interest of the Jumel heirs in the estate which had been sold.

The conclusion of law of the learned judge who tried the case at bar finds that such were the rights of the parties; and although he does not find the trust in the broad terms employed in the Chester case, yet the evidence in the case in reference to the transactions of these parties would have justified such a finding, and where such is the case, if it is necessary to support the judgment, the court, upon appeal, would make the finding, especially as it is clear from the conclusions of law that it was the supposition of the learned court that such a finding had been made. Marvin v. Brewster Iron Mining Co., 55 N. Y., 547.

It seems to us clear, therefore, that the judgment which has been rendered in the case at bar cannot be disturbed even though the decision in the case of Chester v. Jumel is not to be considered as binding upon the plaintiff Holt.

This conclusion makes it unnecessary to consider the points raised by the appellant Gresner.

The judgment appealed from should be affirmed, with costs to the respondents against the plaintiff appellants.

Daniels, J., concurs.


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    Max Ottinger et al., Resp’ts, v. New York Elevated Ry. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Damages—Excessive interest.
    Upon the trial of an action for damages caused by -the erection of an elevated railroad in front of plaintiffs’ premises, damages were awarded to plaintiff by the court at $500 per year for six years, but it entered judgment for $3,450, of which $450 was interest. Held, that the judgment must be modified by deducting $270 interest.
    2. Elevated railroad.
    Plaintiff began his action May 24, 1888, to recover damages for injury to the rental value of his premises through the erection of defendant’s railroad. It was tried in December, 1890, and the building had been rented for two years from May 1, 1890. Held, that the injuries to the reversion were being actually suffered; the defendants were using the property of plaintiffs without payment, and were liable for the trespass.
    Appeal from judgment entered after trial at special term, enjoining the'defendants from maintaining their elevated railway in front of plaintiff’s premises unless they paid the plaintiff a certain sum, and for damages claimed by the defendant’s trespass prior to the commencement of the action.

      Samuel B. Rogers, for app’lts; W. G. Peckham, for resp’ts.
   Van Brunt, P. J.

—It is claimed by the appellants that the amount awarded as past damages and permanent damages is excessive, and not warranted by the evidence.

An examination of the evidence in the case does not show that the defendants have been unjustly treated by the allowances whic vive been made in respect to the amount of damages to t_ ,-ntal or the permanent damages which have been allowed. In fact, such allowance seems to have been reasonable, and there is no ground of complaint.

The learned judge, however, seems to have fallen into an error in respect to the allowance of interest. Five hundred dollars a year as damages for loss of rental was allowed, and interest thereon; and the whole sum allowed, with interest, was $3,450, of which $450 appears to have been for interest The annual legal interest would have been $30, making for the six years $180; and the excess seems to have been unauthorized; and the judgment for' past damages must be reduced by the sum of $270.

It is also urged that the plaintiffs having purchased this property at a reduced price, they have therefore no cause of action. This-question has been too frequently passed upon to need further discussion or elaboration here.

It appeared from the evidence which was introduced that the-premises had been occupied by tenants during all the period covered by this litigation. This action was commenced on the 24th of May, 1888. It appears to have been tried in December, 1890, and that the building had been rented at the time of the-trial for two years from the 1st of May, 1890; and it is urged because of such lease the learned judge erred in granting an injunction which should be operative prior to the expiration of that, lease and that although the plaintiffs can have an injunction to protect the inheritance, viz.: their revisionary estate, it having been held by the court of appeals that these structures are not necessarily to be deemed permanent and as they may be removed before the lease in question, no injunction should have been granted.

Whatever might have been the rights of the defendants in this regard had this action been commenced during the continuance of a leasehold term which had not expired at the time of the trial, no such question can arise in the case at bar.

This action was commenced in 1888, and the lease in question was made in 1890. The injuries to the reversion were being actually suffered; the defendants were using the property of the' plaintiffs .for which they refused to pay and are using it to this; day; and having seized on this property of the plaintiffs to the1 possession of which they were entitled, they cannot be allowed' to continue their trespass without making compensation.

The principles enunciated in the case of Hine v. N. Y. Elev. R. Co., seem to dispose of these questions even if they were not sufficiently disposed of by the case of Macy v. N. Y. Elev., 36 N. Y. State Rep., 245, in which case a provision authorizing actions of this kind is expressly referred to.

It is claimed that that case was decided upon another ground.

But upon what theory it can be claimed that the one or the other ground was considered decisive in the action we are unable to see.

The judgment should be modified by reducing the amount allowed for pást damages from $3,450 to $3,160, and as so modified affirmed, without costs.

Daniels, J., concurs.


author: McAdam, J.

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    James H. McGean, Executor, etc., Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed June 1, 1891.)

