text:
    DANIEL BECK, Appellant, v. ELMIRA CARTER and JACOB C. EDWARDS, Executors, etc., of JOSEPH CARTER, Deceased, Respondents.
    Sighway— boundaries of— duty of adjoining owner to establish— liability for excavations near.

    If a house or store is built a few feet from the margin of a street or highway, and no fence is erected along or near the margin, persons traveling along the highway are at liberty to assume that the building is on the margin of the street, and that they may lawfully travel over the whole space thus apparently set apart for public use, and the owner of the adjoining land is liable to a traveler who, without fault on his part, falls into an excavation negligently made by such owner in the vicinity of the highway. .

      Cleveland v. Cleveland (12 Wend., 172) followed; Binks v. South Yorkshire B. B. Co. (113 E. O. L., 244) and Sowland v. Vincent (10 Met., 371) disapproved.
    Hpw far from the margin of the highway the adjoining owner may make an excavation, without being liable to persons who may fall into it, is to be determined by the jury in each case, having regard to the knowledge of the traveler, the width of the highway, its surroundings and the mode of its use.
    Appeal from an order made at the Special Term, granting a motion for a new trial, made upon a case and exceptions.
    In November, 1872, the plaintiff was passing along Exchange street, or alley, in the village of Bath, in the county of Steuben, from his shop to his boarding-house, and, on his way, he passed over the rear of a lot owned ■ by defendant, on which he had been erecting a building, having openings in front of the cellar windows to admit light; they were left uncovered, and he fell in and injured himself; and he brings this action against the defendant to recover the damages sustained by his fall; charging it to have resulted from the negligence of the defendant.
    Franklin street, or alley, was laid out by the owners of land over which it passes, over twenty years before the injury sustained by the defendant; and, although never recorded as a public street or highway, it has been used during all that time by persons with teams, and by persons on foot, at pleasure.
    This street or alley extends from Steuben street on the south to Buell street on the north. At its junction with Steuben street it is fifteen feet wide; at a point a few feet north, it widens six and one-half feet; and at a point a little further north, it widens seven, and one-half feet; but opposite the defendant’s building it is thirty feet wide. The west wall of defendant’s building is from five to seven feet from the east margin of Exchange street, or alley.
    At the time of the injury, there was a pile of stones on the west side of Exchange, in front of defendant’s building, and the middle of the stréet was muddy, so that foot passengers traveled near to defendant’s building.
    It was about eight p. m., that plaintiff started to go from his shop to the hotel where he boarded. It was quite dark, and looking like rain; as he came to defendant’s building, an omnibus, owned by one of the hotels, turned from Buell street into Exchange street, to go to the shed where it was kept when not in use. It went very near defendant’s building, so that plaintiff was compelled, in order to. avoid being struck by it, to approach near defendant’s building, and, in doing so, fell into the uncovered opening left to admit light to the basement, as above stated. These openings had been covered by planks; these planks had been removed and boards put in their places; and, on the evening in question, the boards also had been removed.
    There was nothing to indicate to travelers the trae boundary of the street. The wall of defendant’s building, on the east side of the street, and the remains of a cellar wall on the opposite side, were all the guides or landmarks travelers had to ascertain the boundaries of the street. The court charged that the question, whether the precise locus of the injury was within the bounds of the thoroughfare, or within the boundary of defendant’s lot, wasjuot important, except so far as it bore on the question of defendant’s negligence in leaving the area open. He further charged them that a person passing through an alley of that width cannot be required, and he is not to be expected, to know where the lines are. If he exercises ordinary prudence to keep within the lines, as marked by ostensible boundaries, that is all that can be required of him. It cannot be required of a man, before he passes through a thoroughfare, to call a surveyor and find out where its legal boundaries are. He may take the ostensible boundaries, and the reasonable indications where the boundaries are. If there had been a sidewalk along there, of brick, stone or plank, or any other substitute, the east edge of that sidewalk would have been the boundary of that alley. But there was nothing of that kind. He further charged them that plaintiff was not bound to know precisely where the legal east line of the alley was; and it would, according to the proof, have been quite impossible for him to obtain such knowledge, if he made use of diligence to do so.
    He further charged that the rule of law is, that a person is liable for an accident caused by an excavation upon his own- land, so situate that a person lawfully using the highway, and using ordinary caution, falls into the excavation; that is, if the excavation is situated so near the highway that a person lawfully using it, and using ordinary caution, falls into it, that excavation, thus made, is a public nuisance. If the excavation in question was on the highway, or so near that a person exercising ordinary and reasonable care for his own safety was liable to fall into it, the defendant is liable for having it there, unless it was protected in such manner as to save the passers by from falling into it. It makes no sort of difference whether the excavation was seven, nine or ten feet from the originally established bounds of the thoroughfare; if it was so situated that a person lawfully using the thoroughfare, and in a reasonable manner, was liable to fall into it, the defendant was liable.
    The defendant’s counsel excepted to the parts of the charge above quoted. The jury found a verdict for the plaintiff of $351.
    The defendant’s counsel moved, on a case and exceptions, at Special Term, for a new trial. The motion was granted, and from the order granting it the plaintiff appealed to this court.

      W. B. Buggies, for the appellant.

      William M. Niehols, for the respondent.
   Mullin, P. J.:

The new trial was granted because of error in the charge of the judge in submitting the case to the jury. The alleged error is, in charging that a person passing through Exchange street is not to be expected to know where the lines are. He may take the ostensible boundaries and the reasonable indications where these boundaries are. That it made no difference whether the excavation was seven, nine or ten feet from the originally established bounds of the thoroughfare, if it was so situated that a person lawfully using it, and in a reasonable manner, was liable to fall into it, the defendant was liable.

With all deference to the opinion of my learned brother who granted the new trial, I think he was wrong and the judge’s charge was right, so far as the propositions above stated are concerned.

