text:
    TIMOTHY W. GOODING, Appellant, v. SPENCER A. BROWN and Others, Respondents.

      Additional allowance — when the General Term will not reverse an order resting in the discretion of the court below — the amount involved may be considered in passing upon the application.

    ■Where an order granting to the defendants an extra allowance, under section 325& of the Code of Civil Procedure, is made by the justice before whom the action was tried, and the order recites that it was made “ on the pleadings, evidence, findings and decision of the court, statements and affidavits of counsel and other papers,” the court at General Term will not reverse the order, in the absence of an abuse of the discretionary powers vested in the court,'below, even though the papers presented on the appeal do not show that the case was a difficult or extraordinary one, as the facts necessary to show that it was" of such a character may have been orally presented to the court below.
    In determining whether or not an additional allowance should be granted under the said section the amount involved in the action may be considered; as the fact that a large amount depends upon its decision increases the anxiety and responsibility of the attorney and justifies the employment of eminent counsel.
    Appeal from an order of the Ontario Special Term, giving to the defendants an additional allowance of $500 costs.

      J. Henry Metcalf and W. F. Cogswell, for the appellant.

      E. M. Morse and E. C. Hapkam, for the respondents.

       See ante, pagt 148.

   Bradley, J.:

The action is in the nature of specific performance against the heirs and next of kin of Wells Gooding,' deceased, of an oral agreement made between him and the plaintiff, that the survivor of them should take by devise and bequest the property of the other, subject only to the bequest by Wells of $10,000 to their sister Angeline. They duly made, pursuant to. the arrangement, their wills respectively, and deposited them with their attorney. After-wards the sister died, and thereafter Wells Gooding called for, received, and took away his will. He afterwards died, and the trial court properly found that he revoked his will by destroying it, and died intestate. The complaint was dismissed on the merits, and on defendants’ motion they were, by order of the court, given $500 additional allowance of costs. This appeal is taken from that ■order. The question is whether the case was difficult and extraordinary within the meaning of the statute. (Code Civil Pro., § 3253.) The trial in court did not occupy over one day. No testimony was given on the part of the defendants. The facts were few and simple. They showed an executory oral agreement to the effect that they respectively should make their wills for the benefit of the survivor. It was an agreement that the one first deceased should convey and transfer by devise and bequest his property to the survivor. Practically and in legal effect it was an agreement to sell property, real and personal and vest title in that manner. (Parsell v. Stryker, 41 N. Y., 486.) The property was mainly owned by those parties as tenants in common and amounted in value to about $100,000. The agreement was clearly within the statute of frauds and void. And there was no part performance, within the meaning of that term as applied to such agreements, to enable the plaintiff to require its execution. The statute puts a limitation on the power of the court to award additional allowance of costs to the prevailing party, and thus permits it only when the case is difficult and extraordinary. That term imports something more and other than usual, common .and ordinary in respect to the labor and skill required, or in the time occupied in the preparation or trial of the case, or both. (Fox v. Gould, 5 How., 278 ; Fox v. Fox, 22 id., 454, 469; S. C., 24 id., 385 ; Duncan v. DeWitt, 7 Hun, 184.

The determination of the case required the application of only well settled principles of law to the facts, and about the facts there was no dispute on the trial. There was no new question of construction or application of the statute of frauds, and none that did not come within the principle of repeated adjudications of the courts of this State. The questions, therefore, may arise: First. May the amount involved in the controversy characterize the case as difficult and extraordinary ? Second. In view of the magnitude of the case in that respect, and by reason of it, may the apprehension of the party and his attorney and counsel, and the unusual care and labor thus occasioned, as well as eminent legal skill, which, in consequence, is put into the case, enable the court to treat it as within the meaning of the statute and entitled to the designation of difficult and extraordinary; or, third, must the court be¡ governed by the quality of the questions actually involved and the quality of tlie labor and skill actually required in its judgment, to take charge of the preparation and trial ?

The decisions of the court are somewhat numerous under that and a similar statute, but they, as a whole, give no very well defined interpretation and application of its provisions. The papers on which this appeal is heard, do not show what has been done in the case outside of its trial, but on the argument counsel for the defendants stated something of the care and labor done and the aid they had sought and obtained from eminent counsel, etc.

In Sickles v. Richardson (14 Hun, 110) the action was to have adjudged void bonds of a' railroad company of the nomiual value of $3,574,000. The court gave an allowance of $2,000. The only question presented on the appeal seems to have been whether there was any basis for computation of the allowance.

In Vilmar v. Schall (61 N. Y., 564) the question of basis of computation only was presented, and in Bockes v. Hathorn (17 Hun, 87) the allowance was said to have been made by consent of the attorneys.

In People v. A. and V. R. R. Co. (16 Abb., 465), the case involved large interests, and presented difficult questions of law. So far as relates to the questions of law presented, and the time occupied in the trial of this case, it does not seem to us to come within fáir meaning of the term difficult ■ and extraordinary. ' The judge who heard and decided the case held the court which made the order. He had means, not necessarily presented by the papers here, of acting advisedly in reference to all the circumstances which might bear upon the question. His discretion will not be deemed improperly exercised unless it clearly so appears. 1‡ has been said by the court that the determination of this question “involves so many considerations which are addressed to’the discretion of the judge, that the appellate court rarely interferes.” (Bryon v. Durrie, 8 N. Y. W. Dig., 57; Morrison v. Agate, 9 id., 286, which is approvingly repeated in Tolman v. S. B. and N. Y. R. R. Co., 31 Hun, 403.) The purpose of this provision of the statute is indemnity to the successful party for the expense that he, in such a ease, may incur in its proseeutiou or defense beyond those usually necessary. (People v. N. Y. C. R. R. Co., 29 N. Y., 426; Burke v. Candee, 63 Barb., 555.) The amount involved in this ease very likely gave to the defendants an anxiety, and to their attorney a responsibility felt and appreciated, which would not be had or assumed in a controversy relating to a case of less magnitude in that respect. That furnishes a reason for bringing to the mmagement of a case more care, and the advice and skill of eminent counsel, and, as a result, increased and unusual expense to the party. Some force may be given to the importance of a case when it may be seen that the amount involved fairly justified the increased expense of obtaining such advice and counsel in good faith employed. There may be an apprehended or apparent, as distinguished from a real difficulty about a case as developed at the trial. We are not advised of the difficulties, if any were apprehended by the defense. Nor do we hold that such apprehension would bring the case within the statute.

It is difficult to define and declare any inflexible rule of application of this statute in view of the use of it which has been made . by the courts. If this order had been made by any other than the trial judge, we should, on the record and papers before us, be inclined to reverse the order. But while the discretion of a court has its limitations, the review of that discretion is so treated by the practice in such cases that orders of that class will not usually be reversed, unless it can be seen that there has been an abuse of that discretion. That we cannot say in this case. The counsel for the respondents said on the argument that the statement of the circumstances (which were referred to on the argument here) was made without affidavit before the court on the motibn at Special Term by the consent of the counsel for the plaintiff. The trial judge in making this order, it will be assumed, derived from the trial information which may have aided his judgment on the motion. In such case it seems not to be the rule that strict and sole reliance must be had on the papers on review of orders of this character. (Burke v. Candee, 63 Barb., 555 ; Tolman v. S. B. and N. Y. R. R. Co., 31 Hun, 403.)

In the latter case Hardin, J., says: “ There is nothing to show that the case was not both difficult and extraordinary. The usual presumption obtains that the order is correct unless the contrary appears. * * * The order may have been granted upon proofs more extensive even than we find in the appeal book.”

It will be observed that here, as there, the order does not particularly recite the papers and proofs on which the motion was heard and order granted. But it in general terms evidently embraces statements and papers not appearing here. The order states that the motion was made “ on the pleadings, evidence, findings and decision of the court, statements and affidavits of counsel and other papers.” We cannot say that the facts presented to the Special Term on the motion did not justify the conclusion there that the case came within the statute. If therefore it be assumed that the record and papers before us do not show that the ease was difficult and extraordinary, it is not necessarily excluded from the operation-of the statute. The presumption must go in support of the order of the Special Term until the contrary is established.

The order should be affirmed.

Haight, Angle and Childs, JJ., concur.

Order granting additional allowance affirmed,-without costs.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    In the Matter of the Application of the BUFFALO, NEW YORK AND PHILADELPHIA RAILROAD COMPANY, Respondent, to Appraise Certain Lands, v. GILES B. OVERTON, Appellant.

      Proceedings by a raib'oad company to acquire tille to land — a right of way appurtenant to a lot may be condemned — the right of the public to use a street cannot be sel up as a defense by a lot owner whose rights are to be appraised.

    When the village of Olean was organized the territory comprised within its limits was delineated on a map, upon which blocks and streets were shown. Certain of these blocks, with the intervening strips designated as streets, were sold by the owner to the petitioner, a railroad company. Prior to that time other lots had been conveyed to different persons by deeds, which referred to the map in such manner as to give them private rights of passage over the said streets. The portions of the streets included within the land sold to the petitioner had never been opened or worked by the public, but it was claimed by the appellant, one of the prior purchasers of lots,'that the said streets had been accepted as public streets by the village, and that it had been directed by a resolution of its board of trustees that they should be opened.

