author: Finch, J.

text:
    In the Matter of The Village of Olean, Resp’t, v. John J. Steyner and Eleanora Dilks, App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Municipal corporations—Openins streets.
    A map of the village of Olean was made in 1836, showing the street in question. Deeds given by the executors and heirs of the original owner, and theirgrantees, including appellants, described lots as bounded by said street. Held, that commissioners appointed to assess damages upon opening the street could only award to the owners the value of the public easement taken, deducting therefrom the value of the private easement which already incumbered the property, and were justified in awarding nominal damages.
    &. Same—Adverse possession.
    Appellants fenced in the strip laid out on said map as a street, and planted and built upon it. Held, that such occupation was not necessarily adverse while no grantees needed or sought to use the easement, and was temporary and in subordination to the existing right under which the entry was made, and which appellants recognized largely within the twenty years by their own conveyances.
    Appeal from judgment of the supreme court, general term, fifth department, affirming an order of county judge confirming award of commissioners giving nominal damages only for laying--out and opening a street in Olean.

      Frank Rumsey, for app’lts; Fred. L. Eaton, for resp’t.
   Finch, J.

A motion is made to dismiss this appeal founded upon the provision of the charter of Olean which makes the order of the commissioners when approved by the county judge final. We do not decide that question, since we are all agreed ■that the judgment should be affirmed and prefer to dispose of the case on its merits.

I do not see how the village of Olean can raise the question of .a dedication to the public use in this proceeding ; for its very existence and prosecution necessarily involves an admission of the land owner’s right, and an inquiry into his damages resulting from a necessary talcing of that right. If Fifth street was in truth dedicated to the public use and that dedication accepted by the municipal authorities, the commissioners were at liberty to open the street and occupy and maintain it without any proceeding whatever, because simply engaged in regulating and improving a •street belonging as such to the village. But the municipality waived any such claim, if it existed, by proceeding under the charter to condemn the land owner’s right and to assess his damages for what was proposed to be taken from him.

Manifestly the village conceded his right when it instituted •a proceeding to take it away, and under a provision of the charter having no application except where there is an owner other than the village, and whose title is to be divested. To say that there is not such owner, and that the easement sought to be condemned belongs to the municipal corporation by the act of the owner, is to deprive the proceeding of all foundation, and invite its dismissal for that reason. The order cannot be sustained on such ground, for the charter does not authorize a taking of the fee, but only an easement for a village street, and precisely that easement had already passed if there had been a dedication and acceptance, and the municipality finds itself in the awkward position of seeking to condemn its own property for its own use. The question thus necessarily becomes one, not of condemnation, but of title, and ends in the inquiry whether the village owns or does not own the casement, and that question cannot be raised or tried in a proceeding which assumes the landowner’s conceded right, and is framed solely to ascertain his j ust compensation for parting with it.

But assuming that there was no dedication of Fifth street, to the public use, and that the proceeding instituted was, therefore, properly commenced, and had a substantial purpose to accomplish, it does not necessarily follow that the commissioners made an error of law in awarding nominal instead of substantial damages. By the village charter it was their duty to award such damages only after deducting therefrom the benefit to the owner from the- opening of the street; and it was proved that both of the owners who are defending had accepted deeds which recognized Fifth street as laid out upon the Gosseline map, and had conveyed to other parties by a description referring to that map, and bounding the parcels by Fifth street as thereon delineated. The whole area of land in question was formerly owned by Mrs. Sewell.

The Gosseline map was made in 1836, when speculation in real estate reached its highest tide, and almost every owner was insane-with expectation. That map spread the village over Mrs. Sew-ell’s land, which was wholly unimproved, and covered by the natural forest, and which it has taken the village fifty years to-reach and need. After Mrs. Sewell’s death her executors conveyed to Simeon Savage eight lots on block forty-one, as laid out on the Gosseline map. This deed was in 1862. Four years later the heirs-at-law of Mrs. Sewell conveyed another large portion of the property to Savage, and in 1869 the substantial balance to Blakeslee. The' grantees of the latter, and those of Savage, with the exception of Steyner and Mrs. Dilks, have joined in the request to open the street, and released all claims for damages. The lots conveyed to Steyner were deeded to his grantor, Savage, by the heirs-at-law of Mrs. Sewell; and the question raised by the appellants of the power of her executor to convey, and especially to impose a servitude upon the land, does not concern Steyner, and only in small degree Mrs. Dilks, most of whose lots also came from the heirs-at-law. All these conveyances recognized and adopted the Gosseline map, and described the premises granted as the lots and blocks delineated on that map, which thus became an essential element of the description. In addition to this characteristic of the conveyances to Steyner and Mrs. Dilks, it appears that there were deeds from them which equally-recognized the map and the existence of Fifth street. In 1885 Steyner deeded to Martha Black part of lots two and four in block fifty-five, according to the Gosseline map, commencing at the intersection of the west line of Fifth street with the south line of Sullivan street, and further bounding the premises by the west line of Fifth street. In 1880 Mrs. Dilks conveyed to Anna Curtis the east part, of block forty, as distinguished on the Gosseline map; the further-description showing a frontage on Fifth street to the east, and on Sullivan street to the south. It seems to be quite clear that the-grantees of the Sewell estate and their grantees in turn acquired, an easement in the strip designated as Fifth street, and appurtenant to their property. All the parties have recognized the Gosseline map, and bought and sold with reference to it, and enough, is shown to establish in them a right to have the strip kept opea to its full width, after the manner and with the characteristics of a village street. Bissell v. N. Y. Cent. R. R. Co., 23 N. Y., 63; In the Matter of Opening Eleventh Avenue, 81 id., 446.

In the first of these cases the map was made by the grantor,, but in the second by the city authorities, and then recognized and adopted by the grantor for the purposes of the conveyance. Ia both cases it was held that the grantees took an easement in the? projected street andwere entitled to have it kept open for public use,, although it did not thereby become a highway until accepted as; such by the public authorities; and the same doctrine is asserted’, broadly and at length in White's Bank of Buffalo v. Nichols, 64 N. Y., 73. This right accruing against the grantors gave similar rights to all the grantees who, as between themselves, could extinguish the servitude only by the united act of all. And the two-defendants here made the incumbrance much more certain by themselves granting parcels according to the Grosseline map, and more or less distinctly recognizing the projected and intended: Fifth street. Hot to open it and barring the public from it. would operate as a fraud upon the grantees, who must be presumed to have bought and paid for the appurtenant convenience and benefit.

The principal answer made by the appellants is that the easement was extinguished by an adverse possession of Steyner and Mrs. Dilks. The former fenced in • the strip and planted and adorned it, and the latter owned a house upon it. These acts might found an adverse possession but for the presumption flowing from the acceptance by the appellants of their deeds and from the conveyances made by them that they entered in subordination to the servitude imposed, and occupied in like manner and only temporarily until the use of the easement, should be required. Smyles v. Hastings, 22 N. Y., 217; Bridges v. Wyckoff, 67 id., 132. That occupation was not necessarily adverse while no • grantees needed or sought to use the easement, and must be regarded as temporary and in subordination to the-existing right under which the entry was made and which the appellants themselves recognized largely within the twenty years by' their own conveyances.

The commissioners, therefore, could only award to the owners: the value of the public easement taken, deducting therefrom the value of the private easement, which already incumbered the; property. Matter of City of Brooklyn, 73 N. Y., 184. It is quite evident that the public right taken deducting therefrom the value-of the private easement leaves only a nominal injury, because the-added burden is itself but technical and nominal. The real burden is in no manner increased by absorbing the private in the-public right or substituting the latter in the room and stead of the-former, since as burdens on the land they are substantially identical. In the case of city streets where under the statute the fee is. taken we have recently held that substantial damages should be-awarded. City of Buffalo v. Pratt, 131 N. Y., 297; 43 St. Rep., 278; but here the fee is not taken but an easement for a highway only, which is merely the equivalent of the private easement displaced. The change alters the control but does not increase the burden. When to this is added the fact that the commissioners were required to personally examine the premises and take into account the benefits resulting from opening the street, it is apparent that we cannot say as matter of law that there were substantial damages, or that more than nominal damages should have been, awarded

The order should be affirmed, with costs.

All concur.

       Affirming 31 St. Rep., 350.


source: Caselaw Access Project

license: Public Domain

text:
    Jacob Mark, App’lt, v. Elizabeth A. L. Hyatt, Resp’t.

      (Court of Appeals,

      Filed October 4, 1892.)

    3jsrjirircTioir—Validity—Trespass.
    Defendant brought an action against the plaintiff alleging in ' her complaint that plaintiff’s firm were licensees of a patent owned by her; that they were irresponsible; that royalties were withheld, and asked as relief an accounting and recovery of the royalties due; that the license be can-celled and the licensees be enjoined from further manufacture under the agreement. The court awarded an injunction restraining the licensees perpetually from manufacturing the patented article without in express terms merely forbidding it under the license; but plaintiff obeyed the same, under the advice of counsel, thereby suffering some loss. Held, that the injunction was not absolutely void, but merely voidable as in excess of jurisdiction, and valid until reversed, and therefore there was no trespass •on the part of defendant, and as this action was brought for damages for •trespass, plaintiff could not recover.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment dismissing complaint on the merits at circuit.