The general rule is, that an owner of land is not bound to inclose it in a fence, unless required to do so by some law of the State, and every entry on his land is a trespass- for which he is entitled to damage. But this rule is not without exceptions. If a highway becomes foundrous the traveler may pull down fences and pass over the land of an adjoining owner, until he passes the foundrous part, then he must return into the highway.

So, also, when lands adjoining a public highway remain uninclosed, they are considered as dedicated to the public use, and no action will lie by the owner against any person traveling over them. (Cleveland v. Cleveland, 12 Wend., 172.)

Nelson, J., delivering the opinion of the court, says: Even if the road had been proved to have been laid out two rods wide, and- a few feet belonging to the plaintiff lay between the róad and the fence, as it has always been left in common with the road, and thereby apparently devoted to the public use, any person would be justified in using it in that way. The fair inference to be drawn from its situation thus acquiesced in by the owner, is that it has been abandoned to the public. Any other construction would convert it into a clap-trap to catch trespassers.

I do not find that this case has ever been overruled or questioned, and, assuming it to lay down the law correctly, let us proceed and apply it to the case before us.

If a house or store is built a few feet from the margin of the street or highway, and no fence is erected along or near the margin, persons are at liberty to assume that the building i's on the margin of the street, and that they may lawfully travel over the whole space thus apparently set apart for public use by the owners of the land.

The law in England and in Massachusetts is, -that the traveler must, at his peril, keep within the limits of the highway as laid out or dedicated to the public, and if he -passes over the boundary and is injured by falling into an excavation made by the owner at. such a distance from the margin of the street, that a person who. slips or becomes dizzy, or whose horse shies, would not fall into it, he is without redress, although there is nothing to indicate where the boundary of the street is. (Binks v. South Yorkshire Railway Co., 113 E. C. L., 244, and cases cited; Howland v. Vincent, 10 Metc., 371.)

The principle of these cases is so in conflict with Cleveland v. Cleveland (supra), that it must he deemed to be repudiated as both unreasonable, oppressive and unjust.

In the opinion of the Court of Appeals in the case of Nicholson v. Erie Railway Co. (41 N. Y., 525), the case of Hounsell v. Smyth (reported in 97 Eng. C. L., 731), in which it was held that a person who wanders from the highway on to waste land adjoining, and falls into an excavation left unguarded, and over which land persons passed ad libitum, could not recover for the damage he sustained by his fall, is cited and approved.

But neither that case nor the case in the Court of Appeals governs this case. In both cases the rights of travelers in the highway were not in question. The persons injured were knowingly out of the highway, and traveling on the private property of the owners, and although the owners having acquiesced in the use of the land by persons passing over it, could not maintain trespass against such persons until the license was revoked, yet those who traveled over it did so subject to all the risks incident to the route traveled, and the 'owners owed such persons no duty to put up fences or other guards to protect them against such risks.

To authorize an owner of land adjoining a highway to require travelers lawfully passing along it to keep within. the limits of it, as laid out or dedicated, he must indicate, in some proper way, where the boundaries are, and when that is done he is relieved from liability for injuries sustained outside such limits.

To hold a traveler, a stranger to the locality, bound to keep within the limits of a lane or alley in the night as well as in the day, and that the owner of adjoining land may dig pits in his land five, or six, or seven feet from one of the margins of the street, and if the traveler falls into it, and is injured, he is without remedy against the owner of the land on which such pit is dug, is so monstrous, so unjust and so unreasonable, that it needs but be stated to be repudiated. Had this opening into which plaintiff fell been on the front side of the store, and there was nothing to protect persons from falling into it, the case of Cleveland would make the owner liable to the plaintiff.

The excavation into which he fell was in the rear of defendant’s store, some seven or eight feet from the margin of the alley, without any guard about it, or any thing to show that the street did not extend to the wall of the building; travelers had the right to assume that the alley extended to the building as laid out, or added by dedication to the public for their use as part of the highway.

Alleys are laid out in the rear of stores and other buildings to afford to the owners and persons having business, easy access to the building, and the land is as effectually dedicated lying between the public street and the building, as it would be, were the front of the building set back from the street, and no fence set up to indicate the owner’s intention to exclude the public.

It is impossible for a traveler to ascertain the exact boundaries of such an alley as the one on which the plaintiff was passing at the time of the injury. It does not appear that he had ever seen it surveyed, or in any other way was informed of its boundaries, and he was not under obligation to procure a survey of it so long as the owner had left the land between the street and his building, unseparated by any visible fence or other barrier.

It is quite common in this country to find large tracts of lands, especially .wood lands, without any fence to indicate the boundary of the street, and persons with teams drive over it at pleasure for a space of six, eight or ten rods wide. Each traveler follows the track left by those who precede him, without any means of knowing where the boundaries of the highway are. Now, may the owner dig a pit in the route over which teams have passed, outside of the highway, leave it uncovered, and not be liable to a person who falls into the pit, and is injured? I cannot believe it, nor can I sanction such an unjust rule.

How far from the margin of a street the adjoining owner may make an excavation without being liable to persons who fall into it and are injured, not having guarded it in any way so as to prevent injury, must be determined in each case, as no general rule can be prescribed that would not operate unjustly in a great many, if not majority of cases.

The jury must determine in each case the question of liability, having regard to the knowledge the traveler has of the highway, its width and the mode of its use, and especially the evidence that the road and its surroundings furnished as to the route and its width as well as to the care and caution exercised by him.

When the margin of the highway is indicated by a fence or building, the traveler is bound to conform to the margin as thus indicated, although there may be open spaces where there is no fence or building, but beyond such intervals buildings or fences exist which enable the traveler to ascertain the line of the highway.

In the City of Norwich v. Breed (30 Conn., 535), I understand the Supreme Court of Connecticut to take the view of the question that I have put forward in this opinion.