    Elevated railroad—Injury to real estate by—Conveyance on pending action.
    Plaintiff conveyed the premises in question, pending an action against defendants, an elevated railway company, for an injunction to restrain them in the operation of their road past the premises, and for damages. The deed reserved to plaintiff “ all damages caused or to he caused by the present, past or future maintenance and operation of the elevated railway, * * * and the fee and easement * * * occupied and invaded by the said elevated railway structure.” Held, that the plaintiff, by the reservation in the grant, preserved his right to continue the action.
    Appeal from a judgment after a trial of the issues at special term. The judgment awards to the plaintiff the sum of $780.42 for past damages, and contains an injunction restraining the defendants from operating their railroad in front of- the premises Ho. 15£ Division street, unless within a time specified they pay the sum of $1,500. The defendants appeal.

      Davies & Rapallo, for app’lts; Roger Foster, for resp’t.
   McAdam, J.

—The main questions urged upon this appeal are such as have already been passed upon adversely to the defendants' contention and need not be again considered. The deed from the plaintiff was made after suit brought, and the transfer of title was not pleaded by supplemental answer or otherwise. In the contract and deed, a reservation drawn in form similar to that which in the case of Henderson v. N. Y. Cent. R. R. Co., 17 Hun, 344 ; aff’d 78 N. Y., 423, was held to be sufficient to entitle a vendor to enforce by injunction the permanent damage done to his property, was inserted to save the plaintiff’s rights of action. The conveyance did not bar or otherwise interfere with the pending litigation. It was made upon the express condition that it should not interfere with it. It would be unreasonable to suppose that one who has sold his property for a much less price on account of the railway should not be able to reserve and enforce his right to compensation for the loss. The right of purchasers to maintain equitable actions has been sustained on the theory that they succeeded to the right to enjoin the operation of the railway. The vendee in this case purchased no such right. He bought knowing that the vendor had a pending action for an injunction and damages, and that whatever rights were secured or damages recovered in that proceeding were to belong to the plaintiff therein, for he had expressly excepted and reserved them from the operation of the grant.

The recovery by the plaintiff bars any action by the purchaser for the same cause of action, and this circumstance deprives the defendants’ objection of all practical significance. The damages recovered belong to the plaintiff. They were assessed on legal principles, and are fully sustained by the proofs, both as to the subject matter and amount

The defendants’ proposition seems to be, that, having conveyed the property, to which the easement is appurtenant and append-ant, it ran with the grant of the land; and that the plaintiff having lost both property and easement, the equitable jurisdiction to enjoin the defendants by injunction ceased, and could not be exercised for the sole purpose of assessing damages, and hence the court below had no power either to award damages or to enjoin the operation of the defendants’ road. The plaintiff had a right to the relief when he brought his suit, and should not be deprived of it by any subsequent act short of parting with his entire right of action. Pom. 'Eq. Juris., §§ 231, 242. If the defendants had applied to the court for leave to serve a supplemental answer, pleading the transfer made after issue joined, the plaintiff might have elected to discontinue his action; or if he had concluded that the easement passed with the grant, might have consented to the supplemental answer unless his grantee elected to continue the action; or he might, under § 756 of the Code, have joined the grantee as a co-plaintiff, and allowed the action to proceed for their joint benefit. That course was not pursued, and the plaintiff missed these opportunities. The defendants ask us upon this appeal to give full effect to a technical objection not pleaded, that might have been obviated if made in time and according to prescribed practice.

The deed in question, on its face, contains this provision:

“ Reserving to the vendor all damages to said property caused or to be caused by the present, past or future maintenance and operation of the elevated railway on Division street, as now constructed, and the fee and easement in Division street, now or heretofore or hereafter occupied and invaded by the said elevated railway structure, when maintained and operated as aforesaid, and the conveyance is made subject to the said reservation to the said party of the first part, his heirs, executors and administrators.”

The property is located on Division street, which was laid out in 1765 by an agreement.between Henry Rutgers and James De Lancey, who owned the land between which it runs upon the division line between their premises. Plaintiff’s predecessor in title was Henry Rutgers. Under that agreement each reserved a fee in one-half the roadway subject to the right of the public to use it as a street. This circumstance peculiar to Division street is not to be overlooked.

Hotice of the grants was notice of their contents, which include, the reservations. Ho one has been or could be misled or. injured to his prejudice, in which respect the case differs from Foote v. The Manhattan Railway Co., 58 Hun, 478 ; 36 N. Y. State Rep., 119. The easement reserved in this instance was, as will be observed, more tangible than mere sunlight or air, and is hardly open to the criticism made against it. We think the plaintiff, by the reservation in the grant, preserved his right to continue the action, and that he was entitled to the relief he obtained.

For this reason, as well as upon the further ground that the technical objection urged against the recovery was not raised by supplemental answer, is not now available to the defendants, the j udgment appealed from must be affirmed, with costs.

Sedgwick, Gh. J., concurs.


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    Max Gentilli, App’lt, v. Achille Starace, Resp’t.