      E. D. McCarthy, for app’lt; Henry H. Man, for resp’t.

         Affirming 40 St. Rep., 794.

   Finch, J.

The injury alleged in this action and for which compensation is sought originated in the operation and effect of a previous judgment obtained by Elizabeth Hyatt, one of the present defendants. In that action she sued the firm of Mark & Ingalls under a contract to manufacture as her licensees a patented article. Her complaint set out the terms of that agreement, which showed a license granted by her for the term of her patents and •of any re-issues thereof; .the licensees binding themselves to pay a specific royalty and to render due and correct accounts of their manufacture. The validity of the patents and the consequent right of their owner were thus recognized; and the licensees, while the agreement stood, could not call in question the title of the patentee. Her complaint further alleged that an account had been refused, and payment of the royalties withheld; that the licensees were wholly irresponsible; and asked as relief an accounting and recovery of the royalties due, that the license granted should be delivered up to be cancelled, and the licensees be enjoined from further manufacture under the agreement. Of ■this action the court had full and undoubted jurisdiction, and all the relief asked was clearly within its authority. The plaintiff sought no decree beyond its admitted power to grant. An answer was served denying most of the material averments of the complaint, and upon the issues joined the case was heard at. special term. The court rendered an interlocutory judgment in» favor of the plaintiff which ordered an accounting before a referee,, directed a cancellation and revocation of the license and awarded, an injunction which exceeded the relief demanded in that.it restrained the licensees perpetually from manufacturing the patented, article, without in express terms merely forbidding it under the= license. That judgment was erroneous in part, but not- void for want of jurisdiction to hear and determine the action. That existed both as to the parties and the subject matter. There was, power to grant an injunction, but the power was erroneously exercised in not explicitly limiting its operation. That error is, claimed to have been in excess of the jurisdiction, outside of and, beyond it, and so the injunction was wholly void. But it was; not so treated.

A copy of it was served upon the licensees, and they,, with full-liberty to disregard it, elected not to do so, but to obey it and-deem it valid until reversed. The copy was served upon them-» on the 1st day of May, 1883. They were not bound to take, the-' risk of disobedience, but, while free to do so, were at liberty to= proceed against it by appeal. They chose that remedy. They appealed from the judgment, and on the 5th of June obtained an-' order staying the effect and operation of the judgment and leaving them free pending the appeal from the restraint of the injunction. They might probably have obtained that order earlier, and so have protected themselves from all substantial loss, but from May 1st to June 5th they claim to have submitted to the injunction, to have discontinued their manufacture, and to have suffered thereby damages to recover which the present action of trespass was brought. The complaint for that alleged wrong was dismissed on the trial, and the general term have affirmed the.dismissal.

It seems to me that the plaintiff founds his argument upon two-inconsistent theories and constructs it by shifting unconsciously from one to the other as the emergency requires. The judgment against him in the prior suit, so far as it awarded an injunction*, was either utterly void for excess of jurisdiction, or was merely an erroneous exercise of jurisdiction. It could not be both, for the two things are totally inconsistent, and the truth of the one-inevitably involves the falsity of the other. The learned counsel! for the appellant argues first that he had a right to treat the injunction as operative, as valid until reversed, and so as merely erroneous and not wholly void ; the consequence following that the damages occasioned were the product of the process, caused by its compulsion, and not by the needless and voluntary act of the party enjoined ; that the then plaintiff is bound by that construction, and may not, after having obtained and served the injunction, defend against its consequences by asserting it to have been; granted without jurisdiction. To all that I agree and concede-that the authorities cited fully justify the contention. The plaintiff here may hold his adversary to that theory, but in that event must also stand upon it himself, for it cannot be at the same time both utterly void and good until reversed. The result of that reasoning is that while there may have been damages there was no trespass. The patentee lawfully and fairly submitted her rights to the decision of the court. While the judgment rendered was in one respect erroneous neither the party nor the court were therefore trespassers. Some injury or inconvenience quite often Sows from the operation of an erroneous judgment pending the appeal which ends in a reversal, but there is no trespass and no trespasser. To some extent the evil is prevented by provisions which stay the ■execution of the judgment and authorize a summary restitution, but no action of trespass will lie to recover the damages unless •the prosecution is alleged and proved to have been malicious and •without probable cause. We have held that doctrine quite firmly ■■and clearly in cases of injunctions, declaring in substance that ¡although the restraining order ought not to have been granted and was set aside for that reason, yet the damages incurred where the proceedings have been regular cannot be recovered in the absence of an undertaking except upon the basis of a malicious prosecution. Lawton v. Green, 64 N. Y., 326 ; Palmer v. Foley, 71 id., 106. Nothing in this case warrants any such action, and it necessarily follows that, upon the theory which plaintiff adopted, ¡and on which his claim for damages rests, and to which he resolutely holds his adversary, there was no cause of action established and the courts below properly dismissed the complaint.

But' here the appellant suddenly shifts his ground and claims that the judgment, instead of being merely erroneous and valid until reversed, was never valid at all so far as the injunction was concerned, but void utterly at the moment of its rendition., If that be true the damages claimed resulted not from the void process, but from the voluntary and needless act of the appellant in view of its existence. No action was taken under it by the then plaintiff. Neither the person nor the property of the appellant was touched or seized. When a void warrant of arrest or order of attachment is issued the granting of the process is not necessarily a trespass, and none may exist until it is in some manner executed.

It is the arrest or the levy which constitutes the trespass and not the mere granting of the process. The injunction if absolutely void was a nullity ; it could not and did not restrain the manufacture ; if the appellant ceased work the act was his own and both voluntary and needless; it originated in no compulsion, for there was nothing to compel and nobody compelling. But he answers that the mere service of a copy of the judgment was a trespass because the then plaintiff could not be heard to say that the injunction which she caused to be served was void and ineffective. But on the theory now under consideration, it is not the defendant who asserts the void character of the process but the plaintiff himself, driven to it by the necessity of providing some sort of foundation on which to build up a claim of trespass, and he cannot assert it for his purpose and deny it when it serves hers.

But, as already intimated, 1 do not think the injunction was absolutely void. Jurisdiction in the action was full and complete. This court so held upon the appeal. There was authority to grant an injunction, but the remedy was declared to be needless, and so improper, in view of the revocation of the license by the judgment rendered. Hyatt v. Ingalls, 124 N. Y., 93 ; 35 St. Rep., 114. Regarded as restraining a future infringement, the injunction would have been in excess of the jurisdiction ; but in view of the pleadings, of the findings, and of the general relief awarded, it may and should be construed as a perpetual restraint upon a manufacture under the contract, and was erroneous simply because open to possible misconstruction, and needless and superfluous when construed as it should be, as not transcending the jurisdiction. And this view of it, as a decree voidable and not void, and valid until reversed, is the view upon which plaintiff acted, by force of which only he can assert damages suffered by compulsion, and which he ought not to be permitted to allege for one purpose and at the same time, deny for another.

We find no error in the record, and the judgment should be affirmed, with costs.

All concur, except Gray, J., not voting.


author: Earl, Ch. J.

text:
    Margaret E. Niebuhr, App’lt, v. John Schreyer, Resp’t.

      (Court of Appeals,

      Filed October 4, 1892.)

    Usury.
    The defendant agreed to advance certain moneys to plaintiff for a joint speculation in real estate, and that on the sale of certain property he should receive his loan with interest, and also one-third of the profits on the sale. There was no allegation of usury in the complaint or reply, nor any objection on the trial before the referee pointing to usury. And the referee merely found that such an agreement was made and afterwards put into writing. Held, that the relation of borrower and lender could not be inferred from the findings of the referee, but that the parties were interested in the real estate in the manner specified, and there was nothing in the record upon which to base the charge of usury set up upon the appeal.
    Appeal from judgment of the New York common'pleas, general term, affirming judgment upon an accounting of a copartnership.

      T. M. Tyng, for app’lt; Alex. Thain, for resp’t.
   Earl, Ch. J.

The very satisfactory opinion delivered in the general term leaves but little to be said here.

This record contains only the findings of the referee and none of the evidence, and therefore we have only to determine whether the conclusions of law are justified by the findings of fact.

The record presents no questions as to the pleadings. We cannot know that any objection based on the pleadings was made to' any of the evidence, and we must assume that all the evidence given upon which the findings of fact were based was received without objection, and hence that it was entitled to be considered and to have effect in the decision of the case. A party desiring to claim that facts offered to be proved are not warranted by the pleadings and the issues made by them, must in some way at the trial object to the proof as incompetent under the pleadings, or else he will be deemed to have waived his objection and to have consented that it should have its legal force and effect.

There was no mistake in the findings of law as to the proceeds of the premises Ho. 424 West Fortieth street. The argument of plaintiff’s counsel to charge these proceeds to the defendant is not •even plausible, and needs no more attention than it has received in the opinion of the court below.