The order for a new trial must be reversed, costs to abide event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order granting new trial reversed.


source: Caselaw Access Project

author: Per Curiam,:

license: Public Domain

text:
    GEORGE W. ZINK, Respondent, v. THE CITY OF BUFFALO, Appellant.

      Assessment — judgment restraining its collection — effect of on other suits for smne purpose.

    Where a party, assessed for a local improvement, commences an action to restrain the municipal corporation from proceeding to collect such assessment and obtains judgment to that effect, such judgment does not prevent another person, not a party to such first mentioned action, from maintaining an action, brought for the same purpose.
    Appeal from a judgment of the Superior Court of Buffalo certified to this court, because of the disqualification of two of the justices of the Superior Court.
    This action was brought to restrain the defendant from proceeding to collect an assessment, claimed to have been made upon the plaintiff’s property, and in such proceeding to create a cloud upon the plaintiff’s title.
    Defendant only presented and argued one point upon the appeal, viz.: That the assessment roll described in the complaint and containing assessment on plaintiff’s land, has been adjudged irregular and void by the decision of a competent court in the case of Wells & Mills against this defendant, and that there was not, at the commencement of this action, any assessment roll or assessment upon which the defendant could proceed, to create a cloud upon the plaintiff’s title. The judgment in the case of Wells & Mills v. The City of Buffalo, was as follows :
    That the said defendant, its officers and agents, be and they are hereby perpetually enjoined and restrained from selling the premises in said complaint and hereinafter described, or any part thereof, for the collection of either or any of said assessments, or from in any manner enforcing or collecting the said assessments, or either thereof, as against said plaintiffs.
    That the comptroller of said defendant, upon service of a certified copy of this judgment, cancel and discharge the said several assessments upon the records thereof in his office, and that the plaintiffs recover of said defendant the sum of seventy-four dollars and ninety-seven cents for the costs of this action as adjusted.

      Frank R. Perkins, for the appellant.

      Sherman 8. Rogers, for the respondent.
   Per Curiam,:

It was not an error of the judge at Special Term in refusing to find and decide that the judgment entered in the case of Wells & Mills, proved on the trial, operated to annul said assessment roll and all the assessments mentioned therein, including those set forth in the complaint in this action, and that therefore the plaintiff could not maintain this action.

Such decision and judgment only bound the parties in that action, and set aside'the assessment, so far, as it was a lien upon the lands of Wells & Mills. It still remained a lien and a cloud upon the plaintiff’s lands. That action did not bring up, like a oertíorari, the whole assessment roll for review in behalf of all the parties assessed. In such ease, the judgment of the court would be upon the whole record, and might set aside and annul the whole assessment.

The decision in the case of Wells & Mills would operate as an adjudication upon the question presented in the same court, and in all others would doubtless be respected and followed as the opinion of the court until reversed. But it appears such a decision was not acquiesced in by the city, but the judgment was appealed from to the General Term, and such appeal was pending when this action was commenced and tried. This suit was therefore properly brought and the judgment should be affirmed with costs.

Bresent — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed, with costs of appeal.


text:
    BENJAMIN F. YOUNG, Administrator, etc., v. CATHARINE T. HILL, Administratrix, and others.

      Compound interest — account stated — agreement to pay compound interest vmpliedfrom.

    When an account containing items of compound interest is once settled and liquidated, it constitutes an agreement to pay the amount stated as due, including such items for compound interest.
    A.n agreement to pay interest on interest, made after the interest is due, may be implied, in this as well as in other cases.
    Appeal from a judgment at Special Term, entered on the decision of the court.
    This action was tried before the court without a jury. The court found, among others, the following facts:
    The plaintiff is a resident of Great Britain, and was the owner of a large amount of personal property in the United States for upwards of fifty years before 1871. Joseph Fellows, the intestate of the defendants, had had charge of the property of the said plaintiff in the United States, as sub-agent, until 1832, and for thirty-eight years, prior to 1871, said Joseph Fellows had had exclusive charge of 'said property as agent, taking the exclusive control thereof, and received from the said plaintiff an annual salary therefor.
    On the 1st day of March, 1817, the said Joseph Fellows and one Andrew McNab executed to Robert Troup, who was then the agent of the plaintiff, their joint and several bond, under their hands and seals, conditioned to pay to the said Robert Troup $6,763, with interest at six per cent per annum from the 1st day of April, 1817, to be paid annually, and the principal to be paid in seven equal annual installments.
    That during the time of his said agency said Joseph Fellows had charge of said bond, and held the same as part of the property in his hands as agent of said plaintiff. During all of said time and beginning with the date of said bond, and down to December 31, 1870, Mr. Fellows had computed the amount due thereon at compound interest at six per cent, with annual rests, and had attached said computation to said bond, and caused the same as aforesaid to be entered on the bond book kept by him as agent of the plaintiff, as a debt due from himself to said plaintiff.

      In each year of his said agency, said Joseph Fellows reported to the said plaintiff the amount of plaintiff’s property, so held by him as such agent. One of the items of said report was entitled “ bonds in the State of New York,” and contained, among other things, the amount due on said bond above mentioned, reckoned at compound interest as aforesaid, but the amount of said bond was included with other bonds, and was not returned separately.
    From time to time Mr. Fellows made payments on said bond, but no payments were made thereon from December 31, 1834, to December 31, 1855. Such payments were more than sufficient to pay in full the said bond, if the amount due thereon were reckoned at simple interest, but if the same were reckoned at compound interest, there was unpaid thereon, after deducting said payments, on the 8th day of December, 1871, the sum of $39,432.73.
    While Mr. Fellows was such agent as aforesaid, he had the exclusive control of the collection of debts due the plaintiff in the United States, and the plaintiff had no knowledge what debts were due him, and no knowledge that this bond debt was not paid.
    During all the time Mr. Fellows was such agent of the plaintiff as aforesaid, he fully intended to pay the said bond with compound interest; and he caused said compound interest to be calculated, and charged the same against himself, as hereinbefore stated, and included the same in the liquidation hereafter mentioned, with the intention and for the purpose of creating a legal obligation to pay the same.
    In May, 1871, Joseph Fellows ceased to act as agent of the plaintiff^ and on the 8th day of December, 1871, an accounting was had between the plaintiff and Joseph Fellows, and an account was settled and stated between them.
    The said account was reduced to writing and signed by said Fellows, and the following statement was made thereon :
    “ The foregoing accounts and amounts have been liquidated and settled, and the balance due to Rev. Richard T. P. Pulteney is $70,463.52, subject to the correction of any errors and omissions which may hereafter be found therein. * * *
    “ Dated December 8, 1871. $70,463.52.
    “ JOSEPH FELLOWS.”