      (New York Superior Court, General Term,

      Filed June 1, 1891.)

    Sale—W abranty—Breach .
    Plaintiff, through a broker, sold to the defendant 169 cases of wine, under a written contract, “All to he delivered in merchantable order. The said goods to be approved by buyer within three days after delivery. Terms, payment by notes for one-half the amount at sixty and ninety days, respectively.” The goods were delivered, and five days afterwards the defendant gave the notes called for thereby, the first of which was paid, and in an action on the second, the defense was breach of warranty. Held, that there was no warranty of the quality of the wine other than to allow the defendant three days in which to satisfy himself whether the goods were merchantable or not.
    Appeal from judgment entered in favor of defendant for $615 with interest and costs, on report of referee, to whom the cause was referred to hear, try and determine the issues.

      William J. Weldon, for app’lt; Coudert Brothers, for resp’t.
   McAdam, J.

—The plaintiff, through a broker, sold to the defendant 169 cases of Prosperi’s Chianti wine, which had just arrived, and was to be delivered on the steamer’s dock. The contract is in writing, in the form of a bought and sold note, and contains the following provisions: “All to be delivered in merchantable order. The said goods to be approved by buyer within three days after delivery. Terms, payment by notes for one-half the amount, each at sixty and ninety days, respectively.”

The goods were delivered, and five days afterwards the defendant gave the notes called for thereby, the first of which was paid at maturity. The present action is on the second note, and the defense is breach of warranty, and a counterclaim of $654.69, over and above the amount of the note sued upon, which is $1,515. The referee adopted the defendant’s theory of the case, and gave him a judgment for the entire counterclaim, less $30.69. The only warranty alleged is that supposed to be contained in the contract, i. e., that the goods were to be delivered in merchantable order, a phrase which means that at the time of delivery the goods were salable and fit for market, Web. Dic. ; Hamilton v. Ganyard, 34 Barb., 204; Benjamin on Sales, § 983, notes by Corbin. The defendant was not to be concluded on this subject by the mere delivery, receipt or inspection of the goods, for the contract gave him three days within which to approve or reject them, that is, to satisfy himself in any manner he desired, whether the goods were merchantable or not. If he rejected them within the three days there was to be no sale, and if he failed to reject within the specified time, the sale was to become binding. Story on Sales, § 249; Benjamin on Sales, § 911; Notes by Corbin. The so called warranty of quality, did not survive the final approval and acceptance of the goods, and this was the intention of the parties to the contract.

As the contract was made before the defendant had an oppor- ■ tunity to examine the goods it was conditional upon their delivery in merchantable order, and the law would have implied this, if the contract had been silent upon the subject. The defendant upon receiving the goods, whether this condition was expressed or not, was entitled to a reasonable opportunity to inspect them, and if found to be unmerchantable reject them. The evident purpose of the contract was to limit the time to three days, so that unless the goods were sooner rejected, the defendant was to be concluded as to their merchantable character. The time 'was definitely fixed as the reasonable period, within which the defendant was to ascertain by tests or otherwise, whether the goods delivered were.equal to the description of them given by the contract, in which case the defendant would be bound to accept if they did answer it, whether he was satisfied in other respects or not. Clark v. Rice, 46 Mich., 308.

That this was the intention is evident from the phraseology of the contract, as well as the acts of the parties, viewed in the light of the surrounding circumstances. The plaintiff was not the manufacturer of the goods and presumably only knew of them as any one engaged in selling similar goods might reasonably be expected to know. It will not be inferred, therefore, that he intended to warrant against latent defects of which he had neither knowledge nor notice, in the absence of language clearly indicating that he did so intend. In order to give rise tox a warranty, the buyer should not have knowledge of rehibitory defects at the time of the contract. Bennett v. Buchan, 76 N. Y., 386. The examination afforded in this case, was to give the defendant the opportunity of obtaining all the knowledge respecting the merchantable condition of the goods and their rehibitory defects that is possible for a dealer or person other than the manufacturer to discover, and this examination was to precede the sale.

The term warranty is not used in the contract, nor is there any positive affirmation or representation as to quality contained therein. In short, there is nothing but a mere executory agreement to deliver in merchantable order, and that the defendant have three days to determine whether the goods answer that requirement or not. Properly interpreted the various provisions of the contract mean substantially this. The plaintiff was to deliver to the defendant 169 cases of wine, and it was left to the latter to determine within three days whether it was in merchantable order. If he decided it was not, he was at liberty to reject the wine and there was no sale, and if he did not decide that the wine was unmerchantable, within the time specified, the transaction was to be regarded as an executed sale with an acceptance of the property at the vendee’s risk.