      Held, that proceedings might be instituted by the railroad company to have commissioners appointed to appraise the damages to be sustained by the prior purchasers of lots, by reason of the'extinguishment of their private rights of way over the said streets.
    That the owners of the said lots could not set up as a defense to such proceedings any right or interest which the village or the public might have in such streets, as such public interest would be in no way affected by the.adjudication to be ■ made.
    Appeal from an order of the Erie Special Term, denying a motion of the appellant to dismiss the petition and proceedings of the railroad company, and to vacate the order staying his proceedings in an action brought by him. against the company, and appoint-. ing commissioners to appraise damages.

      George H. Phelps, for the appellant.

      G. 8. Gary, for the respondent.
   Bradley, J.:

This is a proceeding by the Buffalo, New York and Philadelphia Railroad Company, by petition, pursuant to Laws 1850, chapter 140, section 21, as amended by Laws 1881, chapter 649, to perfect its title to certain lands for the purposes of its railroad. The petition alleges that the petitioner purchased lands situated in the village of Olean, county of Cattaraugus; that embraced within it were three strips of land lying in a north and south course, sixty feet in width, described on the map or plat of the village as parts of Fourth, Fifth and Sixth streets; that Giles B. Overton, the appellant, owns lots situated between such Fifth and Sixth streets, and some distance south from the lands in question, and he has comrdenced an action against the petitioner and the village of Olean, claiming, and to require, that those streets should be opened.

The prayer of the petition is that commissioners be appointed to ascertain and appraise the compensation, if any, to be made to the owners or persons interested in ¿he real estate proposed to be. taken.

The appellant answered the petition, alleging the dedication cf those strips as. streets to the public, the acceptance of them as such by the village authorities, and his ownership, improvement and occupation of lots between Fifth and Sixth streets, and fronting on both, and the necessity or importance of their preservation against the attempted obstruction of them by the petitioner. The matters were referred to a referee, who made his report, and after.ward the matter came on to a hearing, upon the petition, an swerand referee’s report, and a motion was then made on behalf of the appellant to dismiss the petition and proceedings and vacate the stay of plaintiff ’s proceedings in his action (which had before been granted in this proceeding). The motion was, by the order of the court, denied, and commissioners appointed according to the prayer of the petition. From that order this appeal is taken.

The evidence taken by the referee does not appear in the appeal book. The facts so far as applicable upon which the appeal is to be determined are found in his report. He finds that the company requires for the purposes of its incorporation all the lands described in the petition, including the strips before mentioned, that the company was unable to agree with the appellant for the acquisition of the land, that when the village of Olean was organized the strips in question were delineated on a map which had been made as the village plat, as parts of Fourth, Fifth and Sixth streets, on which map were also described lines dividing the plat into blocks and lots, that afterwards, in 1869, the lands in question and those of the appellant and other lands adjacent were conveyed by one Sewell to Blakeslee by deed, designating them by blocks and lots, as described by numbers on the map referred to, and by the deed the grantors intention was expressed to convey tire lots so described together with his interest, if any, in the streets adjoining them. These lots so conveyed appeared by the map to be bounded by streets amongst which were those in question, that on the 21th day of Hay, 1877, the board of trustees of the village of Olean passed a resolution directing that Fourth, Fifth and Sixth streets be opened, that nothing has been done towards opening Fourth and Fifth streets, and that nothing for that purpose has been done on Sixth street, except that in the year 1877 some, work was done upon a small portion — about 300 feet — of that street by way of removing some roots and stumps, and cleaning a wagon path that distance; that the parts of those streets described in the petition are situated between Wayne and Reed street; that no part of such portions has ever been opened, or worked, or used, traveled or passable by the public as streets, or parts of streets, and that at the time of the commencement of this proceeding there was no public street or easement .over the lands described in the petition as parts of Fourth, Fifth and Sixth streets, or any part of them, and that in the year 1881 Blakeslee sold to the appellant certain lots in block 40 according to the map, bounding them on the west by Sixth street and east by Fifth street. These premises of the appellant it appears .are some distance south from those described in the petition. And he has considerably improved his lots and occupies them as a place ■of residence. The company, in 1883, took conveyance from Blakeslee of the premises in question to which it claims title.

The referee, as conclusions of law, determined that the right of the village authorities .to open and work Fourth, Fifth and Sixth •streets, had ceased before the proceeding had commenced; that there was then no public street, highway, easement, or right of way over any of the lands described in the petition, and that the appellant has a private right of way over the strips of land described therein as parts of Fifth and Sixth streets.

The contention, on the part of the appellant, relates to these streets described on' the map referred to, and especially to those designated as Fifth and Sixth streets, and is that the petitioner has no right to appropriate them for the purposes of the structures for its railroad. In the conveyances, the owners by referring to the map and to these streets, and bounding the premises by them, dedicated those strips so designated as streets, to the public as such, and, as between them and their grantees, and those holding, under the latter, they were streets or easements without any power of revocation in that respect, whether accepted by the municipal authorities or not. Those, as streets, pursuant to such dedication, were appurtenant to the premises conveyed and 'as between the parties and their successors in interest continued so. (Livingston v. The Mayor, 8 Wend., 85; Wyman v. The Mayor, 11 id., 486; Bissell v. N. Y. C. R. R. Co., 23 N. Y., 62, 64; Cox v. James, 45 id., 557; White's Bank v. Nichols, 64 id., 73.) But until accepted by the public constituted authorities as such, they do not become public highways or streets, but the intermediate right is that of the owners of the premises affected by them, and have the nature of private easements, subject to become public by effectual acceptance. (City of Oswego v. Oswego Conal Co., 6 N. Y., 257; Fonda v. Borst, 2 Abb. Ct. App. Dec., 155.) And after they become public highways or streets, they cannot, under a general power to exercise the right of eminent domain, be so appropriated as to destroy them or defeat their use as such. They cannot, by virtue of such general power in iwoitum, be taken from one public use to supply another. (In re Boston and Albany R. R. Co., 53 N. Y., 574; Springfield v. Conn. R. R. Co., 4 Cush., 63.) Those streets have not been opened or reduced to public use, nor are they capable in their present condition of being so used. The private easement of the abutting property owners is established; that alone does not necessarily interrupt the appropriation to a public use, inconsistent with that of a public highway or street. The appellant is such owner and has the right to use the fifth and sixth streets designated on the map. Whether the acceptance by the municipal authorities of Olean, in 1877, had the effect to make them public streets, or whether the statute applies to such a case and rendered the acceptance ineffectual by the six years’ omission to proceed to open the streets (1 R. S., 520, § 99, as amended by Laws 1861, chap. 311 ; Ludlow v. Oswego, 25 Hun, 260), is not important in the view taken here, and we therefore give those questions no consideration and express no opinion upon them. This proceeding relates exclusively to individual or private rights of property and, so far as they are legitimately affected by the appropriation in view, to ascertain what compensation the appellant and others coming within the prayer of the petition are entitled to. The rights of the public are in no sense involved in the proceeding. If they are in the way of making the result of this effectual, the petitioner of course will take no benefit from it. The company has chosen to dispose of the private interests now, and it is not seen how any objection is properly available to the order of proceeding. That does not seem to be a question here. (In re N. Y. C. and H.R.R. R. Co., 77 N. Y., 248.) If the petitioner has no right as against the public to appropriate those designated streets to the purpose designed, it will proceed, if at all, at its peril. The constituted public authorities are not, in such case, without remedy, nor is the appellant, in another and different proceeding or action, to cause to be given protection to and relief against the unlawful invasion of the rights of the public. In proceedings of this character a stay, during its pendency, of proceedings in an action brought by a party to such proceedings against the petitioner for relief in conflict with that sought in the proceeding, is contemplated by and provided for by the statute.

We are not advised fully of the purpose of the action brought by the appellant against the company, or of the relief there demanded, but are required to and do assume that it came within the provision of the statute, which affords the authority, to grant the stay, and that the power in that respect was properly exercised by the court. And no reason appears for interference on this review with the order in that respect. ,

The order should be affirmed.

Angle and Childs, JJ., concurred; Haight, J., not sitting.

Order affirmed, without costs.


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    In the Matter of the Petition of GEORGE FULLER, as Administrator, etc., for a Resale of Lands in the Case of BENJAMIN C. BROWN v. LUTHER BROWN and RACHEL BROWN.

      Sale under a decree of foreclosure — when it wM he set aside upon the application of a creditor of the mortgagor.

    June 1, 1878, Luther C. Brown gave a mortgage for $1,200 on real estate then owned by him to one Fanny M. Coon, who thereafter assigned it to the wife of Luther, who subsequently assigned it to her son Benjamin. In an action to foreclose the same, commenced by him in May, 1880, the premises were sold for $1,534.85, that being the amount due on the mortgage and for costs, to the said Benjamin and his brother Nathan. August 6,1881, the two brothers gave a mortgage upon the place to one Powis for $2,000, borrowed money, and on August 8, 1881, they gave another mortgage to their mother for $1,465.77, that being the amout due to her for the assignment of her former mortgage, October 28, 1880, one Fuller recovered a judgment against Luther O. Brown for $226.79, upon which an execution was issued and returned unsatisfied. In May, 1884, Fuller presented a petition praying that the foreclosure sale be vacated and a resale he had.

      J2eld, that it was proper for the court to grant the order, but that the sale should .be vacated only as to the equity of redemption of the purchasers and the inchoate right of dower of their wives, and that the premises should be sold subject to the two mortgages given by the purchasers; the costs and expenses of the former sale to be paid to the purchasers thereat, out of the proceeds of the resale.