The main objection of the plaintiff is to the allowance to the defendant of the sum of $8,000, which is one-third of the profits realized from the eight houses and lots situate on West Forty-fifth street and on Fourth avenue. ' She objects that that sum was a usurious bonus agreed to be paid to the defendant for the loan •of money. There is no allegation of usury in the complaint or reply. It does not appear that any objection pointing to usury was made at the trial or in any way brought to the attention of the referee. There was no finding, and there was no request to find, that the one-third of the profits was agreed to be paid in addition to the legal rate of interest for the loan or forbearance <of money. The finding of the referee is that the defendant agreed to advance “such moneys as should be needed to erect ¡such buildings and pay for such lots over and above such as ■should be raised on bond and mortgage thereon; and, on the sale of the houses and lots, should from the purchase price thereof be repaid all of his advances made with interest thereon, and should be entitled to receive in addition thereto one-third of the profits that should be received on such sale and that afterward, ior the better assurance and security of the defendant, the plaintiff by an instrument in writing “ declared that she held the title to •said property (the eight houses and lots) subject to the repayment of the defendant’s advances thereon with interest and the payment of one-third of the net profits arising on' the sale thereof, as and when sold and conveyed or otherwise disposed of.” The findings tended to show that the parties were jointly interested in these houses and lots under an agreement by which the defendant was to have the money advanced by him with the interest thereon, and one-third of the profits. That agreement was reduced to writing, signed by the plaintiff, which, as the referee found, specified the relationship between the parties as to the ■eight houses and lots. That writing was put in evidence and marked as an exhibit, and yet it does not appear in the case, and we do not know what its precise terms were. We cannot infer that it created the relation of borrower and lender between these parties, or that it provided for usury to be paid by the plaintiff for money loaned to her by the defendant. The inference from the findings is that it made the parties jointly interested in the real estate to the extent and in the manner above specified. The plaintiff had the burden of establishing the usury which she now charges, and if that paper showed the relation of borrower and lender she should either have had additional findings or have printed the writing in the record. There is nothing in this record upon which she can now base the charge of usury which her counsel makes.

The judgment should be affirmed, with costs.

All concur.

       Affirming, 37 St. Rep., 485.


author: Gray, J.

text:
    Henry A. Mott et al., Resp’ts, v. Jacob Oppenheimer et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Party wall.
    Owners of adjacent lots entered into an agreement that either party, his heirs or assigns, might erect a party wall, with the right to the other party to use the same “ by paying therefor at the time the same shall beso used, one-half of the then value of the part * * * so used, to the party who may have erected, * * * his heirs or assigns,” and with a provision that the agreement “shall be construed as covenants running with the land.” Held, that the effect of the contract was to grant or create an interest in the premises described and the intention of the parties was that it was to run with and be a charge upon the land thereafter.
    2. Same.
    In an action to compel the payment of half the value of said party wall, by a subsequent grantee using it, and to restrain the defendant from using it until after such payment, and for “other and further relief,” with all the facts before the court, it has jurisdiction to direct that unless the pay i ment be made the lands be sold to satisfy the obligation to plaintiffs. t
    3. Same—Evidence.
    The agreement produced in court was signed only by one of the original parties. Held, that as the wall was erected by plaintiffs’ predecessor it did not lie in defendants’ mouths to make the objection to the lack of execution of the instrument by both parties.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff, entered after trial at special term.
    In 1876 an agreement was entered into between Pinkney and. Arkenburgk, who were the owners of adjacent lots of land upon Fifty-Ninth street in the city of New York, whereby it was provided that either party, his heirs and assigns, might erect a certain description of party wall, the centre line of which should coincide with the dividing line of their lots. That agreement contained this clause, that “ the other party, his heirs or assigns, shall have the right to use said wall or walls or extensions, by paying--therefor, at the time the same shall so be used, one-half of the then value of che part or portion of said wall or extension so used, to-the party who may have erected said wall or walls, extension or extensions, his heirs or assigns, and that the same shall forever remain as party walls.” And the final provision was that this agreement “ shall be construed as covenants running with the-land.”
    The agreement in plaintiffs’ possession, which was offered upon-the trial, bore only the signature of Arkenburgh and his acknowledgment in 1876. It was recorded in 1877. Pinkney’s grantee built upon the land a house, with the party wall as contemplated by the agreement, and the plaintiffs subsequently acquired the premises so improved. Through various mesne conveyances, each of which, with an unimportant exception, was made.subject to the party wall agreement, Arkenburgh’s lot came into the ownership of one Stein, who began to' build upon the land, and made use of the party wall. While in the course of building, Stein conveyed to the defendant, Jacob Oppenheimer but making no reference in the deed to the party wall agreement. Thereafter, and during a few months, conveyances of the same property were made to and fro between Oppenheimer and his grantor, Stein, the reason for which is not apparent from this record.
    This action was brought in equity to restrain- defendants from using the party wall, except after paying to the plaintiffs one-half its value, “ and for such other and further relief” as to the court should seem just in the premises. The court found that the plaintiffs were entitled to be paid the value of one-half of the wall, and that the defendants’ premises were charged with the payment, and it was decreed that, unless the payment was made within a fixed time, the premises should be sold to satisfy the obligation to plaintiffs. The judgment recovered by the plaintiffs was affirmed at the general term, and the defendants appealed to this court.

      George Fielden, for app’lts; Clifford A. Hand, for resp’ts.

       Affirming 39 St. Rep., 458.

   Gray, J.

The appellants advance several grounds in support of their appeal from the judgment. They argue that it was not competent for the .court to grant this relief; inasmuch as the issue tendered by the pleadings was the plaintiffs’ right to an injunction. I think, however, that, with all the facts before the court, upon a demand for its equitable intervention, it had jurisdiction to administer such equitable remedies as the merits of the case justified. It was a most familiar principle of chancery procedure that where the court in equity obtained jurisdiction for the purpose of injunction and was in full possession of the merits, it would retain the suit in order to do complete justice between the parties, and that principle seems quite applicable here.

It was clear that relief by way of injunction was not proper to be granted with such an agreement as the basis for any intervention by the court; but it was equally clear that if the agreement was valid and constituted a charge upon the defendants’ premises, its obligation might be enforced in this particular way. Either the agreement was a common law obligation personally enforceable by ordinary action, or it was an instrument which impressed with a lien the lands affected. In either ease, the right to use the wall was absolutely granted and the obligation to pay the value of the one-half upon the premises adjacent to those of the builder of the wall, when it was availed of, if not personally assumed by the adjacent property owner, was enforceable against his land.

It could not be error and it was not inequitable for the court to give to the agreement a proper and legal effect and one which would accomplish exact justice between the parties.

This ground of appeal, therefore, need' not embarrass us in upholding the judgment below.

Then, I think the objection that the agreement appears to have been executed by but one of the parties to it, and, therefore, is invalid, as lacking mutuality, is without force. The instrument, which the plaintiffs produced on the trial in support of their case, though reciting its making by both parties and their desire to authorize either to erect a party wall, was executed by Arkenburgh, the defendants’ predecessor in the title. We may suppose that the agreement was interchangeably executed and delivered ; but whether the supposition be warranted, or not, the proof of a contract between Arkenburgh and Pinkney did not fail. The question is whether the plaintiffs had proved their case by making out an agreement between their and the defendants’ predecessors in interest for the erection of a wall, partly on the land of each; and not whether, for the plaintiffs’ inability to show an actual execution by their predecessor of the instrument evidencing the agreement, they should be precluded from any recovery. I think the proofs supply any such alleged defect in the case. The wall called for by the agreement was erected by plaintiffs’ predecessor in title and there was thus a performance which only the executed contract could have authorized. It was acquiesced in and, in the chain of defendants’ title, the conveyances were made subject to the agreement. There was, therefore, in the existence of such facts, a sufficient proof of the making of this agreement. I do not think it lies in the defendants’ mouths, as the parties sought to be charged with this agreement and standing upon Arkenburgh’s title, to make the objection.

Another objection is that the defendants are not bound by this agreement, inasmuch as there was no reference to it in the conveyance to them. I think the objection is utterly without merits. Their grantor Stein took subject to the agreement and commenced to erect a house, using the wall for the purpose. The respective rights and obligations of the parties became fixed then. If the agreement constituted a charge upon the defendants’ lands, I think it quite immaterial whether the conveyance of the title to them expressed their subjection to the agreement, or not. The fact could not be changed and the plaintiffs could not be deprived of any rights, which they may have derived through such an agreement, by an omission in the deed to the adjacent owner; and of this agreement the defendants had constructive notice from its public record, if they did not have actual notice. The defendants took the land and the building in the course of erection upon it by Stein subject to a lien for the payment of half the value of the party wall.

But, and this seems the more important question in the case, the appellants insist that the covenants in the party wall agreement were not covenants which ran with the land, for the reasons that no interest in the land was granted and that there was no privity of estate between Pinkney and Arkenburgh.