The contract fixed the price, mode of delivery and all Other details with particularity, and there was but one subject left open, and that was the merchantable character of the wine, which could be rejected, but only on the ground of being unmerchantable. The plaintiff evidently did not mean to leave the question of merchantable order of the goods to the decision of the defendant, and' then insure or warrant the correctness of his decision. A vendor may obligate himself in that unbusinesslike manner, but he should not be held to have done so, except where the intention so to do definitely appears, and it does not so appear in this case. It was not the sale of a commodity in respect to which the vendor possessed any knowledge which the defendant could not by his examination have readily obtained. The plaintiff and defendant are both merchants and dealers in the commodity, so that neither possessed any advantage over the other in respect to the subject matter of the sale, both stood on the same footing, and the contract indicates that the examination afforded the defendant was to be the crucial test as to whether there was to be a sale or not. The thing sold was not a patented, complicated or intricate device of which the plaintiff had especial knowledge, but an ordinary' article of trade, the merchantable character of which is discoverable by familiar tests employed by those engaged in the business, by means of which transactions of like character with “ merchantable condition ” as the basis, are consummated almost daily in this city.

The decision of the question of merchantable order was left wholly to the defendant to be determined in any manner most satisfactory to himself. There was no fraud or concealment on the part of the vendor, and he made no effort to influence the defendant in coming to a conclusion.

Sixty days after the approval of the goods, the defendant vol untarily paid the first note given for half the purchase price, and by the judgment rendered in his favor he avoids the second note (the one in suit) and recovers back $615 of the amount paid on the first note, and keeps the goods as well. There are cases holding that a warranty of quality, even where the vendee has the option of returning the goods, may survive their acceptance. While some of the distinctions drawn are narrow, it is nevertheless apparent in those cases, from the phraseology of the contract and the nature of the transaction, that a continuing warranty was intended, and the court simply gave effect to the evident intention of the parties. Day v. Pool, 52 N. Y., 416, cited by the defendant, was the case of an executory contract of sale, with an express warranty intended to survive the acceptance of the goods, and is therefore inapplicable to the facts disclosed here. In a subsequent case, Dounce v. Dow, 64 N. Y., 411, which is more like this than Bay v. Pool, supra, that case was cited and distinguished. The goods delivered here answered the description called for by the contract; and if the defendant wished to guard against any supposed secret or hidden defect or infirmity not discoverable by ordinary examination, he should have obtained an express warranty in respect thereto that might have survived the acceptance of the subject matter of the sale. The description of a thing is sometimes an implied warranty that the article delivered shall correspond with the description; but this rule is generally applied for the purpose of affording the purchaser a more enlarged remedy by rescission than he would have on a simple warranty. In Victor v. Stroock, 25 N. Y. State Rep., 745, the court even modified this rule by holding that where the vendee examined a particular lot of goods prior to the sale, and the goods delivered were those examined and purchased, it was immaterial by what name they were called, especially where both parties were on an equality, having equal skill in the business. There was every opportunity to inspect in this case. Indeed, there was no sale until after the defendant had examined the property and approved of its merchantable condition.

In Reed v. Randall, 29 N. Y., 358, it appeared that the plaintiff sold and agreed to deliver to the defendant a certain crop of tobacco, to be delivered “ well cured and boxed and in good condition.” In an action for the purchase money, the defendant contended that the tobaeco delivered was not “ well cured and in good condition.” The court held that the terms used in the contract did not constitute a warranty, and that the defense amounted to an allegation of mere non-compliance with the contract declared on.

The court further held that the retention of the property is an admission on the part of the vendee that the contract has been performed; that the vendee cannot accept the delivery of the property under the contract, retain it after having had an opportunity of ascertaining its quality, and recover damages, if it be not of the quality or description called for by the contract. To the same effect are The Dutchess Co. v. Harding, 49 N. Y., 321, and Jones v. McEwan, 16 Southwestern Rep., 81. In McCormick v. Sarson, 45 N. Y., 265, it appeared that the defendant purchased all the lumber in the plaintiff’s mills at an agreed price per 1,000 feet for the “ prime,” another price for the “ merchantable ” and another price forrefuse," and the lumber having been delivered after opportunity for examination, the plaintiffs gave a receipt for so much lumber, describing it as above.

The action was for the price, and the defendant offered to prove “ that all the lumber for which the action was brought as prime, and a large portion of that claimed as merchantable, was not prime or merchantable, but only refuse, and of a vastly inferior quality to prime or merchantable.” The trial judge refused to receive the evidence, and the court of appeals in sustaining the ruling of the trial judge, said: “ The evidence before the court proved that the lumber had been delivered to and accepted by defendant’s agent as of the qualities claimed. The contract had been executed. The testimony offered did not propose to contradict that. In fact it was entirely in harmony with that evidence. It said virtually: I bad an opportunity of examining this lumber; I did examine it, and accepted it as prime, but afterwards I ascertained it was not prime; I changed my opinion and judgment; the fact was otherwise. This will not do. If he accepts it after examination or after an opportunity for examination, as fulfilling the contract, he is bound by such action,”

In Coplay Iron Company v. Pope, 108 N. Y., 232; 13 N. Y. State Rep., 480, was an action by a manufacturer. There was no collateral warranty or agreement as to the quality of the iron, further than the description of the article which was to be delivered in the future, and the court held that the defendant having accepted the property, without any offer to return, was deprived of any right to make complaint of inferior quality.