      Appeal from an order made at the Erie Special Term, directing a resale of premises.
    Lnther G. Brown, being the owner of a farm situate in the town of Garitón, county of Orleans, containing 121-J acres, made a mortgage on the premises of date June 1, 1878, to Fanny M. Goon, to secure the payment of $1,200. The mortgage was afterwards assigned to Rachel Brown, the. wife of the mortgagor, and she assigned it to Benjamin O. Brown, her son. He in May, 1880, commenced an action against Luther and. Rachel Brown for the foreclosure of the mortgage, in which a decree was obtained, in the usual form, directing the sale of the premises, and on the 20th day of August, 1880, the premises were sold pursuant to that decree and purchased by Benjamin G. Brown and his brother Nathan Brown, for the sum of $1,584.85, that being the amount due on the mortgage and the costs and expenses of the action and sale, and the farm was conveyed to them by the referee making the sale, and his report was made and filed. On the 6th day of August, 1881, the purchasers made to Henry Powis a mortgage on the premises to secure the payment of $2,000 borrowed of him, and on the eighth of the same month they made to their mother, Rachel Brown, a mortgage on the same premises, to secure the payment to her of $1,465.75, the amount due for the assignment made by her of the mortgage. On the 28th day of October, 1880, George Fuller, as administrator, etc., of Oliver McKenna, deceased, recovered a judgment in this court against Luther Brown for $226.79, which was then docketed in the county of Orleans, upon which execution against the property of the judgment-debtor was issued, and in November, 1880, returned wholly unsatisfied. In May, 1884, this proceeding was commenced by the petition of George Fuller, as such administrator, to vacate tlie sale made of the premises, and for a resale of them pursuant to the decree of foreclosure before mentioned. Before then, and in April, 1884, Powis had died, leaving his will, by which he nominated "W. Martin Jones as executor of it, and the will had been admitted to probate and letters testamentary issued to him. The executor was not served with notice of this proceeding nor did he appear in it. At the Erie Special Term of August, 1884, an order was made that the sale be vacated, “reserving and excepting from the effect of the order the lien and rights created by the mortgages,” to Powis and Rachel Brown, and that a resale of the premises be made subject to them.
    Prom the whole of this order Benjamin O. Brown and Nathan Brown, and their wives appeal. The administrator, of Rachel Brown, deceased, appeals from the order, except that portion thereof which, by its terms, saves her rights as mortgagee.

      Irvmg M. Thompson, for the appellants.

      John Qwnneen, for the petitioner, respondent.
   Bradley, J.:

The affidavits in' support of, and in opposition to the motion, are both numerous and voluminous; and, as a whole, the facts presented fairly justified the relief given by the order, unless there was some legal difficulty in the way to that result. The contention of the learned counsel for the appellants is : 1. That the respondent had no standing which would permit him to make the motion. And this is based upon the fact that he was not a party to the foreclosure action, and had no lien on the property. 2. That the intervening rights of the mortgagees are in the way to such relief on a motion. 3. Thac the one-year limitation applies to him; and, at all events, he was guilty of such laches as to defeat his application for relief. 4. That the proceedings in the foreclosure action, and of sale, were regular and fairly conducted, and that the sale will not be set aside and a resale ordered, for the reason merely that the estimated value of the property exceeded the amount for which it was sold.

The debt on which the judgment was recovered by the petitioner had been long standing against Luther Brown, but the judgment was not recovered until after the sale, so that it never became a lien on the premises, nor would he have been then entitled to share in the proceeds of the sale if there had been a surplus. The right to make a motion of this character is not confined to a party to a foreclosure action. The discretion of the court may be called into action by a person who has been legitimately prejudiced by the proceedings of the sale. (Am. Ins. Co. v. Oakley, 9 Paige, 259 ; Kellogg v. Howell, 62 Barb., 283; McCotter v. Jay, 30 N. Y., 80 ; Gould v. Mortimer, 26 How., 167.) The question arises whether this rule includes a person who has no lien on the premises at the time of the sale. By it the lien of his judgment is defeated, and if the sale was so conducted as ■ to unfairly produce in its result a less sum than it otherwise would, the estate of the mortgagor is reduced, and the means of collecting his judgment may be impaired or cut off. He has recovered a judgment which would become a lien if the sale were vacated, and he is interested in having the mortgagor’s property produce a sum sufficient to pay the judgment against him. Then the court has such control over its judgments that it may, and in a proper case will, in the exercise of its discretion, so regulate and set aside their execution as justice may seem to require for the protection of the rights of others. And there is no inflexible rule to govern the exercise of that discretion.

The motion' here is in the nature of an action in equity, and it is in that view that the rights of parties will be considered within the established principles of law which guide and govern courts in the administration of justice. The petitioner fairly comes within that relation to the mortgagor and his property, which enables him to present the inquiry to the court whether the proceedings to sell, and sale, were fairly conducted, and the property in question properly disposed of at the sale referred to.

In Goodell v. Harrington (76 N. Y., 548, 549) the party moving to set aside a sale and for resale had no lien upon the property sold, but had a judgment against the executrix of the will of the mortgagor who purchased, the property. The motion was granted at the Special Term and affirmed at General Term. In the opinion of the court Church, Ch. J., says: I am not aware of any rule of law requiring a specific lien upon the mortgaged premises to enable a person to apply for a resale. * * * He is therefore interested in preserving the fund from which alone he can obtain satisfaction of his judgment. The Supreme Court has control over its own judgments and the proceedings thereunder, and it may exercise this power at the instance of any person whose rights are injuriously affected by such proceedings.” There, as here, if the sale was permitted to stand there would be no fund to pay the judgment.

There seems to be no legal objection to the petitioner’s motion in this respect. The intervening rights of the mortgagees are not necessarily any interruption to the relief. Their rights can be as well provided for and protected in the order as by decree in an action. (Hale v. Clauson, 60 N. Y., 339, 341.) For that purpose and to save all questions the order should, perhaps, be so modified as to express distinctly that the vacation of the sale' has relation to the equity of redemption only, which is, perhaps, the legal import of the order of the Special Term as a whole. The rights of the mortgagees are then as fully protected as if the sale was not disturbed to any extent.

It seems clear that the statute limitation of one year has no application here. That applies to the parties to actions in the cases there mentioned. (Code Civil Pro., § 724.) And as a rule such statutes are not construed to embrace any case not within their terms. The question of laches and its effect are dependent upon the circumstances of each particular case involving the consideration of them. It would be more strictly applied as against a purchase in good faith by a stranger to the proceedings, than to a party privy to it and not a bona fide purchaser. Also when rights of third parties had intervened which would be affected by giving the relief. In this case there has been no substantial change in situation 'which will make the relief result to the prejudice of the purchasers. And in such cases the question of laches has less importance. (McMurray v. McMurray, 66 N. Y., 176, 181.) One of the purchasers says that he has expended $500 in making improvements on the premises, but they have had the use of them. And have obtained a loan of $2,000 which and their liability are protected by the mortgage on the farm.

In Lockwood v. McGuire (57 How., 266), it was assumed that the granting the relief would prejudice the rights of an intervening innocent mortgagee..

In Viele v. Judson (15 Hun, 328) equitable estoppel was properly applied for the protection of a bona fide mortgagee. In re Woolsey (95 N. Y., 135, 144) it was held that this question was within the discretion of this court.

In Depew v. Dewey (46 How., 441; 2 T. & C. 515) about sixteen years had elapsed, and the right of action to redeem was barred by the statute of limitations.

It appears that this matter was made the subject of an action cómmenced by the petitioner for like relief sometime before this proceeding was instituted, but how long before does not appear. It was merely shifted into and continued by the petition. In respect to the equity of redemption of.the purchasers, they cannot be treated as bona fide purchasers. They have not paid the purchase-money. (Jewett v. Palmer, 7 Johns. Ch., 65; Christie v. Bishop, 1 Barb. Ch., 105 ; Jackson v. Cadwell, 1 Cow., 622.) They gave their note to their mother for the amount of the mortgage and secured its payment by a mortgage on the premises, which, evidently, is adequate security for the payment of the amount. The costs and expenses of the foreclosure action and sale will be repaid to them if a resale is had. And because they are not bona fide purchasers, the fact that the sale was for an inadequate sum, is entitled to consideration on this motion. ■ It is only when the purchaser is a bona fide one that inadequacy of price paid, unless grossly so, may not alone be deemed sufficient to permit an order for a resale. (Billington v. Forbes, 10 Paige, 487; Am. Ins. Co. v. Oakley, 9 id., 259; Burchell v. Voorhis, 19 How, 247.) The sale was for a sum much .below the then value of the premises. The proofs presented by the affidavits show the value to have been from $6,000 to upward of $8,000. With due'allowance for the reduced prices for which judicial sales are frequently made, by reason of the necessity of providing means for immediate payment, the price bid for this property was very inadequate. The circumstances stated in the affidavits, on the part of the petitioner, are such as to impute to the parties to the foreclosure action, motives consistent only with a purpose to shift the title of the property from the father to the sons, and indicated that the foreclosure and sale may have been had for that purpose. Those charges and the alleged facts upon which they are based, as well as the imputation which might be inferred from them, are contradicted by the purchasers.