If this agreement was the ordinary one between adjoining land owners for the erection and rise of a party wall on their lands, such as it was in the cases of Cole v. Hughes, 54 N. Y., 444, and Scott v. McMillan, 76 id., 144, I think we should have to agree with the appellants’ argument. But this agreement is dissimilar, in the respect that it was, expressly agreed that the covenants of the agreement should run with the land. In Cole v. Hughes, upon the authority of which Scott v. McMillan was decided, it was held of the agreement there, that it created .a mere privity of contract and not of'estate; and did not impose a burden upon the land, merely because the agreement had relation to land. Both of the cases referred to were actions at law for the recovery of the value of one-half the wall and they failed, for the reason that the grantees of premises, whose former owner had covenanted for himself, his heirs and assigns, were not liable upon the covenant. We do not interfere, in the least degree with the well settled doctrine of these cases, if we give to the present contract a construction which imposed the burden of its covenants upon the land it concerned.

The question whether a contract having relation to lands is personal ; or whether it constitutes a charge upon the lands, obviously must be determined by a consideration of the expressed intentions of the parties and of the existence of any interest in the land raised by force of. its covenants. Words of grant are not essential to create the interest and a covenant may be construed as a grant. Such a construction has been given where the covenant related to the right of way over land. Holms v. Seller, 3 Lev., 805.

In Hart v. Lyon, 90 N. Y., 668, the contract for the party wall was held unenforceable against a purchaser at a sale.in foreclosure, for being merely a personal obligation ; but the covenant that the expense of repairing or rebuilding the party wall should be borne equally by the parties, “ their respective heirs and assigns,” was regarded as a covenant running with the land. The court so held in that case, because, as they say, “it is evident that it was the plain import of the instrument that the portion -which bound the heirs and assigns should be construed as perpetual and as .running with the land.” Without any other reference to, or discussion of, the many cases which bear upon the subject of the nature of the obligation of a contract in its connection with land, I think we may rest upon the rule that where the covenant concerns land, and is one which is capable of being annexed to the estate, and it appears that it is the intention of the parties as expressed in the instrument, then it shall be construed as running with and charging the land thereafter.

In the present case such an intention is evident from the express provisions of the agreement, and I think the effect of the contract clearly was to grant, or to create, an interest in the premises described. I see no ground for sustaining this appeal, and the judgment should be affirmed, with costs. •

All concur.


text:
    John A. Muldoon, Resp’t, v. Jerusha Deline, App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    Ejectment—Parol evidence to explain deed.
    Where there is no ambiguity in the description in plaintiff’s deed, a defendant in an action of ejectment, holding under a junior deed from the same grantor as the plaintiff, cannot give paroi evidence of conversations and negotiations as to the land intended to be conveyed.
    Appeal from' judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff.

      M. M. Waters, for app’lt; Geo. B. Warner, for resp’t.

       Affirming 39 St. Rep., 987.

   Earl, Ch. J.

This is an action of ejectment to recover a small triangular piece of land. The parties own adjoining lots and both claim under the same grantor, Burton. The plaintiff took his deed June 29, 1885, and. the defendant took his July 17th afterward. The land conveyed to the plaintiff is described in his deed as follows: “ Beginning in the easterly line of Bust street, forty feet north from the southerly line of lot No. 121 on said map, thence easterly at right angles to Bust street 153 feet to the southerly line of lot No. 137, thence northwesterly on the southerly line of lot No. 137 forty feet, thence westerly about 128 feet to the easterly line of Bust street to a point forty feet north from the place of beginning; thence southerly along the easterly line of Bust to the place of beginning.” It is conceded that this description includes the land in controversy.

The defendant upon the trial offered paroi evidence of the conversations and negotiations between Burton and the plaintiff, and of other circumstances, to show that it was not the intention of the parties to the deed to include therein the land in question, and that the first course in the deed should not run at right angles with Bust street, but diagonally so as to strike the southerly line of lot 137 forty feet from the southerly line of lot 121. There is no ambiguity in the description contained in the plaintiff’s deed. Every line can be surveyed on the ground just as it is given, and the grantor had the land. When the description is applied to the land no ambiguity is produced, and hence there is no room for paroi evidence. It is true that the intent of the parties to the deed must control. But that intent must be ascertained from the language contained in the deed. When, however, by applying the description contained in a deed an ambiguity is raised, evidence may be given to explain that, and if it be found that some particular of the description is false or defective, that may be rejected, provided the balance of the description when applied to the land is sufficient to show the intention of the parties. The rule in such cases is derived from the civil law, falsa demonstratio non nocet, cum de corjpore constat, and is fully explained in the leading case of Miller v. Travers, 8 Bing., 244, and in 1 Green-leaf’s Ev., 301. Here there was no patent or latent ambiguity, and no false description which within the rule could be disregarded.

The defendant in his answer did not allege any mistake and ask for a reformation of the deed. It is possible that there is a mistake in the descriptions contained in the deeds of both of these parties. If the defendant has any remedy it is by an action to reform the deeds, and to that action probably Burton, the grantor, would be a necessary party, and perhaps also Harrington, the grantee of the lot lying southerly of the plaintiff’s. With all the parties before the court in such an action paroi evidence might be given to show mistake, and if the defendant could clearly establish the mistake he might procure a reformation of the deeds, unless equitable considerations after the lapse of so much time, and changed conditions should impel the court to deny the relief. But in this legal action with these two parties only before the court the deeds as written must control.

There was no question of fact for submission to the 'jury and the verdict for the plaintiff was properly directed.

The judgment should be affirmed, with costs.

All concur.


author: Peckham, J.

text:
    Jacob Parmenter, Resp’t, v. John J. Fitzpatrick, App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Conversion—Evidence—Sale.
    The price which an article brings upon a sale is some evidence of its value, and such sale need not be at auction.
    3. Same.
    In an action to recover from a sheriff the value of certain goods levied upon and sold by him as the property of S. & Co., of which properly plaintiff claims to have been the owner under a bill of sale from the firm to him, it was shown that the goods, consisting of a shop-worn stock of stationers’ goods, were bought in at execution' sale by the judgment creditors themselves, at Plattsburgh, N. Y., and the court refused on the trial of this action to allow defendant to show, on the question of the value of the goods, that the judgment creditors used their best efforts to sell these goods at Syracuse and Utica to the best advantage and at the highest prices they could, and that they did sell them and realized for them several hundred dollars less than the amount they bid for them at the public execution sale. Seld, error; that it was to the interest of the judgment creditors, the sellers of the property at Syracuse and Utica, to obtain .as-high a price as they could, and evidence of such price was competent.

      B. Same.
    Evidence of a sale of the same property at a different place and time from the period of the sale under investigation, may be competent depending upon the distance both of place and time, and 'even upon the stable character of the value of the property itself.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment entered on the verdict of a jury in favor of tlie plaintiff, and an order denying a motion for a new trial upon the minutes of the court.

      John E. Smith, for app’lt; T. F. Conway, for resp’t.

       Reversing 38 St. Rep., 367.

   Peckham, J.

The plaintiff commenced this action to recover from the defendant, who was the sheriff of the county of Clinton, the value of certain goods levied upon and sold by the defendant as the property of the firm of A. C. Smith & Co., of which property plaintiff claims to have been the owner under a bill of sale from the firm to him. Certain judgment creditors of the firm had issued executions upon their judgments and placed them in the hands of the defendant as sheriff, and he had levied upon the-property and sold it under the executions.

The plaintiff recovered a verdict at circuit, upon which judgment was entered and an appeal taken therefrom by defendant to the general term, which court has affirmed the judgment and from the judgment of affirmance the defendant has appealed to this court.

Some questions were raised upon the trial at the Clinton circuit in May, 1890, as to the character of the writing under which plaintiff claimed title, whether it was an unconditional bill of sale- or intended as a security, and whether it was executed in good faith or fraudulently. These questions were submitted to the jury and their general verdict for the plaintiff shows they found them in his favor.

Another question was made as to the value of the goods, assuming them to have been the property of the plaintiff at the time of the sale under the executions. The plaintiff alleged the value to have been thirty-five hundred dollars at the time of the conversion on the 19th of April, 1888. The defendant denied that allegation. The jury rendered a verdict of four thousand dollars-for the plaintiff.

Although the value of the property was thus put in issue there was not much contradiction as to its character. It consisted of goods in a store in Plattsburgh, in Clinton county, and was described as school and miscellaneous books, papers and envelopes,, blank books and stationer’s goods generally, confectionery, albums, bibles, artist’s materials, toys, sheet music, musical publications,, some small musical instruments, a few gold pens and some pencils. A large portion of it was old stock, the accumulation of years, and but a small portion new or fresh stock; school books not in use at the time and place, out of date and a good many of the miscellaneous books damaged by handling. The stock was what would be called shopworn.

The judgment creditors were represented at the sale of these-goods under the various executions. Before the sale their representative had examined them, and had come to a general conclusion or opinion as to their value. The sale under these executions resulted in the purchase in bulk off most of the goods by the judgment creditors through their representative. The goods thus purchased were sent, portions of them to Syracuse, and portions to Utica, N. Y.