      One item in the account, viz., $39,432.73, reading “Add amount due this day on Fellows & McNab bond,” was the amount of said bond at compound interest, which amount was then admitted to be due by said Fellows.
    On the 29th day of April, 1873, the said Joseph Fellows died, and the defendants Catharine T. Hill and Alexander Olcott were duly appointed his administrators.
    And, as conclusions of law, the court found:
    That the acts of said Joseph Fellows in computing compound interest on said bond, charging the same to himself on his books, reporting the same to the plaintiff as due on said bond, and including the same in said account'stated, did not create a legal obligation to pay said compound interest, and that said item of $39,432.73, in the said account, was not a charge against said Joseph Fellows, and should be deducted therefrom.

      William, Bumisey, for the appellants.
    The rule is thoroughly settled in this State, that an account stated is conclusive upon the parties, unless the person seeking to impeach it shows fraud or mistake. (Lockwood v. Thorne, 11 N. Y., 170, 175; Ghubbuck v. Vernam, 42 id., 432; Koch v. Bonitz, 4 Daly, 117; Phillips v. Belden, 2 Edw. Ch., 1.) There was a sufficient agreement on the part of Mr. Fellows to pay this compound interest. (LeQrange v. Hamilton 4 T. B., 613; S. C. affirmed, 2 H. Bl., 144; Kellogg v. Hickok, 1 Wend., 521.) And it is so since the adoption of the Code in this State, which gives law courts equity jurisdiction. (Stewart v. Petree, 55 N. Y., 621; 3 Parsons on Cont., 150, 151; Waring v. Gunliffe, 1 Yes. Jr., 99; Gamp v. Bates, 11 Conn., 487, 497; Bose v. Bridgeport, 17 Conn., 243; Mowry v. Bishop, 5 Paige, 98, 102; Fobes v. Gantfield, 3 Ohio, 18; Hollingsworth v. Detroit, 3 McLean, 472, and cases cited on pp. 474-478; approved by S. C. U. S., see 17 Conn., 245, 247; Bainbridge v. Wiloocks, 1 Baldw. C. C., 536; Watkvnson v. Boot, 4 Ohio, 374; Pierce v. Bowe, 1 N. H., 179; Toll v. Hiller, 11 Paige, 228, 231, 232; Niles v. Bd. of Gomrs., 8 Blaekf., 158, 160.) Indeed, the Court of Chancery does not hesitate to charge compound interest whenever it sees fit to do so, as in the case of trustees to accumulate (Baphael v. Boehem, 11 Yes. Jr., 92), or agent to invest. (Walker v. Walker, 9 Wal., 744, 756). Or it has allowed or disallowed compound interest, according to the justice of each particular ' case. (Parker, Oh. J., Barrett v. Joy, 16 Mass., 227.) And such a contract is not against public policy. In many eases it has been allowed. (Mowry v. Bishop, 5 Paige, 98 ; cases above cited.) The cases wherein the courts have refused to enforce the agreement to pay compound interest as against public policy, are those where the agreement was made at the time of making-the original contract. (Ossulton v. Yarmouth, 2 Salk., 449 ; Oonnectieut v. Jackson, 1 Johns. Ch., 13; 3 Parsons on Oont. [5th ed.], 151; Story on Oont., § 1033.) And in each of the cases cited above the court says that the court will allow interest where a settlement of account' takes place after interest has become due. (1 Johns. Oh., 34, 16.) And to make interest principal, it is requisite that interest be first grown due, and then an agreement concerning it may make it principal. (Lord Oh. Cowper, 2 Salk., 449.) And this manner of computing interest has been permitted and held to be proper when it is done with consent of the debtor, in the following cases : Barclay v. Kennedy (3 Wash. O. 0., 350); Rufford v. Bishop (5 Puss. Oh. 346, 353); Eaton v. Bell (5 B. & Aid., 34); Fobes v. Gantfield (3 Ohio, 17); Watki/nson v. Root (4 id., 374); Kennon v. Dickens (Oam. & Nor., 357). The stating of the account is in the nature of a new promise. (Holmes v. DeG'amp, 1 Johns., 34, 36; 2 Greenl. Ev., § 127; Connecticut v. Jackson, 1 Johns. Oh., 13, 14; YanBenschoten v. Lawson, 6 id., 313.) It will be allowed in a case of a contract for it, either express or inferred from the nature of the dealings between the parties, from which it can be inferred that it was their intention to allow it. (Morgan v. Mather, 2 Ves. Jr., 15, 20; Glancart/y v. Latouche, 1 Bali & Beat., 418, 429 ; Rufford v. Bishop, 5 Puss. Oh., 346; Eaton v. Bell, 7 E. O. L., 13; Newell v. Jones, 19 id., 304; Ex parte Bevan, 9 Ves. Jr., 223; Hollingsworth v. Detroit, 3 McLean, 472, 476; Bainbridge v. Wilcocks, Bald. O. 0., 536; Barclay v. Kennedy, 3 Wash. O. 0., 350, 352; Dennis ton v. Imbrie, id., 396, 402; Howard v. Farley, 3 Pobt., 308 , Story on Oont., § 1033; 3 Parsons on Oont. [5th ed.], 150 ei seg. / Mowry v. Bishop, 5 Paige, 98, 102; Stewart v. Petree, 55 N. Y., 621, 623; Howard v. Farley, 3 Pobt., 308; Barclay v.
      Kennedy, 3 Wash. C. 0., 350 ; cases cited supra ; Camp v. Bates, 11 Conn., 487.)