But the Special Term had them before it, and, so far as the matters stated in the affidavits and appeared by the proofs influenced the action of the court there, its discretion must be deemed to have been justified and fairly exercised. In this proceeding the transactions of giving the mortgage, and the assignments of it to Mrs. Brown and to Benjamin O. Brown, are entitled to no consideration, except so far as they reflect on the action and the motives of the parties to the suit in the transactions for, and of the sale after, the decree. The substantial relief granted by the order appealed from was justified. It does not in terms, but in effect is designed to direct that the costs and expenses of the sale in question should be first paid to those purchasers out of the proceeds of the resale; It should so direct. And the order should be further modified so as to direct that the sale be vacated only as to the equity of redemption of the purchasers Brown, and the inchoate rights of dower of their wives in the premises, and that the resale be subject to the two mortgages only. This will clearly preserve the title of the mortgagors sufficiently, and for the purpose only of the support of the mortgages. And with the modifications suggested, the order should be affirmed.

Childs, J., concurred; Haight, L, not sitting.

Order modified as indicated in the opinion, and as so modified, affirmed, without costs. Ordered to be settled by Bradley, J.


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    CHARLES B. NICHOLS, Respondent, v. NELSON MARTIN and WILLIAM SINCLAIR, Appellants.

      Sale by an agent without disclosing Ms principal — right of the vendee to treat the agent as principal — how far he may set off against the pwrchase-priae claims against the agent subsequently purchased.

    Isaac Depuy sold and delivered to the defendants a quantity of wheat and received in payment therefor their promissory note for the price thereof, payable to his order in sixty days. Thereafter, and before the maturity of the note, the defendants purchased for five dollars an overdue note made by Depuy to one-Sinclair for an amount in excess of the amount of the note given by them. They refused to pay their note upon its maturity, although then informed by Depuy that the wheat belonged to his wife and had been sold by him as her agent, and insisted upon their right to have the amount thereof set off against the note held by them.
    In an action brought upon their note by an assignee thereof:

      Held, that in no event were they entitled to have such set-off made for a greater amount than they had paid for the note purchased by them, viz., five dollars.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Cayuga Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      George Barrow, for the appellants.

      Sereno E. Payne, for the respondent.
   Bradley, J.:

On 11th November, 1881, Isaac Depuy sold and delivered to the defendants a quantity of wheat, and for the price of it they then delivered to him their note, payable to his order at sixty days. When the note became due he called upon them for payment and was informed that they had a note made by him, exceeding in amount that made to him, and they' proposed to use it by way of set-off. He then stated to them that the wheat did not belong to him but was owned by his wife. The defendants’ note was after-wards transferred to the plaintiff, who brought this action upon it; and the defendants allege the purchase of the wheat of Isaac Depuy, etc., and that they hold and own a promissory note made by him December 28, 1876, payable to the order of F. A. Sinclair, and ask that sufficient amount of it to satisfy the note sued on be set off against it. The evidence tended to prove that the wheat belonged to Mrs. Depuy, the wife of Isaac, and that he sold it and took the note for her, but did not disclose to the defendants that he was not the owner or that he was transacting the business otherwise than in his own right. At that time the defendants had no claim against him, but afterwards and before their note became due they purchased the note, set up in the answer, of the payee named in it.

The trial court directed a verdict for the plaintiff for the amount of the note sued on. The contention of the learned counsel for the defendants is that the sale of the wheat by Isaac Depuy to them, without disclosing any relation to the property other than that which was implied from the transaction of the sale, and without any knowledge on their part that he was not the owner or had any principal for whom he was acting, gave them the right to treat him as the principal in the transaction, and entitled them to the allowance of the set-off as claimed. This rule, invoked in support of the defense, is quite well defined by authority and is a somewhat qualified one, and is based upon principles of natural equity. When a person has actual possession of personal property, and the apparent control and management of it, and deals with it and makes sale of it, apparently as principal, when in fact he is agent of another, the purchaser from him may treat bfm as the owner, and in an action brought by the principal for the price may set off a claim he has against the agent, provided the purchaser in good faith supposed the agent was owner, and there were no circumstances which could put him upon inquiry or charge him with negligence in not suspecting or ascertaining that the seller was agent and not the owner of the property. (George v. Clagett, 7 Term, 355; Rabone v. Williams, Id., 356, note; Purchell v. Salter, 1 Q. B. [1 Ad. & Ellis, N. S.], 197; Carr v. Hinchliff, 4 Barn. & Cress, 547; Hogan v. Shorb, 24 Wend., 458; Judson v. Stilwell, 26 How., 513; Pratt v. Collins, 20 Hun, 126; Frame v. William Penh C. Co., 97 Penn. St., 309; Huntington v. Knox, 7 Cush., 371.)

This rule is particularly applicable to factors. They have the unqualified possession of property and a lien for advances, and may maintain actions in their own name; but in view of the principles upon which the remedy and protection of the purchaser rest, there is no reason why it should not also embrace in its operation all agents whose possession of and apparent relation to the property come within such prescribed rule of law. Anything short of such ' agency as vests in the agent the actual possession and apparent control of the property will not give such right to the purchaser as against the principal. Such right is founded in part upon the opportunity which the owner, by his authority, has given his agent to so deceive and mislead those with whom he deals. And the exercise of actual possession, control and management by the agent, which does not come within the power given by the principal, does not afford to the purchaser such relief as against him, although the .agent have the power to sell and sells without declaring any principal, but apparently as owner.

And hence it is held that a purchase made of a broker gives no such right to the purchaser against the principal. (Morris v. Smith, 4 Maule & Selwyn, 566; Baring v. Corrie, 2 Barn. & Ald., 137; Bliss v. Bliss, 7 Bosw., 339; White v. Jaudon, 9 id., 415 ; Dunn v. Wright, 51 Barb., 244.) That class of agency is to make sales without ordinarily having in the agent the actual custody and possession of property, although he sells property and causes the delivery of it to the purchaser. To. enable the purchaser in any case to charge the principal with the debt due from the agent, by way of set-off against the purchase-price, he must be free from negligence in ascertaining, at the time of the purchase, the relation of the agent to the property. ' And it is sufficient to defeat him as against the principal, if he then had knowledge or information of any circumstances which should have induced inquiry in respect to the ownership of the property. (Brown v. Robinson, 2 Caine’s Cases, 341; Wright v. Cabot, 89 N. Y., 570, and cases before cited.)

The plaintiffs’ counsel contends that the defendants had sufficient information at the time of their purchase to put them on inquiry, and justify the verdict. Isaac llepuy had, some time before then failed, and made an assignment for the benefit of his creditors, and from that time the business done was in the name of his wife. He was insolvent. It appeared that the defendants were advised of his failure, and one of them stated that “ soon after his failure it was generally reported that his wife was running things in her own name ; ” that he heard reports to the contrary within a year before the purchase of the note” by the defendants. There was no inquiry made at the time of the sale. The note payable to Isaac Depuy was taken by him without remark. These circumstances, taken together, would not seem to require further explanation. The defendants treated him as the owner of the wheat, and he accepted that as their understanding, by taking the note as drawn, ’ without suggestion. The fact that he had failed four years before, did not require the defendants to suspect that he might not own a load of wheat he was putting into the market.

In the cases before cited, and all to which attention has been called, the debts or claims against' the' agents, which were allowed to be set off by the purchaser as against, the principal, existed at the time of the purchase, or were created by dealings between the purchaser and the agent at and during the time that he was supposed to be the principal in the transaction of the sale. And the equitable principle applied in support of this right of the purchaser, is that where one of two innocent persons must suffer, the loss should fall on him who has given the opportunity to cause it (Wright v. Cabot, supra.) It is not in its purpose unlike the doctrine which supports estoppel en pals, although not dependent upon the same circumstances.

But the effect of it is to prejudice a principal chargeable with no intent to deceive others or mislead them to their prejudice. It would, therefore, seem that they, as against him, should be held to good faith in respect to the creation or procurement of the claim against the agent, which is sought to be used to defeat payment to the party beneficially interested. They should not, in view of the equitable rule which gives relief, be permitted to speculate on his misfortune. The protection of their equities is all they can properly require as against him. It appears that the defendants had, in fact, paid only five dollars for the note of $172, which they sought to use as a set-off. It may, for the purposes of this case, be assumed that before being advised of the claim' that the title to the wheat and the right to the proceeds were not in Isaac, the defendants had the right to become the owner by purchase of a demand against him, and use it as. a set-off against his principal, but it would not be equitable to make it so available beyond the amount paid for it, and by application of familiar principles they are precluded from doing more than that.

It does not appear that the defendants assumed any obligation to-pay or allow to the person of whom they purchased the note, any more than the five dollars paid for it. They were bona fide purchasers and creditors as against the plaintiff, to the extent only of the amount paid for the note. (Jewett v. Palmer, 7 Johns. Ch., 65; Christie v. Bishop, 1 Barb. Ch., 105; Jaehson v. Cadwell, 1 Cow., 622.) The defendants, after being advised of the situation, were not permitted by any act to prejudice the right of the owner to the proceeds of the property sold to them. (Hogan v. Shorb, 24 Wend., 464.) It follows that they were not entitled in any view to set off more than five dollars against the plaintiff’s claim, represented by the note sued on, assuming that Mrs. Depuy owned and was entitled to the proceeds of the wheat at the time of the sale to the defendants. This they did not ask to do, but claimed that sufficient of the amount of the note they held should be allowed and set off to satisfy the plaintiff’s note. It is unnecessary to consider the question whether or not the business relation of Isaac Depuy, to his wife, was that of agent or servant. It was not very clearly defined by the evidence, and if it were the latter, no right of set-off as against the wife or her assigns would inure to the defendants. The rule is not one that should be extended beyond the cases which fairly come within it.