There was no collateral warranty or agreement here, further than that to be inferred from the description of the article to be delivered, and the defendant having accepted it after full examination is bound to pay for it. The maxim of the common law, caveat emptor, is the general rule applicable to sales, so far as quality is concerned, and the buyer in the absence of fraud, purchases at his own risk, unless the seller has given an express warranty, or unless a warranty be implied from the nature and circumstances of the sale, and none can be implied here, because the sale was not by the manufacturer, and the buyer purchased after full examination and approval. Even in a sale by the manufacturer, he is liable only for any latent defect in the process of manufacture, but the implied warranty does not extend to a latent defect in the materials used, unless it he proved or can be fairly inferred, that the vendor knew of the defect. Hoe v. Sanborn, 21 N. Y., 552. There was no express warranty by the vendor in this case, and none can be implied which survived the acceptance of the goods. Moses v. Mead, 1 Den., 378. There being no express warranty as to'quality and no fraud it matters not whether the defects were latent or patent, the defendant accepted the goods in performance of the contract and has no right to complain now that he made a mistake as to their quality. If the defendant wanted a warranty against latent defects he should have applied for it, and then the vendor would have decided whether he would assume such an obligation or not. He did not enter into any such undertaking and that ends all controversy concerning it.

In Hamilton v. Ganyard, 34 Barb., 204, the contract was to deliver a crop of corn in “merchantable order,” and the trial judge held (p. 205) that the vendor was obliged to deliver “ sound and ripe corn,” and that the vendee was not bound to receive any other. This ruling was affirmed. The same construction would apply to a contract for apples, peaches, or the like, which are not marketable unless sound and ripe, or nearly ripe, and having a tendency to ripen after being taken from the tree. That case is cited by the defendant, but contains nothing instructive on the questions involved here. The defendant was under no obligation to accept the plaintiff’s goods, if not merchantable, but he passed on this question when he accepted and made them his own. It will not do to approve of goods to obtain possession of them, and disapprove of them afterwards either to avoid paying for them, or for purpose of reclamation. Where an executory contract for the sale of material to be manufactured into articles of merchandise is with warranty of its fitness for the purpose intended, the vendee upon receipt is not bound to apply tests before using; but if defects, not open and visible, are thereafter discovered, which amount to a breach of the warranty, he has his remedy thereon, Dounce v. Dow, 57 N. Y., 16, and a vendor who gives such a warranty is subject to the same rule, Milburn v. Belloni, 39 N. Y., 53 but no such warranty accompanied the sale of the wine in this case, and as a necessary sequence the rules announced in those cases have no application.

It has been urged that the defect in quality was hidden and buried in the wine, and, therefore, not discoverable, and that the effect of the examination, therefore, simply relieved the vendor from defects that were open and visible. Day v. Pool, 52 N. Y., 416; Parks v. Morris Ax & T. Co., 54 id., 586; Birdseye v. Frost, 34 Barb., 367. This is undoubtedly the rule applicable to warranty of quality or of fitness where the defects are of a recondite character. There are two reasons why it is not applicable here :

First. The objection to the wine is that it was not ripe and was bottled before it had effectually gone through the proper process of fermentation, in consequence of which it became vinegary and sour.

The chemist produced by the defendant made an analysis in July, 1887, of three small samples of the wine, and as a result pointed out the defects stated. He testified that in his opinion the germs of secondary fermentation could have been discovered as far back as the date of the contract (April 28, 1887), by any person accustomed to drinking wine, as it must have been at that time insipid and flat. It is clear therefore that even if the defect was occult, it was at once perceivable to the taste of an experienced person, and as tasting is the most common method of testing wines, an examination with a view to purchase would at once have disclosed the defect complained of, and if three small samples furnished sufficient to condemn the bulk of the wine in July, 1887, it ought to have furnished enough to condemn it three months before; so it is manifest that the defect was not of the latent character which survives acceptance. But the defendant insists that the wine was not “ ripe ” and therefore not “ merchantable ” at the time of sale, within the meaning of that term as applied in the corn case, supra.

In that, case the vendee refused to receive the corn because it was not ripe and sued the vendor for not delivering the commodity he agreed to deliver, and that is what' the defendant here might have done, if he exercised the care the vendee in that case did; and such as ordinary business men generally do. The defect required no especial skill or chemical analysis to detect, for it might have been discovered by any one examining the wine with a view to purchasing it.

The defect was imputable to the manufacturer and not to the vendor, but might have been' warranted against by him in a manner that would have survived the acceptance, but no such warranty was exacted or given.