      Brown do Hadden, for the respondent.
   Per Curiam,:

Compound interest, it is well settled in this State, is not recoverable, except upon a special agreement to pay interest upon interest after the latter has become due. This is the rule as stated by Chancellor Walworth in Toll v. Hiller (11 Paige, 228). Chancellor Kent states the rule more strictly, and held that it could only be recovered upon a written agreement, made after the interest upon which the agreement operates has fallen due. (Van Ben Schooten v. Lawson, 6 Johns. Ch., 314; Connecticut v. Jackson, 1 id., 13.)

Legal interest is recoverable where, after a principal sum drawing interest is due, and where interest is payable upon a bond or other obligation annually, it is justly and equitably due at the end of the year; and if the debtor, instead of paying it, gives his note or bond for it, the note or bond is clearly valid. (Kellogg v. Hickok, 1 Wend., 521; Stewart v. Petree, 55 N. Y., 621.)

The action must be brought upon the new agreement to pay the compound interest, and the moral obligation of the debtor to make remuneration for the loss of interest when the principal is forborne, is a sufficient consideration to support the new agreement. (Mowry v. Bishop, 5 Paige, 103.)

The learned judge at the Special Term held, in this case, that the compound interest embraced in the account stated and settled by Mr. Fellows, was not recoverable as upon a new and special agreement within the rule of the cases in this State, and that such stated account was nothing more than a mere admission of the correctness of the account.

Generally, as a question of evidence as between merchants and traders, an account stated or settled by acquiescence, without objection to it, is deemed and treated as prima facie correct, and is conclusive upon both parties till impeached for error, mistake, or fraud. (Lockwood v. Thorne, 18 N. Y., 292 ; Towsley v. Denison, 45 Barb., 490.)

In such case, from the admission of indebtedness involved in the settlement of such account by acquiescence, in all mercantile or ordinary business transactions, an obligation to pay sucb indebtedness would universally be implied.

But since the cases require a special agreement to pay compound interest made after the simple interest has fallen due, it is insisted that such agreement cannot be implied from a mere account stated, but must be distinctly and expressly proved in writing, separately from such account stated.

But we think the account, in this case, has other and greater force than that of a mere admission of the correctness of the items embraced in it.

Upon its face, if not an express agreement by Mr. Fellows, it is evidence, we think, of an express agreement by him to pay interest upon the interest, after the interest fell due, annually on his bond.

Instead of remitting to the obligee, in his bond, the principal and interest as they fell due, Mr. Fellows, it appears, added the interest at the expiration of each year to the principal, and struck a balance, and treated such balance as a new principal sum upon interest, and being himself in possession of said bond as trustee and agent for Mr. Pulteney, he annexed to said bond, and sent to Mr. Pulteney, a stated account, from year to year, charging himself with interest upon interest — thus compounding.

In his final account, made by himself, including an account with the bond in question, and signed by him, bearing date the 8th of December, 1870, he wrote and signed a statement at the foot of said account, as follows: “ The foregoing accounts and amounts have been liquidated and settled, and the balance due to Bev. Bichard F. F. Pulteney is $70,463.52, subject to correction of errors and omissions which may thereafter be found therein.”

This is more than an account stated. It is a “ settled and liquidated” account, made, not by the creditor and settled by mere acquiescence, or the omission for a long time to make objection to it, but made out by the debtor himself, and expressly asserting, upon its face, that it is settled and liquidated, and that the sum of $70,463.52 is the balance due to Mr. Pulteney. This is, in legal effect, an agreement, or involves an agreement, to pay such balance, as much as if he had written, in the shape of a promissory note, to Mr. Pulteney, that the amount specified was due to him.

It is in the nature of a new agreement to pay the compound interest embraced in such stated balance. In Holmes v. De Camp (1 Johns., 34), Chief Justice Spencer said that “ the stating of an account is regarded as a consideration for the promise, and it is in the nature of a new promise;” and in 2 Greenleaf’s Evidence, section 127, the author says that “the stating of the account alters the nature of the debt, and is, in this nature, a new promise.”

But, independently of the consideration that an account stated and settled becomes, in effect, and is a new agreement or evidence of a new agreement, such agreement, we think, may be implied to pay interest upon interest from an account stated, as much as such agreement can be implied in other cases.

There is no ground or warrant for the distinction between this class of agreements and other contracts, requiring, that this particular agreement must be in writing. (Howard v. Farley, 3 Robertson, 314.)

In Barclay v. Kennedy (3 Washington C. C., 352), the learned judge, speqking of agreements to pay compound interest, said: “If such an arrangement may be legally made by express agreement, it may be by an implied one, and accounts regularly stated and balanced, and interest added to the balance, received by the debtor and acquiesced in without objection, may fairly be considered as evidence of such agreement.”

Chancellor Kent held or admitted this in principle in the leading case of Connecticut v. Jackson (1 Johns. Ch., 13), where he says that there are cases in which interest is considered as charged to principal and permitted to carry interest, as where a settlement of accounts takes place after interest has become due.”