The evidence presented a question of fact in respect to the title in the wife to the wheat, arising upon that of the credibility of the testimony, in view of the relation of the husband and wife (who testified in that respect) to each other, and of the interest of the latter in the event of the action. The defendants had the right to have the questions of fact submitted to the jury, if they had desired it, and so requested. But it seems by the record that they did not ask that any question go to the jury, that they treated the questions presented as those of law only. They are not now permitted to raise any questions other than of law upon their exceptions to refusal to direct a verdict for the defendants, and to the direction of it for the plaintiff. (Barnes v. Perine, 12 N. Y., 18; O'Neill v. James, 43 id., 85; Koehler v. Adler, 78 id., 287.) The evidence is sufficient to authorize and support a verdict for the plaintiff. No other questions raised by counsel require consideration.

The judgment and order should be affirmed.

Haight and Childs, J.J., concurred.

<7udgment affirmed.


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    AARON BROMAN, Respondent, v. STEPHEN E. YOUNG and Others, Appellants.

      Leasehold interest in oil lands — the interest of a mortgagee thereofbefore default is not the subject of a lien under chapter 440 of 1880 —the nature of his interest was not changed by chapter 372 of 1883. ■ •
    The defendants Wiser, who were the owners of a leasehold interest in lands upon which were oil wells, and of the machinery and appliances used in operating the same, executed a mortgage thereon on February 4, 1884, to the other defendants to secure them for indorsements made for the mortgagors. After the execution and recording of the mortgage the plaintiff, at the request of the mortgagors, performed work upon the premises in drilling wells, etc. At that time the mortgagors were not in default to the mortgagees. June 24, 1884, the mortgagees purchased the entire estate of the mortgagors in the premises. July 25, 1884, the plaintiff filed a notice of lieu against the property for his claim for services, under chapter 440 of 1880; which provides that any person who shall perform any labor in drilling any oil well, with the consent of the owner, whether owner in fee or of a less estate, or whether lessee for a term of years, or vendee in possession under a contract, or any right, title or interest in real estate against which an execution at law may be issued, shall, upon filing the prescribed notice, have a lien upon such premises and property.

      Held, that as the mortgagors were in possession of the property and not in default at the time the work was ordered and performed, they could not be considered as acting for or in behalf of tho mortgagees, and that no consent upon the part of the mortgagees would be presumed; that to establish a lien, as against them, their express consent to the performance of the work must be proved.
    That the mortgagees, prior to any default on the part of the mortgagors, were not the owners of any interest or estate specified in the act of 1880 which could be made the subject of a lien.
    That the common-law nature of the mortgagees’ interest in the property was not changed by the passage of chapter 872 of 1883, providing that all oil wells, and all fixtures connected therewith, situate on lands leased for oil purposes, and oil interests and rights held under and by virtue of any lease or contract, or other right or license to operate or produce petroleum oil, shall be deemed personal property for all purposes except taxation.
    Appeal from.an order of the Cattaraugus Special Term appoint-a receiver pendente lite of the leasehold interest of the defendants . in certain lands. • '

      J. B. Jewell, for the appellants.

      George H. Phelps, for the respondent.
   Bradley, J.:

' The defendants Frank W. Wiser and Aaron B. Wiser were the owners of the leasehold interest of 116 acres of oil land, situate in Alleghany county, upon which were twenty-one oil wells, and of machinery and appliances used for their operation, for which they were required to render to the owner of the fee three-eighths of the oil produced as royalty. On the 4th day of February, 1884, and afterward, they made to the appellants mortgages on the property to secure the latter for their .accommodation indorsements for them. On the U4th of June, 1884, the appellants purchased the entire interest of those defendants in the property, and took title thereto. After the 4th day of February, 1884, the plaintiff, by request of and for the defendants Wiser, performed work upon the premises, drilling wells, etc., for which they became indebted to him in the Bum of $2,716.40. Aud on the 25th July, 1884, he filed a notice of lien on the property for such claim under the provisions of Laws 1880, chapter 440. And afterwards and in August, 1884, served notice on the appellants, with bill of particulars annexed, for the foreclosure of the lien, pursuant to that statute, by which he notified the parties defendants to the proceeding that if they failed to appear and answer, judgment would be taken for that sum against defendants Wiser, and judgment for foreclosure and enforcement of the lien and sale of the premises against all the defendants. The appellants answered.

The plaintiff moved for the appointment of a receiver of the oil wells property and production of them, and an order was made to that effect from which this appeal is taken. The affidavits used upon the motion tend to show that up to the 24th June, 1884, the appellants had no interest in the property except such as the mortgages gave them; that the work of the'plaintiff for which the claim is made, was performed before any default on the part of the mortgagors and while the latter had the possession of the premises and property, and without any request of the appellants, and by their answer and affidavit they state that it was done without their knowledge, and that they had no knowledge or information of the claim until after the notice of lien was filed.

The statute, under which the plaintiff proceeded to create and now seeks to enforce it, provided that any person who shall perform any labor in drilling any oil well, etc., with the consent of the owner, whether owner in fee or of a less estate, or whether lessee for a term of years, or vendee in possession under a contract, or any right, title or interest in real estate against which an execution at law may be issued, shall, on filing with the county clerk of the county in which the property is-situated, the notice prescribed by the act, have a lien for the value of such labor upon such premises and property, and that such notice must be filed within sixty days after the completion of such work. Another statute provides that, “ all oil wells and all fixtures connected therewith, situate on lands leased for oil purposes, and oil interests and rights held under and by virtue of any lease or contract, or other right or license to operate or produce petroleum oil, shall be deemed personal property for all purposes except taxation, but nothing herein contained shall affect the laws now in force relating to taxation.” (Laws 1883, chap. 372.)- The contention of the learned counsel for the plaintiff is: 1. That the appellants were, by virtue of those mortgages, owners of the property; and, 2. That the labor was performed by the plaintiff with their consent, and thus brought within the meaning of the statute, and their interest in the property charged with lien, produced by the filing of the notice on the 25th day of July, 1884.

The mortgages are not set out in the appeal book, nor does it there appear what their provisions were, and it is only by inference that we are advised what is the particular property described in them. It appears that they were recorded in the county clerk’s office. They were probably before the Special Term, as in the opinion delivered there it is said that they contained words of sale and transfer by the mortgagors to the mortgagees, and provided that in case the latter deemed the mortgaged property or debt unsafe it should be lawful for them to take possession of the property, and to sell the same at public or private sale, etc. Such sale and such right to take possession, etc., were made and given to secure the mortgagees on account of their indorsements for the mortgagors. Assuming (as claimed by the plaintiff) that the legal title passed for that purpose, the right of the mortgagors was that of redemption, and before default, or until the mortgageés in good faith deemed themselves unsafe, was that of -possession, control and management of the property. (Hall v. Sampson, 35 N. Y., 274; Hamill v. Gillespie, 48 id., 556; Hathaway v. Brayman, 42 id., 322.) In such case the nature of the title of the mortgagees is not general, but is that of special property .until default. The main question (on such assumption) to be considered is : Was the labor in question performed with the consent of the appellants? They did not employ the plaintiff. They say they had no knowledge that the plaintiff performed the work which is the subject of the claim in question, and there is no pretense that they had possession, or anything to do with the operation of the property at the time the work was done, but their property is sought to be charged by the alleged fact that they, as such mortgagees, were owners, and by their consent, implied from that relation, because upon the proofs presented by the affidavits no express consent is established.

The notice of the claim and affidavit of the plaintiff merely allege that the labor was performed with the knowledge and consent of the appellants in general terms, and that they came upon the premises when he was at work on the property and had knowledge that he and others were laboring there tó pnt down oil wells and made no objection, which covers the entire charge of consent. It is not claimed that they said anything to him or he to them; and if it may be inferred, that the work the plaintiff and others were then performing constituted that on which the claim here is founded, or some part of it; there is difficulty in construing it into an express consent, or into any consent on their part, under the circumstances; and they deny having any knowledge or information that the plaintiff was doing or did any work on the premises, and affirmatively state quite specifically that they had no such knowledge or information and in no manner consented. It is a significant fact that at the time the work was done the mortgagors were not in default; that they then had the exclusive right to the possession of the property, as well as such possession in fact, and the exclusive right to operate, manage and control it and take the proceeds,- and that the appellants then had no right to the possession or to interfere with that of their mortgagors. They had not the right to make any objection to the use then made of the property and its operation by them. Nor did the mortgagors then have the possession and operation of the property by the consent or permission of the appellants in any sense. The .Wisers having the' possession gave the mortgages, reserving to themselves the possession and the right to it until the unexpected event should occur which would afford to their mortgagees the right to enter and take it, which might never arise. The right of such possession in the Wisers was not given by or derived from the appellants, so that the mortgagors were not acting for them, nor was any authority to that effect implied. There-was, therefore, no sort of relation between the parties to the mortgage in respect to the conduct, use or operation of the property. It follows that no consent of the mortgagees could be inferred from or through any act- of employment by the Wisers. 'A person cannot be charged with consent to his prejudice, to any act or thing over which he can have no possible control, or about' which he . cannot legitimately have any concern, at least unless it appears that consent was expressly given.