The defendant upon the trial offered to show that the judgment, creditors used their best efforts to sell these goods to the best advantage, and at the highest prices' they could, and that they realized for them several hundred dollars less than the amount bid for them at the public sale already mentioned. - The record shows-there was an objection to this offer of evidence, but no grounds. of objection were stated, and the objection was sustained, and an ■exception taken by defendant.

The defendant then offered to show that the entire stock bid off was subsequently sold at the best price that could be realized, ■and for about $1,100 (which was considerably less than the amount of the bid already mentioned), and this offer was objected to in the same way, and the objection sustained, and the defendant ■excepted. f

The property being of such a nature that sales thereof would not be a frequent occurrence, it is apparent that the basis for proving a market price would be somewhat vague. Yet a market price would be evidence of the value of the goods. Shop worn goods partake somewhat of the character of second-hand goods, and while fresh goods of the same description might bé of one value, these goods would naturally be of less. The facilities for the sale of such property would seem to be as good at a city like Syracuse or Utica as at Plattsburgh. The market price..at •either of the former places would therefore be good evidence of the market price at the latter. The value at each place would probably be about the same. At any rate there is no evidence to show there was any difference in the value at these different places, and the objection to the evidence offered is not pointed at any such possible ground of distinction, and we are not to assume it under such circumstances.

Nor is there any objection upon the ground of the lapse of time (not more than a year) after the bid at the execution sale. The time would not be sufficient to exclude this evidence in the absence of any fact showing that it had caused any great or noticeable change in the value of this class of goods. The inquiry therefore is as to the competency of evidence of the price an article sold for at private sale as bearing upon the question of the value of that property.

The plaintiff claims that the defendant has taken the plaintiff’s property from him without legal authority, and if he prove it, the defendant must pay him the value thereof. The market price of personal property at the place of conversion is ordinarily the measure of its value. The market price of personal property is nothing but the general or ordinary price for which property may be bought and sold. There is no particular number of sales necessary to be proved before such price can be said to be ■established. It seems plain, however, that proof of the price ■obtained at an actual sale «made bona fide, and not a sale which was in any way forced, would tend in the direction of proving or •establishing a market price and hence would be some evidence of the value of the property sold. It might not, and indeed it is not ■claimed to be conclusive, but it seems to be competent upon that -quéstion. If there were no other evidence upon the subject, it •certainly would be sufficient for the jury to base a verdict upon, -and if there were other and contradictory evidence then it should be placed before the jury for its consideration upon the question of value. A market price is simply the result of sales of the same kind of property. In the ordinary case of purchase and sale of property, the fact that the purchaser and seller have met- and agreed upon a price and actually bought and sold the property at that price, ought to be in the nature of things some evidence of the value of that property which has thus changed hands in a bona fide transaction. Evidence of a sale of the same property at a different place and time from the period of the sale under investigation may be competent or incompetent, depending among other things upon the distance both of place and time and even upon the stable character of the value .of the property itself. A sale of stock at the stock exchange in a corporation whose stock was greatly dealt in for the sole purpose of speculation, would, not be much evidence of a market price for the same stock months before or after such sale. The price paid at the= sale of a horse six or seven years prior to the time when his value was the subject of investigation might be regarded as no evidence of his value at such time. And on the-contrary, evidence of what property such as the property here in question actually sold for at a comparatively few miles distant from the place of conversion and within a few months of that time ought, as it seems to me, to be some evidence of the value of such property at the time and place in question. It is evidence of an actual sale, and on that account tends to show the market-price and also the value of the property so sold. The parties-selling this property were in the position of most owners wishing to sell and desirous of getting the highest price they could. They had purchased it at a certain price, and any sale below it left them losers, and any sale at a greater sum left them the gainers. These- creditors had, as appears, every motive to obtain the best price they could for these goods, and I am unable to see why the price the goods sold for may not be proved as some evidence upon the question of their real value at the time of the conversion. There is no pretense that the small difference in time and place created in this case any difference in the real value of the goods or in the market price thereof. If the goods had been sold at auction within-this time and at the place stated, it seems to be assumed that evidence of what prices they brought at such auction sale would be competent upon the question of value. It is said this is because it has been so decided in this court. It is true that proof of the prices obtained upon sales at auction has been declared by thie court as, in many cases, high evidence of the value of the property thus sold.

But the reason for the" admissibility of this kind of evidence does not and cannot rest upon the fact that the sale was by auction, but upon the fact that there was an actual sale, a real transaction between a buyer and seller. The price given and obtained upon such actual occurrence is naturally regarded as some evidence of the value of the'thing bought and sold. There is no particular force in the fact that the sale was by auction which tends to prove the value of the thing sold any more than any bona fide sale in private. The auction sale itself shows that there was but one bidder who would give the price for which the property was sold.

The sale, therefore, is only evidence that he alone was willing to pay that price for the property and that the owner was willing to sell for that sum, assuming that it was not a forced sale. If forced, then the sale shows the views of but one party to the transaction, because the seller has no voice in it. In any event •the important fact is an actual sale of the property in a fair way. If the sale was so forced as to practically withdraw the views of the seller from any weight in the question of value, and conducted under oppressive circumstances and in an unfair way, then evidence of the price obtained at such an auction sale ought not to be admitted. In truth there might be objection to the evidence of a sale at auction upon the question of value on the ground that .although it showed an actual transaction between a buyer and .seller, yet it is matter of common knowledge that sometimes such sales are improperly conducted and are forced and unfair, and therefore by reason of such possibilities the price paid at such ■sales ought not to be received as any evidence of the value of the property sold. This objection would suggest itself to any■one. The question whether the possibility that unfairness sometimes may be present ought to prevail as a conclusive objection to the evidence in any case, has been decided in the negative in this state. It was held that where it appeared that the sale was fairly conducted, and bidders were present, and nothing occurred to show there was anything forced or unfair in the whole proceeding, evidence of the price obtained at such sale was competent.

In the case of Campbell v. Woodworth, 20 N. Y., 499, in which Judge Denio wrote the opinion of this court, the decision was in favor of the admissibility of such evidence under such facts. 'The judge thought there were many cases of sales at auction where the price obtained ought not to influence the jury in assessing the value of the property. Those were cases where the sales were not fair and really public and where bidders were not present in numbers as they should have been. In other cases he thought that the result of an auction sale might be very high evidence of the value of the property sold.

The question was not raised as to whether evidence of the purchase price of property at private sale was admissible, but simply whether the price obtained upon a sale at auction was admissible; whether the fact that the sale was at auction ought to render evi-dence of the price obtained incompetent. I think evidence of the price obtained at a private sale of chattels made in a bona fide manner, and not for the purpose of establishing a price, has been held competent in this state for many years. It has been admitted "because it was evidence of an actual transaction between parties interested in the price of the article, the one to get the highest, .and the otherto pay the lowest price for the property, and the fact that these diverse interests agreed upon a price was, in the nature, of the question, some evidence of the value of the property .sold.

In Cary v. Gruman, 4 Hill, 625, Cowen, J., said, that the price agreed upon by the parties at the time of the sale was high .evidence of the then valué of the horse, if sound. It was an actian for breach of warranty, and. it was not pretended that the price agreed upon was conclusive upon the question of value, but simply evidence upon that subject.

Judge Woodruff, in Beach v.Raritan, etc., Co., 87 N. Y., 457-470, •quotes this language of Judge Gowen, and himself adds, that whether the price paid for a chattel, or the price at which it is sold, be admissible in evidence, depends upon the special circumstances in each case as to remoteness in time and place and other matters, but it is not claimed that the evidence of what price a chattel sold for must be confined to a sale at auction.

In Hoffman v. Connor, 76 N. Y., 121, which was an action .against the sheriff of New York county to recover damages for a false return, these facts appeared: Certain personal property had been taken by Connor, the sheriff, from the plaintiff Hoffman, in an action in which Hoffman was defendant, and upon a writ for claim and delivery. Upon the trial of that action this plaintiff (defendant in that) recovered a judgment for the value of the property and •damages for the detention thereof. Upon that judgment execution was issued to the defendant commanding him to take the property from the plaintiff in that action, or in whose hands soever it might be, within his county, and deliver to this plaintiff. The execution thus delivered to Connor was held by him and he made n return that he could not find the property. In truth it was in the hands of a third person in the same county to the knowledge of the sheriff. The plaintiff, Hoffman, sued the sheriff for a false return and upon the trial the plaintiff, for the purpose of proving the value of the property, was asked by her counsel what she paid for it. This was objected to as incompetent and overruled. This court held the ruling proper on the ground that what a party paid for property is some evidence of value. It was not pretended that the sale at which the plaintiff purchased was at .auction.