Second. The so-called warranty is, as the court in Reed v. Randall, supra, and kindred cases held, nothing more or less than an agreement to deliver a certain commodity. If the vendor undertakes to deliver anything else, the vendee may refuse to accept, and sue the vendor for non-performance of his contract. If, however, the vendee chooses to accept the thing delivered (if there be no fraud, latent defect or it does not require skill to detect the difference), the vendee has by his acceptance concluded himself by his own act, and cannot thereafter be allowed to make reclamation against the ■ vendor. This seems businesslike and proper.

The defendant did discover from the examination he made that some of the casks were stained with wine marks, and the plaintiff allowed for breakage twenty-three dollars before the condition of the goods was approved. If the defendant had at the same time discovered the defect now complained of, and he ought to have done so, the plaintiff might have made reclamation on the manufacturer, and some satisfactory deduction to the defendant, and the controversy now going on might have been avoided.

Business men must pursue business methods with ordinary ■care and intelligence, or take the consequences and charge the loss to experience. Under our interpretation of the contract, and the rights and obligations of the parties thereunder, it becomes unnecessary to consider any of the other questions presented on the appeal, for it follows that the judgment must be reversed, the order of reference vacated and a new trial ordered, with costs to the appellant, to abide the event.

Sedgwick, Ch. J., and Me Adam, J., concur.


author: Per Curiam.

text:
    John G. Pegram et al., Trustees, App’lt, v. The New York El. R. R. Co. et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed June 1, 1891.)

    Practice—Striking cause from equity calendar
    In an action for an injunction against an elevated railway company continuing to use the easements of light, air and access appurtent to plaintiff’s premises and for damages, it appeared that theretofore plaintiff had conveyed the premisos in question by a deed which reserved to him all damages suffered or to be suffered to the property from the infringement of the easement by defendants. Held, that the cause was properly stricken from the equity calendar upon defendants’ motion, as the only objection made to it was that the right to atrial by jury had been waived by defendants, they knowing of the existence of the deed, and this being denied.
    Appeal by plaintiff from an order striking the case from the ■calendar of the equity term of the court

      Roger Foster, for app’lts; Edward G. James, for resp’ts.
   Per Curiam.

—The action was for an injunction against the •defendants continuing to use the easements of light, air and access appurtenant to plaintiff’s premises as the complaint stated, and for damages. The issues came on for trial at an equity term. In the course of the trial, the plaintiff as a witness on the plaintiff’s opening case and on cross-examination for defendants, testified that plaintiffs had sold, a year before, the said premises to which the easements were appurtenant. The conveyance of the property was produced and proved. It contained a-reservation, so-called, to the plaintiff, the grantors, of all damages suffered or to be suffered to the property from the infringement of the easements by the defendants, and also, as was claimed by the plaint-' iff’s counsel, a reservation of the easements themselves. Thereupon it was claimed by defendants’ counsel that, it appearing that the plaintiff had conveyed the abutting property, they had no equitable right to an injunction, and the action, upon that fact appearing, was one at law for damages only, and the defendants had a right to trial by jury which they then claimed.

The plaintiff’s counsel made but one objection to the demand of the defendants. They interposed no other objections, if any there are, and such cannot be urged upon appéal. The objection urged was, that the right to a trial by jury had been waived by the defendants, the defendants’ counsel having stated that the existence of this deed was known by them before the trial was begun. This was denied by counsel for defendants. The deed was made July 8, 1889. It does not appear that the defendants knew of the deed before it was produced' upon the trial or before the trial had begun. The defendants’ counsel had not stated that the deed was known by them before the trial was begun.

The court announced its determination to strike the case.from the equity calendar, with leave to the plaintiffs to make such motion as they saw fit. and if they did not see fit to make such motion, to notice the case for trial before a jury. The order made simply struck the cause from the equity term calendar.

The action of the court was correct so far as was concerned the only objection made to it by the plaintiffs.

The order appealed from is affirmed, with ten dollars costs.

Sedgwick, Ch. J., Freedman and Me Ad am, JJ., concur.


text:
    Edward H. Ammidon et al., Resp’ts, v. The Century Rubber Company, App’lts.

      (New York Superior Court, General Term,

      Filed June 1, 1891.)