The appellants had. 'no right to object to any act of the mortgagors which did not impair their security, and were not required to consent to anything which improved it. Nor could they be deemed' to consent because the latter would be the effect of anything done by or through the action of the mortgagors. It is unnecessary here to determine what rule might be applied in that respect to work done upon the employment of mortgagors of personal property after default in payment of a debt so secured, and we do not now express any opinion on that question. But on such default the mortgagee becomes the absolute owner of the property mortgaged subject only to the right in equity, of redemption under certain circumstances. (Marsden v. Cornell, 62 N. Y., 215.) Thereafter the mortgagor may be deemed to hold possession by consent or permission of the mortgagee, from which authority or consent may be implied for certain purposes, to do what may be necessary for the protection of the property. Such was the case of Scott v. Delahunt (65 N. Y., 128). There the purchaser from the mortgagor of a canal boat was permitted to retain the possession of and run the boat, after default in payment of the mortgage, and it was held that the party who repaired the boat and held possession of it had a lien for the value of ,the servicies and materials performed and furnished in making such repairs superior to the mortgage. And that was put upon the ground that by reason of the default the mortgagee was entitled to the possession, and the possession and use of the boat by the party who caused the repairs to be made were by the permission of the mortgagee, and therefore the consent of the latter was implied to have done what was necessary for the preservation and protection of the property. That was a common-law lien and consent was required to support it — as does the lien provided by the statute in question. And the latter is no broader in its operation and effect than that of the common law. And in the case cited it cannot be assumed that the court would have held that any consent of the mortgagee would have been inferred in support of the lien as against him, if his ■right of possession had not existed at the time the repairs were made of the boat.

The learned justice at Special Term said, substantially, that if the appellants knew that improvements had been made on the property by somebody, “ it was proper that they should assume, when they took possession of the property, that it might be charged with liens to the extent of the improvements made; the fact that they might be ignorant of the persons -making them would seem to be immaterial.” And he adds : “ It can hardly be supposed that they (appella its), incurring such large liabilities on the strength of theproperty should not keep themselves advised of the facts which increased or djélinished its value.” This cannot answer the purpose of the statute requiring consent of persons who had only a special property as security merely, with neither right to the possession of or to control the property or its management, and could not assume that they ever would or could have any such right. In such case it would seem - that nothing short of an express consent, as distinguished from an implied one, will suffice under the statute. (Craig v. Swinerton, 8 Hun, 144, 147.) This the affidavits fail to show in this case, but tend to the contrary.

In Otis v. Dodd (90 N. Y., 336); the defendant was the owner of the premises which he leased to the party who employed the plaintiff to supply work and materials for the erection of structures on them. And' by the terms of the lease it was provided that the buildings should be erected by the lessee and become part 'of the freehold, and should be kept in repair. The lessor went on the premises, advised about the location,'and gave some directions as to the manner of construction. The court held that this was consent.

And in Nellis v. Bellinger (6 Hun, 560), the defendant was owner, and was present and assisted some in the work.

Those were oases of unqualified ownership by the person charged, and their consent was well established, and, differ very materially in principle from the case at bar.

But there is another view of this case which may dispose of it upon the question of ownership. The statute defines the interests which may be charged by lien, and those only can be. The right and remedy are purely statutory. The owner described is one having a title or interest in fee or of a less estate, lessse for a term of years, or vendee in possession under a contract existing at the time of filing the notice, or any right, title or interest in real estate against which execution may go. This-seems to embrace only real estate and chattels real. The only interest subject to lien in this case, and to which the term owner, chargeable by consent, can 'be applied, was the estate for years. That was the estate of the lessee. It is that which may under the act of 1880 become charged with lien as against the owner who consents to the work. The question arises whether a mortgagee of that interest is owner of it. It is at' common law a chattel interest. The term is given by the lease and exists in it, so that a transfer of the lease assigns the term. The mortgage of the estate or interest operates as a transfer of the lease as security only. The mortgagee of the term out of possession is not treated as the assignee or owner of the term. He is not liable ag such on the covenants which go to and against the assignee, but the mortgage merely charges the term as security for the payment of the debt secured by it. (Astor v. Hoyt, 5 Wend. 603 ; S. C., sub. nom.; Astor v. Miller, 2 Paige, 68.) This being so, the right of the mortgagee out of possession is a mere chose in action. He by foreclosure of his mortgage becomes assignee of the lease, charged with the covenants to pay the rent. (People v. Dudley, 58 N. Y., 323, 331.) The rule in respect to the legal title passing to a mortgagee of personal property, does not seem to be applicable to a mortgage of a lease-hold estate. (Booth v. Kehoe, 71 N. Y., 341, 343.)

By the statute an estaté for years is treated as an interest in land, upon which a judgment becomes a lien and may be sold on execution. (1 R. S., 722, § 5 ; 2 R. S., 359, § 3; Averill v. Taylor, 8 N. Y., 52; Burr v. Stenton, 43 id., 465 ; Despard v. Churchill, 53 id., 199.) And leases for a term exceeding three years .come within the term real estate, as used in the statutes of this State. (1 R. S., 762, § 36.) But its intrinsic quality probably remains the same as at common law, and as such is a chattel interest, and its nature that of a chose in action. (Burr v. Stenton, 52 Barb., 389; 1 Kent Com., 85.)

Treating the appellants as mortgagees of an interest inland, or as assignees of a lease for years as security, they cannot be deemed owners of the term or of the lease. (Trimm v. Marsh, 51 N. Y.,599, 601.) And it is diffcult to see how the act of 1883 (chap. '372) produces any change .in their relation to the leasehold interest. That statute declares that “rights held under and by virtue of any lease or contract or other right or license to operate for or produce petroleum oil, shall be deemed personal property.” That does not provide or have the effect to vest the legal title to the rights held under a lease for years in the mortgagee, nor does that statute enable a mortgagee or assignee, as security, of the lease, to take title to it. The law, so far as the relation of the mortgagee to the leasehold interest is concerned, remains the same as before the act of 1883. That statute evidently was passed to protect the lessee in respect to the structures he should put .on leased lands for the purposes of the business, as well as to enable his creditors to reach those structures, etc. Beyond that no purpose would seem to have been necessary. The right to lien under the act of 1880, as applied to this cáse, has relation to-the ownership of the leasehold interest in the premises, and that only.' (Laws 1880, chap. 440, §§ 1, 2, 9.)

' The appellants at the time the work in question was clone do not seem to"have been owners of any estate in this land, nor were they lessees for a term of years; and therefore did not come within the term owner, as designated in the statute, of an interest chargeable with lien as against them. We have assumed that the mortgages were taken, and the purchase of the property made by the appellants in good faith, without any fraud or collusion with the defendants Wiser, because nothing appears in the papers charging anything to the contrary. When they purchased no notice of lien had been filed, and when that was filed so far as appears here the Wisers had no interest in the property.

The conclusion follows that the order should be reversed.

Haight, J., concurred; Barker, J., not voting.

Order reversed, with ten dollars costs and disbursements.


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    WILLIAM H. CROWELL, Respondent, v. EPHRAIM W. SMITH, Appellant.

      Costs — when the plaintiff is entitled to them, on the ground that the title to real property is put in issue by the pleadings— Code of Cvrnl Procedure, sees. 1667, 1668, 3228. sub. 1.
    The complaint alleged that the defendant without leave wrongfully entered upon, the farm and premises of which the plaintiff then was, and still is, the owner and possessor, and then and there without leave wrongfully cut and broke down, carried away and destroyed, a large number of trees there standing and growing, to the plaintiff’s damage of $100, wherefore he demanded judgment for treble damages. The answer denied each and every allegation of the complaint. The jury found a verdict in favor of the plaintiff for twelve dollars and fifty cents actual damages, and that he was entitled to recover treble damages. No certificate showing that the title to real property came in question upon the trial was given.

      Held, that as the claim to recover treble damages could, under sections 1667 and 1668 of the Code of Oivil Procedure, only be 'made by the owner of the land, and as the plaintiff’s right to recover such damages was denied by the answer, an issue was raised by the pleadings as to the title to the land and that the plaintiff was entitled to costs.
    Where a complaint, in an action of trespass, alleges an injury to the inheritance, a denial of the allegation of the complaint by the defendant in his answer raises a question as to the title to real property, even though the plaintiff has alleged in his complaint possession of, as well as title to, the land. (Per Bradley, J.)
    Appeal by-the defendant from an order of the Monroe Special Term, denying a motion to set aside a taxation of costs in favor of the plaintiff, and for a direction to tax, and allow tbem in favor of the defendant.

      Jacob Decker, for the appellant.

      A. P. Rich, for the respondent.
   Bradley, J.:

The question presented .is whether a claim of title to real property arose upon the pleadings within the meaning of Code of Civil Procedure (§ 3228, sub. 1). The complaint alleges that the defendant, without leave, wrongfully entered upon the farm and premises of which the plaintiff then was, and still is, the owner and possessor (describing it), and then and there, without leave, wrongfully cut and broke down, carried away and destroyed a large number of trees, standing and growing, to the plaintiffs damage of $100, “ wherefore the plaintiff demands judgment for treble damages, amounting to $250. The answer • denies the complaint and each _and every allegation of it. The jury,' by their verdict, said they assess the actual damages of the plaintiff at twelve dollars and fifty cents, and that the plaintiff is entitled to recover treble damages.” No. certificate was made that title to real property came in question on the trial, and each party claimed he was entitled to recover costs. The clerk allowed and inserted the plaintiff’s costs in the judgment, and denied the defendant’s application in that respect. The motion of the latter for retaxation, and for direction to allow his and disallow those of the plaintiff was denied by order of the Special Term, and from that order this appeal is taken. The questions may be considered: 1. Whether the demand by the complaint for treble damages, with or without reference to the recovery of them, characterizes the issue as one presenting claim of title to real property. 2. Whether, by reason of the alleged injury to the freehold by cutting timber (put in issue by the answer), such claim of title arises on the pleadings.