Enough has been said, as it seems to me, to show that the price which an article brings upon a sale is some evidence of its value and that such sale need not be at auction. In this case it appears beyond all controversy that it was to the interest of these judgment creditors, the sellers of the property at Syracuse and Utica, to obtain as high a price as they could, and where the offer is to show that in fact the property was sold to the best advantage, we think the evidence as to the result of the sale should, under the circumstances of this case already detailed, have been admitted. It was not conclusive, perhaps a jury might think it was not very influential, but we say simply that it is competent and should have been' taken. As there must be a new trial on this ground we .do not think it necessary to discuss the other questions which the defendant argued, for in regard to those in which there might be some doubt, they may not arise upon the new trial.

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

All concur.


text:
    Julius J. Frank, App’lt, v. Edward A. Davis, Resp’t.

      (Court of Appeals,

      Filed October 4, 1892.)

    Foreclosure—Judgment for deficiency.
    Where, during the pendency of an appeal from a judgment of foreclosure, the premises are sold under foreclosure of a prior mortgage, so that the lien of the mortgage sought to be foieclosed has been destroyed, the surplus arising from the sale under the prior mortgage is, as to the-other mortgagee, for the purpose of the lien of bis mortgage, to be treated as real estate, and he has a right to an order diiecting the clerk to docket a. judgment in his favor and granting him execution therefor.

      2. Same.
    The old rule that a court of chancery had no jurisdiction to render a personal judgment against a mortgagor upon his bond or covenant to pay the mortgage debt and that such a judgment could only be obtained by- an action at law, has been entirely swept away, and the general rule that where a court of equity obtains jurisdiction of an action it will retain it and administer full relief, both legal and equitable, so far as it pertains to the same transaction or the same subject matter, except as it is modified by the provisions of the Code, governs foreclosure as other equitable actions.
    Appeal from order of the supreme court, general term, first department, reversing order of special term, directing a judgment against defendant for the amount due on a bond given by defendant, less the amount of the surplus money in another actiozy. brought by this plaintiff, to foreclose a prior mortgage. \

    This action was brought to foreclose a mortgage, and the ordinary judgment of foreclosure and sale was given, containing the usual provision for a deficiency judgment and execution thereon.. The defendant appealed from the judgment to the general term, and to this court, and the judgment -was here affirmed. 127 N. Y., 673 ; 38 St. Rep., 1016. During the pendency of the appeals proceedings on the judgment were stayed. After the appeal had been taken to this court an action was commenced to foreclose a prior mortgage upon the same premises, to which the parties to this action were made defendants, and that action resulted in a, foreclosure judgment, and the premises were sold under that judgment while the appeal in this, action was pending in this court,, and a surplus was produced after satisfying the prior mortgage. In a proceeding for the distribution of such surplus upon the application of this plaintiff, about the sum of $4,000 was applied upon his judgment, and there was still left unpaid thereon upwards of $3,000. Thereafter, upon his motion, an order was made at special term directing the clerk to enter and docket a judgment in his favor for the amount of such deficiency and . granting him execution therefor. From that order the defendant-appealed to the general term, where it was reversed, and the plaintiff then brought this appeal to this court.

      Julius J. Frank, for app’lt; Benjamin N. Cardozo, for resp’t.

       Reversing 41 St. Rep., 292.

   Earl, Ch. J.

The judge at special term granted plaintiff’s motion upon the authority of the case of Siewert v. Hamel, 33 Hun, 44. The general term disapproved of the decision in that case, and held that the jurisdiction of an equity court to enter a deficiency judgment in an action to foreclose a mortgage is strictly statutory, and that such a judgment can be entered only after a sale under the foreclosure judgment, and a deficiency thus resulting and ascertained.

In England, ánd in this' state prior to the Revised Statutes, the court of chancery in an action to foreclose a mortgage was not supposed to have jurisdiction to render a personal judgment against the mortgagor upon his bond or covenant to pay the mortgage debt, and such a‘judgment could only be obtained by an action at law. Noonan v. Lee, 2 Black., 499, 501; Orchard v. Hughes, 1 Wall., 73; Dunkley v.Van Buren, 3 Johns. Ch., 330; Jones v. Conde, 6 id., 77 ; Globe Ins. Co. v. Lansing, 5 Cow., 380; Sprague v. Jones, 9 Paige, 395; Equitable Life Ins. Soc’y v. Stevens, 63 N. Y., 341, 344; Burroughs v. Tostevan, 75 N. Y., 567, 572.

This was an exception to the general rule, that where a court of equity obtains jurisdiction of an action, it will retain it, and administer full relief, both legal and equitable, so far as it pertains to the same transactions or the same subject matter. Lynch v. The Elevated Rail Road Co., 129 N. Y., 274; 41 St. Rep., 541; McGean v. The Same, 44 St. Rep., 75. The purpose of this rule was to relieve parties from the expense and vexation of two suits, one equitable and the other legal, where the whole controversy could be adjusted in the one'suit. There was no reason, so far as we can perceive, for taking the case of a mortgage foreclosure out of this convenient and beneficent rule; and the law makers of this state took early occasion to change the law by providing that a personal judgment for a deficiency may be given in the foreclosure action against any party liable for the mortgage debt. 2 R. S., 191, §§ 151, 154. They went further than the equitable rule, and authorized a personal judgment, not only against the mortgagor, as to whom equitable relief could be had, but also against any other person who was obligated for the payment of the same debt.

It was early held that a contingent decree for the payment of the deficiency could be made before the sale under the foreclosure judgment. McCarthy v. Graham, 8 Paige, 480.

The position taken by the defendant (in which the court below sustained him) is extremely technical. It was provided in the Revised Statutes that a personal judgment against the mortgagor might be ordered “for the balance of the mortgage debt that may remain unsatisfied after a sale of the premises,” and the Code is substantially the same. § 1627. His claim is that as there has beeii and could be no sale upon the judgment in this action, the deficiency could not be ascertained in the mode mentioned in the statute, and that therefore a deficiency judgment is unauthorized, and that the plaintiff must bring an action at law to obtain such a judgment

The purpose of the provisions contained in the Revised Statutes and re-enacted in the Code was to change the chancery rule as it had before been understood and to bring the practice in foreclosure actions within the general chancery rule above referred to, and even, as we have seen, to extend that rule. The deficiency was to be ascertained by a sale of the mortgaged premises, and not by the estimates of witnesses or other less satisfactory evidence. We are asked to hold that enough of the old chancery rule is left to prevent a deficiency judgment unless the deficiency be ascertained by a sale in the action in which the judgment is asked. We think we are justified in holding that that rule has been entirely swept away and that the general rule in equity practice above referred to, except as it is modified by the provisions of the Code, governs foreclosure as other equitable actions. Where there is a sale under the foreclosure judgment and after the application of the proceeds there is a balance unpaid upon the mortgage, the deficiency is thus ascertained. But the full purpose of the statute has been- accomplished if the deficiency be ascertained, as in this case, by a sale in an action to foreclose a prior mortgage ta which the defendant was a party.

The surplus arising from the sale under the prior mortgage is, as to this plaintiff, for the purposes of the lien of his mortgage, to be treated as real estate. Moses v. Murgatroyd, 1 Johns. Ch., 119; Dunning v. The Ocean National Bank, 61 N. Y., 497. The surplus money took the place of the real estate and the plaintiff’s lien was transferred to that. He could not sell it under his judgment, but he had the right to have it applied upon his judgment, and such application took the place of and was in lieu of a sale of the real estate. The deficiency was thus ascertained, and we cannot hold that a court of equity could not in such a case give a personal judgment for the deficiency without going against the prevailing practice under the general rule above referred to, without unnecessarily shortening the arm of equity and sacrificing substance to mere form. The plaintiff properly obtained his equitable judgment and as part of the relief to which he is entitled, to do complete j ustice between the parties, he should have the deficiency judgment which he asks.

The order of the'general term should be reversed and that of the special term affirmed, with costs in this court and the supreme court.

All concur.


author: Per Curiam.

text:
    Isaac W. Allen, Resp’t, v. James J. McFadden, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Bills and notes—Seed note—Bona tide holdee.
    The action was brought by an endorsee upon a promissory note given for wheat purchased by defendant from the Pennsylvania Seed_ Company, the transaction being tile usual grain swindle. Held, that notwithstanding the fraud in the original transaction, the questions as to whether the note had an inception upon its delivery and whether plaintiff was a bona fide holder were for the jury, and their verdict in plaintiff’s favor on those questions would not be disturbed.
    • Appeal by the defendant, James J. McFadden, from a judgment entered in Niagara county, May 1, 1891, on the verdict of a jury at the circuit, and also from an order entered January 18, 1892, and entered in the clerk’s office January 21, 1892, denying his motion for a new trial made upon the minutes of the court.

      Q. G. T. Parker, for app’lt; E. M. & F. M. Ashley, for resp’t.
   Per Curiam.

This action is upon a promissory note, given in the sum of one hundred dollars, made by the defendant to E. A. Clapp, or bearer, for seed grain. It bears date August 12,1889, and was payable on the 1st day of October, 1890. Before the maturity of the note it was transferred by Clapp to the plaintiff, who paid therefor the sum of $95.00.