The same principle that, where an account has been stated and a balance struck, including interest upon interest, such an account may be regarded as evidence of an agreement to pay the compound interest included in it, according to the terms and effect of the account, is asserted in Ex parte Bevan (9 Vesey, 224); Rufford v. Bishop (5 Russel, 353); Eaton v. Bell (7 Eng. C. L., 34); Bainbridge v. Wilcocks (Baldwin, 539), and in Lord Clancarty v. Latouche (1 Ball & Beatty, 429), where the lord chancellor said : “ From the acquiescence of Mr. Conoly (the debtor), I ought to presume an agreement, at the end of every year, that the interest then due should become principal and carry interest.”

It would obviously be a very unsafe and mischievous doctrine to hold in respect to the numerous savings and other banks in this-country, which receive deposits for accumulation, and customarily cast interest on their accounts, making annual or semi-annual rests, and striking a new balance, including the interest accrued, that they are not liable to pay the interest thus compounded and entered in the pass-books of their depositors, unless, in each case, an independent express agreement, in writing, was made to pay such balance, inclusive of the accumulated interest.

The pass-book of each depositor, in such case, would contain, in the entries therein made, an account stated by the bank and binding upon it, as an express agreement, to pay the balance thus struck. And such we regard the effect of the annual statement of' the accounts rendered by Mr. Fellows to . his creditor, from year to year, intermediate the final account.

The fact that the result of this accumulation of interest unpaid, added to the principal, makes the debt amount to a large sum at the expiration of fifty years, cannot affect the question. It is, doubtless, true, as suggested by Chancellor Kent in Connecticut v. Jackson (1 Johns. Ch., supra), and by Chancellor Walworth in Mowry v. Bishop (5 Paige, 102), that, from motives of public policy, to prevent an accumulation of compound interest in favor of negligent creditors who do not call for the payment of interest as it becomes due, courts have been reluctant to allow compound interest, and yet where the contract calls for annual interest, as is the case with the bond of Mr. Fellows, it is held but just and equitable, as Chancellor Walworth says in Toll v. Hiller (supra), to recover interest on such interest from the time it was payable. If, as a general rule, it tends to harshness and oppression to exact such interest, as Chancellor Kent suggests in the case of Connecticut v. Jackson (supra), yet there are two sides to the question, and the creditor is entitled to his rights, and they cannot be denied to him upon mere considerations of sentiment. If, in this case, the account could be taken of the profits made by Mr. Fellows in the use of the money of his principal for the fifty years he withheld it, and used it for his own benefit, I think it is quite doubtful whether he would be obnoxious to the censure, bestowed by the Savior upon the servant, to whose care his Lord intrusted the one talent which he hid in the ground, that “ he ought to have put his money to the exchangers that he might receive his own when he came for it, with usury.” If Mr. Fellows had deposited this money in the savings banks of this country, and received six per cent thereon semiannually, or invested it in some of the public stocks or bonds of this State or country, where he might have received dividends from seven to ten per cent semi-annually, it is quite apparent that he would have derived and retained to himself very large profits from the use of the money, and could well afford to keep it, paying to his creditor only six per cent annually, as above stated.

It was error, we think, to strike out from the account made up by Mr. Fellows, and signed by him, the items for amount due on the Fellows & McNab bond of $39,432.73.

As this is the only item in dispute, and there can be probably no further proof given in respect to it, I think the judgment may be amended by adding that sum to the amount of the recovery, as of the date of March 1, 1875, the date of the report of the judge at Special Term, and as thus amended the judgment should be affirmed, with costs of the appeal.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment amended and modified by adding thereto the item stricken from the account rendered by Mr. Fillmore, of $39,432.73, as of the date of March 1, 1875, the date of the finding o’f the judge at Special Term, and as thus amended affirmed, with costs.


author: Per Guriam:

text:
    ALEXANDER A. EUSTAPHIEVE, Plaintiff, v. MARY W. KETCHUM and GEORGE B. KETCHUM, Defendants.

      Married woman— liability of, on lease executed by herself and husband.

    A married woman is not liable upon a lease, executed by berself and husband, of a bouse used as a borne for tbe family, unless sbe expressly mates tbe obligation thereof a charge upon her separate estate.
    Motion for judgment in an action tried at the Erie county Circuit, in which a verdict was ordered for the plaintiff, subject to the opinion of the court at General Term.

      The action was brought to recover rent for a dwelling-house in the city of Buffalo, rented to the defendants by a lease, executed to and by both the defendants, for the terra of three years and seven months.
    The defendants answered separately, and the defendant Mary W. Ketchum set up that she was at the time of the execution of said lease, and ever since, a married woman and the wife of the said George W. Ketchum, and lived with her said husband, and did not have or carry on any separate business whatever, separate and apart from her said husband, and that she signed said lease at his request and for his benefit, and without any consideration or benefit to herself.

      P. G. Parker, for the plaintiff.
    The defendant Mary W. Ketchum is liable for the payment of the rent reserved for the use of the premises leased to her, and her coverture is not a defense. ( Westervelt v. Aekley, 4 N. Y. S. O. [T. & 0.], 444, and cases there cited.) The only difference between this case and the reported decision is, that here the husband joins the wife in the lease. Certainly husband and wife may be joint purchasers and grantees of real estate in fee and joint lessees for a term of years. They take by entireties. Neither can convey without the other; and the survivor takes the whole. (Willard on Real Estate, 180 ; Goelet v. Goer, 31 Barb., 314; Freeman v. Freemam,, 51 id., 306; Farmers and Mechanics’ Bank of Rochester v. Gregory, 49 id., 155.)