Prior to the Code, the statute entitled “ Of Trespass on Lands ” permitted the owner to recover treble damages for cutting down, etc., wood, trees or timber without leave, unless it appeared that the trespass was casual and involuntary, etc. (2 R. S., 338, §§ 1, 2.) And to entitle such recovery the plaintiff, by his declaration, must have counted upon that statute. (Livingston v. Platner, 1 Cow., 175; Brown v. Bristol, Id., 176; Benton v. Dale, Id., 160; Mooers v. Allen, 2 Wend., 217; King v. Havens, 25 id., 420, 422 ; Stanton v. Pritchard, 1 Hun, 266.) The provisions of the Revised Statutes in this respect were substantially the same as those before then, under which some of those cases were decided, and in such cases costs were given the plaintiff upon recovery of either single or treble damages. (1 Laws 1813, chap. 56, § 29.) And by the Revised Statutes it was expressly provided that in all actions relating to real estate enumerated in the fifth chapter, the plaintiff, if he recovered judgment, should recover costs. (2R. S., 613, § 3, sub. 1.) The provisions of the statute “ of trespass on lands,” were, in the fifth chapter, referred to, and recovery by the plaintiff, while that section 3 was in force, necessarily entitled him to costs. And there was some question whether it was repealed by the old Code of Procedure. It was held in Utter v. Gifford, (25 How., 289) that it was not so repealed. The weight of authority is to the contrary. (Smith v. Keeler, 8 How., 55; Turner v. Van Riper, 48 id., 33 ; Keiny v. Ingraham, 66 Barb., 250, 256.) And such conclusion seems to be in harmony with the spirit and purpose of the provisions of the Code of Procedure in respect to costs. But that question here is not important, as it does not appear by the record before us that this action was commenced prior to the 1st day of September, 1880, and it is unnecessary to consider whether there are any reservations which would be applicable if commenced before then. Those provisions of chapters 5 and 10 of part 3 of the Revised Statutes, were not operative after September 1,1880. (Laws 1880, chap. 245, § 1.) The question here is treated as wholly dependent on the provisions of the Code of Civil Procedure. There the right to recover treble damages for cutting trees, timber, etc., without leave of the owner, is given by sections 1667, 1668, and the provisions of those sections are, in substance, the same as those of the Revised Statutes in that respect. The right to recover this penal sum is in the owner alone. (Jermain v. Booth, 1 Denio, 639, 640 ; Van Deusen v. Young, 29 N. Y., 9, 13.) And for that purpose the plaintiff may state, in his complaint, the amount of his damages, and demand judgment for treble the sum so stated. And nothing more in the complaint seems to be required to bring the case within the statute. ’ (Code Civil Pro., § 1668.) He does demand judgment for' treble damages, and may, therefore, be deemed within the statute. If that form of demand must be treated as characterizing his claim in the complaint as that of owner only, then by answer denying all the allegations of it, a claim of title to real property is made to arise upon the pleadings within the meaning of section 3228, subdivision 1. And the rule should prevail that his right to recover in such action must depend upon proof of title in the plaintiff, although on the trial he seeks to recover, and recovers single damages only; that his proof of actual possession in such case be treated as evidence of ownership as distinguished from a possessory right.

This will make the situation logical. And the question whether the recovery be for actual or treble damages will have no importance. Such was the rule when the provision of 2 Revised Statutes, 613, section 3, subdivision 1, was in force. (Utter v. Gifford, 25 How., 289.) And that view should be adopted. This supports the right of the plaintiff in this action to costs upon the pleadings. The difference in the rule applied under that provision of the Revised Statutes and the Code is that then the plaintiff was entitled to costs without reference to the issue or amount of recovery, and now it depends upon a recovery of fifty dollars or more, or the fact .that the claim of title to real property arises upon the pleadings which is produced by the allegations of the answer. (Turner v. Van Riper, 43 How., 33.) The complaint alleges an injury to the freehold. And the question may be considered whether the right to costs may be determined by the character of the injury charged as resulting from the trespass, when both title and possession of the plaintiff are alleged in the complaint and denied by the answer.. By 2 Revised Statutes, 613, section 3, subdivision 2, it was provided that the plaintiff recover costs in all actions in which the title to lands or a right to do any other injury thereto shall have been put in issue f by the pleadings. It was held that a- plea of general issue in action of trespass on land did not put title in issue within the meaning of that statute, although the injury alleged related to the inheritance, but that some affirmative claim of right which presented the question of title was required in the defendant’s plea to put that in issue, so as to entitle the plaintiff on that ground to costs on recovery of less than fifty dollars. Otherwise he could have costs only on certificate that title to land came in question on the trial. (People ex rel. Fryer v. N. Y. C. P., 18 Wend., 579 ; Squires v. Seward, 16 How., 478, and cases there cited; Radley v. Brice, 6 Wend., 539; Brown v. Majors, 7 id., 495.) And such is'the view taken by the court in Rathbone v. McConnell (21 N. Y., 466; affirming 20 Barb., 311). But since the decision in Kelly v. New York amd Manhattan Beach Railroad Company (81 N. Y., 233), it must be assumed that the Court of Appeals has established the doctrine that, when a defendant denies a plaintiff’s complaint in trespass alleging injury to the inheritance, a claim of title to real property arises on the pleadings although the plaintiff alleges his possession as well as title.

The stipulation made by the attorneys to the effect that the plaintiff might prove treble or single damages, the same as if the complaint was sufficient for the purpose, and that the defendant-might- prove good faith the same as if the answer was sufficient, and that the defendant is not to dispute the title cannot be treated as part of the pleadings. ’ It was made after the issue and must be deemed for the purposes of the trial as a waiver of objections if any-ground for them existed under the pleadings and as matter of evidence in respect to the title. Such is the purport and effect of the stipulation. It in no manner relates to the question presented upon this appeal.

The order appealed from should be affirmed.

Barker, Haight and Lewis, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Rumsby, J.:

text:
    MARGARET M. KENNEDY, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — right of a widow to the services of an infant son — right to recover damages for an injv/ry done to Mm.

    This action was brought by the plaintiff, a widow, to recover damages alleged to have been occasioned by the wrongful act of the defendant in so running one of its engines as to strike and injure her son, a boy of about six ypars of age. The boy was so badly hurt as to be helpless and to require nursing and medical and other attendance for five or six months. It was not shown that he had ever rendered any services to his mother before he was hurt.

      Meld, that the plaintiff, as the widowed mother of her son, had a legal right to his services, which entitled her to maintain the action, without proving that any actual loss of services had been sustained by her.
    That she was entitled to recover the amount of the doctor’s bills.
    Appeal by the defendant from a judgment of the County Court of Erie county, and from an order denying a motion for a new trial made upon a case and exceptions.
    Upon the trial the jury rendered a verdict in favor of the plaintiff for $485.

      George O. Greene, for the appellant.

      A. Moot, for the respondent.
   Rumsby, J.:

It was a question for the jury whether the defendant was negligently running its engine when Harry Kennedy was struck; and also whether there was any negligence 'on the part of Harry or of the plaintiff which contributed to the injury.. Those questions were properly submitted to the jury and their finding is sustained by the evidence.

If Harry was negligent, then it was a question for the jury whether it was negligent for the" plaintiff to permit him to go to school at the time and under the circumstances. (Drew v. Sixth Ave. R. R. Co., 26 N. Y., 49; McGarry v. Loomis, 63 id., 104.) As bearing upon that question, it was competent for the plaintiff to show that she cautioned the children to be careful of the cars at the crossing, and that she watched them to see that they obeyed her instructions.

The question chiefly argued by the counsel for the appellant was whether the plaintiff had shown any right to maintain the action for injuries to her infant son. The plaintiff was a widow; Harry, the little boy who was injured, was six years old at the time he was hurt; he lived with his mother, and he was so badly hurt that he was helpless and required nursing and attendance, medical and otherwise, for five or six months. There was no evidence that he had ever rendered his mother any service before he was hurt. Hpon this state of facts the defendant claims that there was no loss of service to the mother, and therefore no damage to her resulting from the injuries suffered by her son.

It is not to be denied that the right of any one standing in loco jparentis to recover for injuries to his child, is based upon the supposed relation of master and servant, and not upon the relation of parent and child. (Shear & Redf. on Neg., § 608 a; White v. Nellis, 31 N. Y., 405, 407.)

The wrongful act, therefore, must either deprive the master of the service which he had been receiving, or must injuriously affect his right to service, which the law permits him to demand, before he can recover for the injury which it causes. As no service had been rendered by Harry before he was hurt, Mrs. Kennedy cannot recover unless she had the legal right to demand the services of her son. If that is established, no proof of actual service rendered is necessary (Hewitt v. Prime, 21 Wend., 79), but the relation of mistress and servant constructively existed, and" the action can be maintained. (Mulvehall v. Millward, 11 N. Y., 343.) The sole question presented then is whether the widowed mother is legally entitled to the services of her minor child.