    Bill of pabticulabs—Demand not complied with—Stbikino out ANSWEB.
    Where an application is made that the defendants serve a further bill of particulars, and it appears that they are not in a situation to answer the demand, and do not possess theofacts, it is error to strike out their answer.
    The action is in replevin to recover the possession of certain goods, of the value of about $7,000, which were sold by the plaintiffs and delivered by them to the defendants, Carpenter and Lockwood, upon the faith of certain representations as to their financial standing and condition, which turned out to be fraudulent. Part of the goods have been made up into 832 waterproof garments, identified in the complaint by certain numbers. The plaintiffs allege that the Century Rubber Company, a domestic corporation which is joined as a co-defendant, was the sole agent of the defendant Carpenter, and as such obtained from him the possession of the property and thereafter refused to deliver it up to the plaintiff after demand made therefor, and after the plaintiffs had elected to rescind for the fraud and their title by such rescission had become known to all of the defendants.
    The answer of the Century Rubber Company is substantially a denial of the material allegations of the complaint, and an affirmative plea in defense, that the goods formed a portion of divers consignments made by Carpenter and Lockwood to. the Rubber-Company, upon which it had made advances; and that on account of such advances there is now due $2,452.65, and that the Rubber-Company acquired a special property in the goods, with the right to retain them until the said sum was fully paid to it. The contention of the Rubber Company is, that whether Carpenter and Lockwood were bona fide or fraudulent vendees of the goods, that it, by advances made in good faith and without knowledge of any wrong-doing on the part of the vendees, acquired a valid lien upon the goods, with the right to retain them until they are reimbursed therefor.
    The plaintiffs, by way of reply, deny every allegation of the answer respecting the advances or Hen. The plaintiffs demanded a bill of particulars of the alleged advances, in response to which the Century Rubber Company served the following:
    93 Peasant Garments.......................... $279 00
    127 “ “ 254 00
    54 “ “ 310 50
    113 Clermont “ 254 25
    54 “ “ 175 50
    99 “ . “ 643 50
    75 Edinboro “ 168 75
    8 “ “ .......................... 26 00
    124 Peasant shirred Garments.................... 248 00
    10 “ “ “ .................... 57 50
    65 Garments ................................. 767 00
    3 “ 6 75
    7 “ 22 75
    $3,213 50
    The plaintiff thereupon moved for a further bill, and Judge Freedman directed that the Rubber Company serve a bill of particulars showing the date of each and every consignment to said company of the goods in suit, or any of them; the sum and sums advanced upon each consignment, and the date or dates of each and every advance upon the goods contained in such consignment. As a compliance with this order, the Rubber Company served a further bill of particulars, as follows :
    “ During the months of November and December, 1889, and January and February, 1890, the firm of C. C. Carpenter consigned to the defendant, The • Century Rubber Company a large quantity of manufactured garments, composed in part of the material which is the subject matter of the plaintiffs’ claim.
    “ The merchandise so consigned consisted of the following:
    “November 1st, 273 rubber garments.”
    Then follow eighty-one similar items, with dates and particulars as above.
    Then comes this statement:

      “ Upon this merchandise the defendant, The Century Rubber Company advanced to the said firm of C. C. Carpenter, the following sums upon the following dates respectively :
    “1889, November 2d, To cash, $1,500.”
    Then follow sixty-five similar items with aates and particulars as above.
    Then comes this statement:
    “ The consignments of merchandise above referred to were all made within the period of the four months above stated, but from the large quantity of such consignments and from the altered character of the goods in their manufactured state, it is wholly impossible for the defendant to particularize upon what precise day during the said period any precise portion of the plaintiffs’ alleged goods was received by the defendant, but it was all received within the period above mentioned, and all forms a part of the above-mentioned enumeration of manufactured garments.”
    The plaintiff not having received an account of the sums advanced on each particular consignment, with the date of such consignment and the specific advance thereon, moved for a further bill giving this particular information. In opposition to the motion the defendant relied on the facts stated in the following affidavit :
    “ Sigmund Bendit, being duly sworn, says that he is the secretary and treasurer of The Century Rubber Company, the defendant herein; that, in addition to the two bills of particulars already prepared by him, he is utterly unable to furnish any particulars in the matter further than those already submitted; that he has made a thorough examination of his books, but is not able therefrom to add anything to what the bills of particulars already served contain.
    “Venue and jurat.”
    Notwithstanding this affidavit, Judge Bugro required the defendant to furnish the required account within ten days, or in default thereof that the answer of the Rubber Company be' stricken out.
    The Rubber Company appeals from the orcier so made.

      Horwitz & Herschfield, for app’lt; A. II. Ammidon, for resp’t.
   McAdam, J.

—The plaintiffs are evidently proceeding upon the theory that the goods though fraudulently purchased by Carpenter and Lockwood cannot be taken from the rubber company if it in good faith made advances on the security thereof. They claim however that goods cannot be held for advances generally or a precedent debt, and their object in insisting upon the last bill ordered is to enable them to determine whether the lien asserted is for a precedent debt, advances generally, or for specific advances on particular consignments. This could be decided if the rubber1 company specified separately each consignment with the special advance made thereon. This course would also enable the court to see at a glance the precise question to be determined. Courts are liberal in requiring bills of particulars as a sort of curative aid in the administration of justice by preventing surprise and giving each party a reasonable opportunity to produce his proofs and to meet and sift those of his adversary, Dwight v. Germania Co., 84 N. Y., 493; Tilton v. Beecher,, 59 id., 176; People v. Tweed, 63 id., 194. The inconvenience of furnishing the information is no answer to the application. Inability to furnish it may form a complete answer. 2 Am. and Eng. Enc. of Law, 247; Chandler v. Stevens, 2 Month. L. Bul., 5. To this phase of the question we must give our attention.