The transaction out of which the note grew was the usual grain swindle, perpetrated in this instance by a company styling itself the Pennsylvania Seed Company, Limited. The defendant agreed to buy of this company twenty bushels of wheat at fifteen dollars a bushel, less thirty-three and one-third per cent, commission for selling, with a bond of the seed company accompanying the agreement that it would sell for the defendant on or before Sept. 1, 1890, twenty bushels of wheat, to be derived from the crop of that year, at fifteen dollars per bushel, less thirty-three and one-third per cent, commission for selling it; so that the defendant would thereby be enabled to pay out of the transaction this note of $100, together with another one of fifty dollars, given at the same time, and have a handsome margin left.

As we have repeatedly held, this, scheme was a result of a joint fraud of the seed company and of the buyer of the grain, and we do not care at this time to enter upon any discussion or statement of the reasons which have lead us repeatedly so to characterize the transaction.

The jury has found that the plaintiff bought the note of Clapp in good faith, holding as a matter of fact, doubtless, that the note had its inception upon the delivery of it by the defendant -to Clapp, notwithstanding any fraud existing in the contrivance made by the defendant and the agent of the company, one Barger. See Sanford v. Moss, 45 St. Rep., 710; 18 N. Y. Supp., 673, and Joy v. Diefendorf 40 St. Rep., 491.

Judgment and order appealed from affirmed.

Dwight, P. J., Macomber and Lewis, JJ., concur.


author: Macomber, J.

text:
    Samuel C. Cotton, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      {Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Railroad—Negligence—Defective farm crossing.
    While driving over a farm crossing one of plaintiff’s horses caught his hoof between the rail and plank so that he was held until struck by an engine and killed. It appeared that the space between the rail and plank was unusual and such as might nroduce accidents of that kind. TTdd.

      ■ that there was a failure of defendant’s duty to maintain a safe crossing, and that it was properly held liable.
    3. Jury—Right of court to excuse.
    So long as twelve competent and impartial men are actually empanelled, to none of whom any statutory or other objection can be made, a party has no cause to complain and should not he permitted to object to the proceedings directed by the court in respect to the exercise of its discretion-in. excusing jurors.
    Appeal by the defendant, the New York, Lake Erie & Western Railroad Company, from a judgment entered upon a verdict-rendered at the Allegany circuit, on the 20th day of October, 1883, and, also, from an order of the special term denying its-motion for a new trial upon a case and exceptions.

      George F. Brownell, for app’lt; S. M. Norton, for resp’t.
   Macomber, J.

This action was brought to recover the value of a horse belonging to the plaintiff which was killed by the defendant’s locomotive, together with certain other damages to-his harness and wagon.

While passing the farm crossing on the defendant’s railroad' through the lands of one Hubbard Cotton, in the town of Friendship, N. Y, one of the plaintiff’s team of horses caught his foot, between the plank and the rail in such a manner that he was unable to extricate himself. A train of the defendant’s cars soon-, came along, and its locomotive struck the horse while in that position and killed him, the other horse escaping, as did likewise the occupants of the wagon. Ho question is made -touching the-amount of recovery.

It was the duty of the defendant to maintain a proper and safe-crossing at this point This it failed to do. Whatever may have, been the original construction of the plank adjacent to the rail where the horse’s hoof was caught, it is shown satisfactorily by the evidence returned, that the space between the rail and the plank was unusual, and such as might produce accidents of this-description. We do not deem it necessary to enter upon the evidence in detail. The horses were being carefully driven across the place in the usual and ordinary manner and in the customary track. The horse’s hoof and shoe were of the usual-dimensions, so far as appears, but the space mentioned left by the railway company between the rail and the plank was so great as readily to receive the horse’s hoof, or a portion of it, in such a manner as to hold him as in a vise. Upon the merits we think the verdict was right.

There are sundry exceptions in the case, only one of which, however, needs to be mentioned. It seems that the trial, on the-day of the-month named, took place on a Saturday at the court house in the village of Belmont, N. Y. Many of the jurors in attendance as members of a regular panel for. that term, in order to reach home by the usual routes of travel, were obliged to leave the village of Belmont before the evening and probably before the-trial of this action could be concluded.

Thereupon the court excused such jurors, and they were notempanelled or called in the case. So many of the jurors left the court under this very reasonable and proper direction of the; learned judge, that only ten of the original panel remained, and consequently two bystanders were called to take the places of those who had been excused. To this objection was made, and exceptions taken in various forms by counsel then, but not now .acting for the defendant. We think there is no merit in the objection, and that the exceptions thereto were frivolous. The justice at the circuit is something more than a mere moderator. The duty is devolved by law upon him to conduct a court and direct all of its proceedings. If he see fit to permit to go home on Saturday at a certain hour of the day certain jurors, who otherwise would be obliged to remain away from home through Sunday, he has the right, in the exercise of his judgment and discretion, to permit it, and it is not within the province of counsel to undertake to usurp by fatuous objection his constitutional functions, and intrude themselves upon the bench. So long as twelve competent and impartial men are actually empanelled, to none of whom any statutory or other objection could be made, the defendant has no cause to complain, and should not be permitted to object to the proceedings directed by the court in respect to the exercise of the discretion imposed in the judge in excusing jurors. The judgment and order appealed from should be affirmed.

Judgment and order appealed from, affirmed.

Dwight, P. J., concurs; Lewis, J., not sitting.


author: Macombeb, J.

text:
    Peter Dukelow, Resp’t, v. William Searles, Adm’r, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Decedents’ estates—Costs.
    A reduction of $17 on a claim of $196 against an estate, referred under the statute, is not such a material reduction as to justify an absolute denial of all liability of the estate for the claim, and costs are properly allowed in such a case against the administrator.
    Appeal by the defendant, William Searles, as administrator of the estate of Ann Searles, deceased, from an order of the special term made on the 2d day of November, 1891, entered in the Monroe county clerk’s office on the 3d day of November, 1891, confirming the report of a referee in favor of the plaintiff against the defendant in a submission under the statute of a claim against the estate of the decedent and awarding costs to the plaintiff.

      W. H. Whiting, for app’lt; J. J. Snell, for resp’t.
   Macombeb, J.

—The claim made by the plaintiff against the estate of Ann Searles, the intestate, arose out of a bill for unpaid board, lodging and care at the plaintiff’s house from time to time between January 1, 1887, and July 4, 1889, being for fifty-one weeks in all, and found by the referee to be of the value of $3.50 per week and amounting to the sum of $178.50.

But the claim which was rendered by the plaintiff to the administrator was for the sum of $196; and hence the principal contention made by the learned counsel for the appellant is, that costs should not have been awarded by the special term against the administrator. The question is, therefore, whether the payment of the claim was unreasonably resisted by the administrator. If it was, costs were properly awarded to the plaintiff under § 1836 of the Code of Civ. Pro., otherwise not. The only ground, for urging in the administrator’s behalf that he was justified in contesting the claim is the fact that the original claim, as presented, was reduced, by the findings of the referee, by the sum of $17.50. This, it seems to us, is not such a material reduction of the claim presented as to justify the administrator in the attitude which he took when the bill was first presented to him for payment. There was on his part an absolute' denial of all liability of his estate to pay the plaintiff, anything for the board, lodging and care which the plaintiff without being a member of the family of the deceased, had, with the knowledge of the defendant, bestowed, upon her.

The order appealed from should be affirmed.

Order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


text:
    Carrie Oughtersoh, Resp’t, v. David Clark, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Limitation—Bndoksement on note.
    A note apparently barred by the statute of limitation bore an endorsement of payment made by the holder which would relieve it of such bar. The plaintiff testified that before the commencement of the action she presented the note to defendant, who replied that he knew the endorsement was on it and he would pay it. Defendant did not testify. Held, that the admission of the endorsement in evidence was not error, and that the jury were justified in finding in favor of the plaintiff.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff for $600.91, on a verdict at the circuit, entered in Ontario county clerk’s office on the 13th day of November, 1891.

      George L. Bachman, for resp’t; John Gillette, for app’lt.
   Macomber, J.

This action was brought upon a promissory note given by the defendant to one Lucy J. Clark, and by the-latter transferred to the plaintiff, in the sum of $278, and alleged to have been made in the year 1878. The defenses set up in the. answer are : (1) That the note was made in 1875 instead of 1878-(2) That the date was changed after the note was executed and delivered to Lucy J. Clark. (3) The statute of limitations. Upon all of these questions, the jury found a verdict in favor of the-plaintiff. No motion for a new trial having been made either upon the minutes of the court or at special term, no review of the facts arising from such trial can enter into our consideration of' the case. Unless, therefore, some legal error was committed upon the trial prejudicial to the defendant, the judgment appealed from, must be affirmed.

The only question on this appeal admitting of debate arises-out of the plea of the statute of limitations. When this action was begun the statute had apparently run against this note. With this issue presented by the answer (there being no written promise or acknowledgment by the defendant in writing reviving the note), the burden of proof rested upon the plaintiff to show that, notwithstanding the lapse of more than six years from its. maturity, the note had been kept alive by the payment of some part of the principal or interest. When produced in court it bore the following endorsement:

“ Received on the, within interest, five dollars January 1,1885.”' This was in the handwriting of the then holder of the note. I£ the payment purporting to have been made by this endorsement, was actually made at the time indicated, the note was clearly saved from the operation of the statute; otherwise not. .