Whatever notion may have previously been entertained upon this subject, that question has lately been answered in the affirmative by a series of cases which must be deemed to settle it in this State. In Gray v. Durland (50 Barb., 100, 211) the plaintiff, a widow, sued for the seduction of her minor child. It apjxeared that the daughter was of the age of sixteen years; that at the time of the seduction she lived at the defendant’s house as a domestic and servant, receiving her wages and using them for her own support. The sole question pi’esented in the case was whether the mother of the minor was entitled to her services. This appears from the opinion of Miller, J., delivering the opinion of the court (p. 108), and by the opinion of Hogeboom, J., dissenting. (P. 114.) The decision was that the mothei-, as such, had the right to maintain tho action as the natux-al guai’dian of the minor, as the pei’son bound to maintain and support her, and as the parent who is entitled to her services upon the death of her father. (P. 108.)

The case of Gray v. Durland was followed in Simpson v. Buck (5 Lans., 337), which was an action by the mother to recover for the seiwices of her minor son while in the employ of defendant. The only question presented was whether the mother was entitled to the services. The court below held that she was not, and judgment went against her. Upon apxpealthe Genei’al Term revex’sedthe judgment, saying that Gray v. Durland was put upon thegx-ound stated above, and was decisive of the question. The same point was again presented in Furman v. Van Sise (56 N. Y., 435). In that, as in the former case, the daughter at the time of the seduction was not in the actual service of the mothei’, and the case turned upon the same question presented here, whether the mother being a widow was entitled .to the service of her minor child. Judge Grover, delivering the .opinion of the coui't, says that the law imposes upon the father the duty of providing for and maintaining the infant offspring; but after the death of the father the same law casts this duty solely upon .the mother who must, if of sufficient ability, maintain, educate and take care of her infant children. As the result of this obligation, he says she is entitled to the custody and control of such children; succeeding in this respect, not only to the obligations and duties primarily resting upon the father during life, but also to his right of custody and control and to the services of the children. (Pp. 439,440.) In this case, as in Gray v. Durland, there was strong dissent, so that it is clear that the decision was made upon full consideration of both sides of the question, not only at the argument, but in consultation. These cases are cited by Gilbert, J., in Certwell v. Hoyt (6 Hun, 575, 577), as deciding that the widowed mother is entitled to the services of the minor child. We regard the rule as now firmly settled in this State upon the authority of the cases above cited.

It follows that the plaintiff here was entitled to maintain this action. The cases put the mother’s right to the services upon the ground that she is bound to maintain and .care for the infant children. That being so she is liable for the doctor’s bills for attendance upon Harry during his illness, and she was entitled to ( recover them. There is no other question in the case which calls for examination.

The judgment and order should be affirmed, with costs.

Present — Barker, Haig-ht, Bradley and Rumsey, JJ.

Judgment and order affirmed.


author: Lewis, J. :

text:
    GEORGE W. CARTER, Respondent, v. JOSEPH W. WALLACE, Appellant.

      Sale at option of vendee — when'the title remains in the vendor until the vendee has exercised his option.

    On March, tenth the plaintiff and defendant entered into an agreement whereby the latter was to take and use a mare belonging to the plaintiff, and if she drove to suit him he was to keep her and pay therefor the sum of $130. In pursuance of this agreement the plaintiff delivered the mare to the defendant, who on that day drove her a distance of some twenty-one miles and then placed her in his own ham. The next morning he discovered that she was sick and went to the plaintiff’s house, told him of her sickness, and asked the plaintiff to come and see her. The plaintiff being himself sick asked the defendant to bring the mare to his house, saying he would do what he could for her. The defendant brought the. mare to the plaintiff’s house and left her there. She died that afternoon.

      •Held, that the title had not passed' to the defendant, and that he was not bound to pay the purchase-price to the plaintiff.
    Appeal from a judgment of the Steuben County Court, in favor of the plaintiff, entered upon the report of a referee.

      Eli Saule, for the appellant.

      Burrell c& Bobmson, for the respondent.
   Lewis, J. :

This action is to recover the sum of $130, as the agreed price of a mare, alleged to bave been sold and delivered to the defendant by plaintiff. The answer sets up that sbe was delivered to defendant under an arrangement that defendant should take ber on trial, and if be found ber right, and be was suited with her, be would purchase ber of plaintiff; that sbe did not suit him, and that he returned ber to plaintiff.

The referee found as facts: First. That “about the 10th of March, 1880, the plaintiff was the owner and in possession of one horse ; and, on the day last aforesaid, plaintiff and defendant made and entered into an agreement, whereby the defendant was to take and use the mare, and if sbe drove to suit him be was to keep ber, and pay the plaintiff therefor the sum of $130, Second. That under and in pursuance of the aforesaid agreement, the plaintiff delivered the mare to the defendant, who, on the same day, drove ber to Canisteo and back, a distance going and returning of four miles, and also, on the same day, drove ber to Hornellsville and back, a distance going and returning of seventeen miles. Third. The defendant did not return the mare to the plaintiff on that day, but, when be returned from Canisteo, put ber in his own barn, where sbe remained until the next morning, when be discovered sbe was sick, whereupon be went to the plaintiff’s bouse and informed him that the mare was sick, describing ber symptoms to Mm; and requested the plaintiff, who sometimes practiced as a farrier, to come to his house and see the mare. Plaintiff being sick, he requested the, defendant to bring her to. his house, saying that he would see what he could do for her. Fourth. That the defendant, in pursuance of such request, brought her to the house of the plaintiff, who treated her until she died, on the afternoon of the same day. Fifth. At the time of the delivery of the mare by the defendant to the plaintiff, he did not give the plaintiff any notice that the mare did not drive to suit him, or that he intended to terminate the arrangement for the purchase of the mare. The defendant had expressed himself to others as well pleased with the mare, and that she drove to suit him. Sixth. I find that the delivery of the mare by the defendant to the plaintiff was for the purpose of having the plaintiff treat her as a farrier only; that no notice was given by the defendant to the plaintiff that the arrangement for the purchase of said mare was terminated, and the same was not terminated, but in full force at the time of the death of the said mare. I find, as a conclusion of law, that the plaintiff is entitled to recover of the defendant the sum of $141.76.”

The referee’s findings of fact are supported by the evidence; and if his legal conclusion is sound, the judgment should be affirmed. But had the title to the mare vested in the defendant ? He had the option to become the owner; if she did not suit him to return her; and the referee finds that the option was still existing at the time she was taken sick and returned to the plaintiff. No claim is made in this action for damages arising out of any negligence of the defendant in the use of the animal. The evidence does not warrant that conclusion ; neither has the referee found that the defendant consented to buy in prcesenti. No time was mentioned within which he was to determine whether he would take title and pay for the animal. It was a mere bailment, and not a sale. The case of Hunt v. Wyman (100 Mass. R., 198), is in point. That was a contract for the sale of a horse ; the price was agreed upon; the purchaser took possession to try the animal, and if it did not suit he was to return it in as good condition .as when received, the night of the day he took it, to which the plaintiff assented. Before reaching defendant’s home, the horse was injured,'so that he could not be returned. It was held it was an option to purchase if he liked it, and that he was not liable for the price.

The case of Elphick v. Barnes, reported in the Common Pleas Division of the Law Reports (vol. 5, p. 321), is, in its facts, very similar to the ease of Hunt v. Wyman (supra). That was the sale of a horse, with the right to the purchaser to take it on trial for eight days, the price being agreed upon. Before the expiration of the eight days the horse died. It was held that the purchaser was not liable for the price of the horse. Judge Denman says: There is no sale until the approval is given either expressly or by implication, resulting from keeping the goods beyond the time allowed for trial. Here, I think, there was no sale at the time of the horse’s death, which happened without the fault of either party, and therefore that the action for goods sold and delivered must fail.”

The case of Stone v. Browning (51 N. Y., 211) is instructive upon the question involved in this case. “ In order to constitute a valid contract,’ there must be a mutual assent, one intended to bind both parties. They must also co-exist at the same moment of time.” (Benjamin on Sales, § 39.) The cases referred to in respondent’s brief are not in point. Taylor v. Tillotson (16 Wend., 494) was a contract for the sale of a horse; the price was paid, the horse delivered to the purchaser with the right to return ■ it to the vendor within the stipulated time, provided the purchaser did not injure it. If he returned as above, the purchase-price was to be refunded. While trying the horse he was injured. He was returned to the vendor and the purchase-price refunded, the defendant not informing the vendor of the injury. An action was brought by the vendor in case, for the misrepresentation or concealment in relation- to the misadventure. It was held that he could recover. It is clear that the title to the horse passed to the purchaser in that case, and he was at his risk.

In Bradley v. Wheeler (44 N. Y., 495) the contract was to sell a quantity of hay. The minds of the parties met as to terms and place of delivery. It was taken by the vendor in a scow alongside of defendant’s schooner, and defendant took charge of it, and a portion of it was transferred to defendant’s schooner. Fire broke out near by and destroyed the hay. It was held that the title passed to the purchaser.

The question to be determined is, wbat is the intention of the parties as to the passing of title: The defendant in this case bad not paid the purcbase-price, be bad not notified the plaintiff tbat be bad concluded to retain the mare, but before having come to a determination, without any fault of bis, the animal was taken sick and died. We do not think that the minds of the parties ever met upon a contract of sale in fraasenti, and hence the title to the mare was, at the time of her death, in the plaintiff, and the defendant was not liable in an action for property sold and delivered.

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

Barker and Haight, JJ., concurred; Bradley, J., not sitting.

Judgment of the County Court reversed, and a new trial ordered before another referee, with costs to abide the event.