      J. M. Humphrey, for the defendants.
    The defendant Mary W. Ketchum is 'not liable upon this lease. The liability of married women upon contract is limited : Eirst, to contracts made in carrying on a trade or business of their own; second, to contracts relating to or made 'for the benefit of their separate estate; third, ■where the intention to charge their separate estate is expressed in the contract. (The Manhattan Brass and Manufacturing Go. v. Thompson, 58 N. Y., and cases cited.) She took no separate estate under this lease. (The Albany Fire Insurance Go. v. Bay, 4 N. Y., 9; 31 Barb., 314, and 5 N. Y. Sup., 568.)
   Per Guriam:

At the close of the evidence at the trial, the defendants’ counsel asked the court to direct a verdict in favor of the defendant Mary "W. Ketchum, because she was a married woman, and the contract was not a charge upon her estate, nor made for the benefit of her estate, nor made in her business, and she was not liable upon said lease. The Circuit j udge denied said motion, and , granted the motion of the plaintiff’s counsel to direct a verdict for the plaintiff for the amount claimed against both defendants. To which decisions the defendants’ counsel duly excepted. These exceptions present the chief point for our consideration.

At common law the personal contracts of a married woman were absolutely void. This disability to make a valid contract still remains, except as it is taken away by the recent statutes of this State relating to married women. These statutes allow and enable a married woman to take lands and other property, by descent, gift, grant or devise, and hold the same to her own use and benefit, separate and independently from her husband, as if she were unmarried ; and, also, to carry on a separate trade or business on her own account, separate from her husband, and to make contracts in respect to such property and business as if she were a feme sole. The disability to make contracts, taken away by these statutes, simply applies or extends to these two classes of contracts which relate to her separate property or business. Except in respect to contracts thus made for herself, and for her own benefit, her naked personal contracts, made alone or with her husband, are still absolutely void. Her separate property cannot be reached or bound by any other contracts, except by way of appointment or charge, expressed in the contract, as in equity before the • enactment of those statutes. This is the settled law in this State since the decisions of Yale v. Dederer (22 N. Y., 450), and the Corn Exchange Bank v. Babcock (42 N. Y., 615). The law, as settled in these eases, applies, I think, to and determines this case. The covenants in the- lease do not bind Mrs. Ketchum. They are, as respects her, void. They are the covenants of the husband, and only binding upon him. This was held in. the case of Goelet v. Gori (31 Barb., 314), which is a very well considered case, and quite in point. The action in that case was upon a lease executed, as in this action, by both husband and wife.

In Vincent v. Buhler (1 Daly, 166), it was held that, in a lease to the wife, she was not bound by the covenants to pay rent; and reference was had to Taylor on Landlord and Tenant (§ 105), and to Darby v. Callaghan (16 N. Y., 71).

These cases arose before the acts of 1860 and 1862, enlarging the powers of married women, and enabling them to carry on a separate trade and business. These acts, doubtless, do enable a married women to make any contract which relates or pertains to her separate business, as incident, necessarily, to the power to piirchase property for and conduct such business.

Since the passage of these acts of 1860 and 1862, a married woman may, doubtless, take a lease to herself, and the same will be valid if taken in her separate business, or to enable her to carry on á separate trade or business; and she will now, doubtless, be liable to pay the rent, and perform the covenants of the lease, as if she were unmarried. (Draper v. Stouvenel, 35 N. Y., 512; Westervelt v. Ackley, 4 N. Y. S. C., 444 ; Prevot v. Lawrence, 51 N. Y., 219.)

In contracts relating to her personal estate, or made for the benefit of such estate, or created in or about carrying on any separate trade or business, the wife may bind herself, personally, by contract, as if she were unmarried. (Manhattan Co. v. Thompson, 58 N. Y., 82.)

The lease in this case was not taken or executed, to enable Mrs. Ketchum to carry on any separate trade or business. It was not made for the benefit of, and did not relate to her separate estate. It was taken by her husband to enable him to provide a home for his family, for which he was bound to provide. Mrs. Ketchum could only be made liable upon it by an express charge, embraced in the lease, upon her separate estate, within the rule asserted in Yale v. Dederer (supra), that the intention to charge the separate estate must be stated in the contract itself, or the consideration must be one going to the direct benefit of the estate. Mrs. Ketchum was, at most, a mere surety for her Irusband, and not bound by the contract.

The defense of the defendant George B. Ketchum was, that the premises became untenantable and unfit for use, after he took possession, by reason of the careless, negligent and improper construction, decay and imperfection of the water and sewer pipes, and drains and sewers; and that he abandoned the same for that reason, and that the plaintiff assented to such abandonment. Some considerable evidence was given tending to establish this defense, sufficient, I am inclined to think, to require that it be submitted to the jury, as requested by the defendant’s counsel; but, as there must be a new trial for the error of the Circuit judge, in directing a verdict against Mrs. Ketchum, we will not pass definitely upon that question.

A new trial must be granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

New trial granted, with costs to abide event.


author: Per Curiam:

text:
    THE PEOPLE ex rel. WALTER SIMONDS, Commissioner of Highways, etc., v. WILLIAM RYKEN, Town Clerk of Grand Island, and others.

      Gertiomri — return to conclusive — affidavits showing it to be false — court cannot consider.

    Upon a common-law certiorari, the return is held conclusive; the court cannot consider affidavits tending to show that it is false, nor can the court refer it to a referee to ascertain the truth of the facts stated in the return.
    Motion either to strike out part of a return, made by a justice of the peace to a writ of certiorari, or to refer it to a referee to ascertain its truth. The motion was made upon affidavits tending to show that the return was in some respects untrue.

      Geo. W. Ooltmwn, for the motion.

      Lewis, Gurney & Sill, for the relator.
   Per Curiam:

Upon affidavits showing that the return of the justice is in several respects untrue, the respondent asks that such parts be stricken out, or that the court direct a reference to ascertain and report the facts occurring in the proceedings before the justice. Upon a common law certiorari the return is held conclusive as to the facts alleged, and the court must give judgment upon the record and proceedings embraced in such return. It cannot consider affidavits contradicting said return in any particular. To do so, would subvert the proceeding by certiorari and turn it in effect into an ordinary special motion. In this case, there is quite a number of affidavits on both sides conflicting quite essentially in respect to the facts stated in the return. If the return is false, the officer is liable to an action for a false return. (Smith v. Johnston, 30 How., 374; People v. Powers, 19 Abb., 99 ; Rawson v. Adams, 17 Johns., 131 ; Haines v. The Judges of Westchester County, 20 Wend., 625; People v. Morgan, 65 Barb., 473.)