When the counsel for the plaintiff offered the note in evidence,, together with the endorsement thereon, objection was made to the reception of the endorsement as not being any sufficient evidence of the actual payment of five dollars at the time indicated, or at any other time.

The objection was overruled, to which ruling of the court the-defendant’s counsel duly excepted.

It is now contended by the learned counsel for the appellant, that the reception of the endorsement in evidence was such error as that the judgment appealed from should be reversed. It is argued that such endorsement was an act or declaration of the holder of the note made in her own interest for the purpose of defeating the operation of the statute of limitations.

The general rule undoubtedly is that, where the statute of limitations is involved, a mere endorsement of a sum upon a note, even when shown to have been done by the holder thereof, is not evidence of payment of the sum so endorsed. We do not understand that this rule has been questioned since the decision in the case of Roseboom v. Billington, 17 Johns., 181, where it was held that to make an endorsement admissible, it must be proven to have been made before the presumption of payment attached. Spencer, Oh. J., there said, summing up his discussion of the question: " An endorsement, therefore, on a bond or note made by the obligee or promisee, without the privity of the debtor, cannot be admitted as evidence of payment in favor of the party-making such endorsement, unless it be shown that it was made at a time when its operation would be against the interest of the party making it. If such proof be given, it would, I think, be good evidence for the consideration of the jury.” See, also, Mills v. Davis, 113 N. Y., 243; 22 St. Rep., 580; Hulbert v. Nichol, 20 Hun, 454; Risley v. Wightman, 13 id., 163.

But under the evidence returned to us, this case does not come within the general rule above stated. The plaintiff was called as a witness in her own behalf, and testified, among other things, in substance, that shortly before the beginning of this action she presented to the defendant this note for payment, and at that, time it had the endorsement as it now appears. The defendant, took the note into his possession, examined it carefully, and then replied that he knew the endorsement was on it, and that it was all right, and that he would pay it. This testimony was in part corroborated by another witness. The defendant, though in court, and a perfectly competent witness, was not called either to-deny or explain away this positive evidence. This testimony was sufficient in our judgment to enable the jury intelligently to find as a fact that the payment of five dollars interest was actually made at the time alleged. The jury was, therefore, we think, fully justified in finding a verdict in favor of the plaintiff upon this issue as well as upon the other issues in the case.

It follows, therefore, that the judgment appealed from should he affirmed.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


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    Jessie Haussauer, App’lt, v. George D. Terry, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Estoppel—MoRTGAGEed.
    Plaintiff convey certain land to defendant subject to the fourth part of a mortgage, which defendant assumed to pay. Said mortgage was executed by the executor of plaintiff’s father’s estate pursuant to proceedings for leave to sell for payment of debts. Plaintiff was a minor at the time of said proceedings and was not served and did not appear therein, but her guardian paid her share of the interest with her knowledge, and was allowed therefor on his final accounting, and since that time plaintiff has paid the interest herself. Feld, that plaintiff was estopped by her acts from disputing the validity of said mortgage.
    Appeal by the plaintiff, Jessie Haussauer, from a judgment entered in Steuben county, May 12, 1891, dismissing her complaint upon the report of a referee.

      Delworth M. Silver, for app’lt; Dolson & Orcutt (I. W. Near, of counsel), for resp’t.
   Macomber, J.

This action was brought to recover the sum of $1,500, claimed to be the balance of money agreed to be paid by the defendant for the purchase by him of certain real estate of the plaintiff. The defense was, that the plaintiff had been paid all that was coming to her as the consideration of such conveyance, by receiving from the defendant a deed of other lands of the agreed value of $1,000, and the assumption by the defendant of an incumbrance upon the real estate of $1,500. The fact that the sum of $1,000 was so paid, and the further fact that there was a lien by mortgage upon the premises purchased by the defendant of the plaintiff, are not in dispute, but it is sought to avoid them on the ground that the mortgage lien in question was executed when the plaintiff was a minor, under certain proceedings instituted and conducted in the surrogate’s court of Steuben county to which she was not a party.

The plaintiff is the daughter of one George W. Terry, who died in the year 1884, leaving a last will, bearing date September 19, 1884. The decedent was seized of the lands described in the complaint, together with other lands in Steuben county. His will was admitted to probate by the surrogate October 8, 1884. and duly recorded as a will of real estate. He devised the land, of which the undivided one-fourth part is described in the complaint, to four of his children, of whom the parties to this action are two, @hare and share alike. There being insufficient personal property coming to the hands of the executor to pay in full the debts of the deceased, application was made to the surrogate under the statute for leave to sell or mortgage the real estate of the decedent for such purpose. A citation was thereupon issued, returnable February 2, 1886, when it was proved that all parties had been served except the plaintiff, who was then a minor, and married to-a man by the name of McGuire. The plaintiff arrived at the age of twenty-one years on the 24th day of December, 1887. She never was served with such citation, and she never properly appeared in the proceedings in which the citation was issued. The surrogate directed that a mortgage of six thousand dollars be given, covering the lands of which the undivided one-fourth part is described in the complaint. The mortgage was accordingly executed by the executor, and the necessary moneys obtained thereon. From the time of the execution of the mortgage up to the time-the plaintiff became of full age, her general guardian paid her proportionate share of interest accruing upon the mortgage, with the knowledge of the plaintiff, who subsequently, and after she became of full age, allowed the same in the accounts of her general guardian as settled between them by agreement. After that time, and up to the time of the conveyance to the defendant, the plaintiff personally paid her proportionate share of interest upon such, mortgage, with full knowledge that it was executed pursuant to the proceedings in the surrogate's court.

The deed itself, which bears date 3d day of March, 1888, in express terms, conveyed the lands described in the. complaint-subject to the mortgage heretofore executed by the executor, pursuant to the authority of the surrogate’s court. Furthermore, the-defendant, by accepting the deed containing apt clauses for that purpose, assumed and agreed to pay the one-fourth part of the mortgage, that being the proportionate share resting on these lands, and the deed thereof was accordingly m^de subject to such lien. After the mortgage became due, and upon demand of payment thereof by the holder, the defendant raised the full sum of $6,000 by a promissory note, and caused the mortgage to be assigned to the holder of the note as security for the payment, thereof.

Under these facts it is clear that the plaintiff is estopped now to deny that the mortgage in question was not a valid instrument in the hands of the holder thereof, or that her share, being one-fourth of $6,000, namely, $1,500, has been lawfully assumed and. paid by the defendant. By the deed she recognized the authority of the executor of her father’s will to execute the mortgage. In this instrument she expressly declared that the one-fourth part off the mortgage lien was chargeable upon heh She was, however, relieved of such liability as between herself and the grantee by the assumption by the defendant of the payment of such lien. Under these circumstances she cannot be permitted to say that the mortgage was invalid as to her; and it consequently follows-that the decision of the learned referee was, in all respects, correct, upon the merits of the case.

We have examined the several exceptions taken by the appellant to the refusal of the referee to find certain requests which were made; but such rulings do not present any questions materially different from the principal one arising upon the merits, ■and were made in harmony and subordination to the chief proposition in the case.

The j udgment should be affirmed.

J udgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    Jessie Haussauer, App’lt, v. Edward T. Young, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      'Filed October 21, 1892.)

    Appeal by the plaintiff, Jessie Haussauer, from a judgment entered in Steuben county on the report of a referee, May 12, 1891, dismissing her complaint upon the merits.

      Delworth M. Silver, for app’lt; Dolson & Orcutt (I. W. Near, of counsel), for resp’t.
   Macomber, J.

This action was brought to recover a balance •of the consideration price of one-fourth of the lands described in the complaint, being the plaintiff’s share coming to her under her father’s will, which she had conveyed to the defendant. The consideration which the defendant agreed to pay was twenty-five hundred dollars; fifteen hundred dollars thereof the plaintiff admitted had been paid to her. This case was tried at the same time with the case of Haussauer v. Terry, decided at the present term, and •does not differ from the latter in' any particular, except in the names of the parties and the description of the property, and the amount of the mortgage, which, in this instance, was $4,000, save that the deed appearing in this case, though containing a clause to the effect that the premises were conveyed subject to the mortgage executed by the executor of George W. Terry, deceased, of whom the plaintiff is a daughter and an heir-at-law, does not contain the affirmative personal assumption of the indebtedness by the defendant, as was done in the case of Hassauer v. Terry. But this is an unimportant distinction, because this defendant has actually caused to be discharged the entire mortgage lien, thereby discharging and paying a lien to the amount of fifteen hundred dollars resting upon the lands conveyed by the plaintiff to him. It therefore appears • clear in this case, as well as in the other, that the defendant had paid and discharged the entire consideration for the purchase of the plaintiff’s interest in the land; and hence it follows that this action, as well as the other, cannot be maintained.

Judgment appealed,from affirmed.

Dwight, P. J., and Lewis, J., concur.