' The plaintiffs are seeking information concerning transactions between the Rubber Company on the one hand and Carpenter and Lockwood on the other. It is fair to assume that while those transactions continued, the Rubber Company had no anticipation, that the information now sought would be required. That they kept their accounts in a general way, crediting each consignment as it came in and charging Carpenter and Lockwood with the advances as they were from time to time made. Ordinarily that system of book-keeping would suffice.

The Rubber Company kept on making advances as goods came in, taking care at all times that the security exceeded the sums advanced. This system would not require a separate entry for each consignment, nor an entry of a specific advance thereon. The Rubber Company, by the affidavit of its treasurer, proves this in effect when he swears that “ he is utterly unable to furnish any particulars in the matter further than he has already furnished ; that he has made a thorough examination of his books, but he is not able to add anything to what the bills of particulars already served contain.” If the Rubber Company cannot give a more particularized bill than it has already given, it is certainly not in furtherance of justice to strike out its defense and refuse it a hearing when the action is called for trial. The law never requires a party to do an impossible thing under the penalty of being denied a hearing in defense of its right to liberty or property. Lex non cogit ad impossibilia. In Wigand v. De Jonge, 18 Hun, 405, the court held that “ if it appears that the parties fi’om whom further particulars are asked are not in a situation to answer the demand, and do not possess the facts, then, indeed, is presented a plain case for a refusal of the order.” This is as it should be. See Broom’s Legal Maxims, 242.

Suppose a merchant loses his books by fire, larceny or other cause, is he to be denied his day in court because he cannot particularize his account ? Certainly not. Nor is he to be so deprived because his system of bookkeeping does not enable him to divide up his accounts to suit contingencies he never expected to meet. An illiterate man who keeps accounts according to a method of his own is not to be deprived of justice because his system does not enable him to give an account with the accuracy or particularity a skilled bookkeeper might have given if he had had charge of the business. In all these cases the explanation is to go to the jury, and in the light of their best judgment they are to determine the facts with reference to their inherent probability or improbability, in view of the situation of the party, his systems and methods.

The Eubber Company proves that it cannot give the additional information required, and there is no evidence to the contrary. Under such circumstances a proper case was presented for denying the plaintiff’s application. To sustain the order appealed from means that the defendant’s answer is to be stricken out, and that it must lose its advances amounting to $2,452.65, simply because it did not keep books or accounts to meet a contingency it was under no obligation to expect. It will not do to say that if the defendant cannot give the information now it cannot furnish it on the trial, and that it might as well be defeated now as then.

The Eubber Company may be able to prove by Carpenter and Lockwood, or by their books or bookkeeper, all that is necessary to prove in defense. The law gives it the privilege of compelling Carpenter and Lockwood, and their bookkeeper to appear, and of requiring them to produce their books in aid óf the Eubber Company’s defense. We cannot hold in advance how far this evidence may go or what it will prove.

These things should be ascertained at the trial, which is a constitutional right, and not upon mere motion, in advance of it. The defendant may have no means of securing this information or evidence except at the trial, and he is not to be deprived of the opportunity of obtaining it. Bills of particulars may be ordered to aid the administration of justice, but never where the direction may tend to defeat, jeopardize or impair it. A bill of particulars is not matter of right, is a mere creature of the court, and is no part of the record. Blunt v. Cooke, 4 Man. and Giran., 458. The court must exercise a wise discretion in granting or withholding it. This appeal is a continuation of the motion in the same court, and we are called upon to adopt the discretion of the special term judge or to reject it and substitute our own.

In the analogous proceeding to compel the adverse party to exhibit a document or serve a copy, it is a complete answer to the motion that the party is unable to do either. 4 Abb. Pr., 233; id., 41; 8 How. Pr., 89; I Duer, 652; 25 How. Pr., 522; 1 Robt., 681; 16 Abb. Pr., 1; 20 W. Dig., 85. A bill of particulars is a mere amplification of the pleadings, intended to furnish facts, not evidence. If the pleading is sufficient on its face to entitle the party to a trial, he cannot be deprived of it simply because he does not particularize the facts to suit the pleasure of his adversary, if the refusal to do so be not capricious but real, resulting from positive inability and not from contumacy.

It will not do to say that the defendant ought to have prepared itself for the present condition of things. The more appropriate question to ask is whether it is prepared for the emergency. The court must act on. things as they are, and not as they ought to be, or as the plaintiffs would like to have them.

For these reasons, and on the ground of the inability of the defendant to give the information required, the order appealéd from must be reversed and the application for a further bill of particulars denied, with costs to the appellant, to abide the event.

Sedgwick, Ch. J., and Freedman, J., concur.