Nor can the court refer it to a referee to ascertain the truth of the facts stated in the return. There is no such practice.

If the return contains matter not called for or irrelevant, the court will disregard it, and so of matters returned upon information and belief. (Lawton v. Commissioners of Highway of Cambridge, 2 Caines, 179; Stone et al. v. Mayor of N. Y., 25 Wend., 168.)

The motion should be denied with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Motion to strike out return, etc., denied, with ten dollars costs.


author: Smith, J.:

text:
    IRVING KESTER and GEORGE W. CROSIER, Plaintiffs, v. THOMAS J. REYNOLDS, Defendant.

      Contract to ship potatoes — delivery on can's — previous payment — Demand of delivery — what excuses — Interpretation of contracts, hy course of dealing.

    A contract by B. to put potatoes in A.’s sacks and ship them to A.’s residence implies that B. is to deliver them on board the cars for A., to be transported to A.’s residence, without previous payment of their price by A.
    In such case the sending by B. to A. of the sacks empty, and proof of the sale of the potatoes in question to another, excuses A. from demanding the potatoes and tendering the price thereof.
    The course of dealing between contracting parties is admissible to aid in the inter- • pretation of their contracts.
    Motion for a new trial ou exceptions ordered to be beard in tbe first instance at the General Term.

      This action was brought for an alleged breach of contract by the defendant, in failing to deliver certain potatoes. ' The contract is expressed in the following letters :
    Office of T. J. Reynolds, ~|
    Dealer in Grain, Seeds and Country Produce, j-
    Livonia Station, N. Y., April 14, 1874. j
    Irving Kester & Co.:
    Gents. — Yours at hand, and in reply would say, I think I could put you a load or two of peachblows on cars here at eighty cents per bushel. If you want them please let me hear.'
    The apples were shipped from Genesee, and I have waited therefor for shipping receipt, and will forward it at once when received.
    Yours truly,
    T. ’J. REYNOLDS.
    P. S.— I will buy potatoes on commish for you if you want.
    T. J. R.
    Buffalo, April 15, 1874.
    T. J. Reynolds:
    Yours of the fourteenth received, and we note all you say about potatoes; we will take a car load or two of choice peachblow potatoes at eighty cents on cars at your station in our sacks; on receipt of this let us know whether you will make it one or two car loads, and we will send sacks at once; we want the potatoes as soon as possible.
    Yours, etc.,
    IRYING KESTER & CO.
    Office of T. J. Reynolds,
    Dealer in Grain, Seeds and Country Produce. [-
    Livonia Station, N. Y., April 16, 1874. J
    Irving Kester & Co., Buffalo, Ai. Y.:

    Gents. — Yours- at hand, and in reply would say you may send me sacks enough for one car, and then I will let you know in reference to the other. I will sell you the seed beans at twelve shillings here. I have none of your sacks, I shipped you three or four sacks more than I received from you.
    Yours truly,
    T.'J. REYNOLDS.

      Buffalo, April 17, 1874.
    T. J. Reynolds:
    Yours of the sixteenth received, we sent you 180 sacks for potatoes. Please be careful and send nothing but prime stock (peaehblows). Ship as soon as possible, as follows:
    Irving Hester & Oo., care C. M. Shattuck, agent Lake Shore R. R., Buffalo, N. Y.
    Yours, etc.,
    IRYING KESTER & CO.
    Buffalo, May 1, 1874.
    T. J. Reynolds:
    Please inform us how soon you will be able to ship the car of potatoes, we want them as soon as you can ship them.
    Yours, etc.,
    IRYING KESTER & GO.

    Office of T. J. Reynolds,
    Dealer in Grain, Seeds and Country Produce. ¡-
    Livonia Station, N. Y., May 2, 1874. j
    Irving Hester & Co.:
    Gents. — Yours of the first inst., at hand. In reply we have the potatoes bought and will ship as soon as drawn in.
    In reference to buckwheat, have none on hand. If you will quote me prices, will try and supply you if possible.
    Yours truly,
    T. J. REYNOLDS.
    The plaintiffs counsel offered to show that in prior dealings between the plaintiffs and defendant, when plaintiffs liad made similar purchases of defendant, after defendant had shipped the' potatoes, he would draw on plaintiffs for the price. On objection by defendant this evidence was excluded. The evidence showed that the potatoes mentioned in the above letters were sold by the defendant to one Comstock, and that the sacks were sent on to defendant by the plaintiffs and returned empty.

      H. O. Day, for the plaintiffs.
    By the terms of this contract it was a condition precedent that the defendant should sack the potatoes in plaintiffs’ sacks, and place them upon the cars before the plaintiffs were obliged to pay. (Grist v. Armour, 34 Barb., 378.) The law neither does nor requires idle acts; nor, on the principle of this maxim, will the law require individuals to bring suits or do other acts which will be fruitless. (.Loomis v. Tifft, 16 Barb., 544.) A demand is excused when compliance therewith is impossible. [Sohroeder v. Hudson R. R. Co., 5 Duer, 62.) It is a cardinal rule in the interpretation of every contract to read it in the light of surrounding circumstances. (Blossom v. Griffin, 3 Kern., 569; Waldron v. Willard et al., 17 N. Y., 466; 1 G-reeiil. on Ev., § 277.)

      Nash <& Sutherland, for the defendant.
    Where no time is agreed on for payment, the delivery and payment are to be simultaneous acts. (Ohapman v. Lathrop, 6 Cow., 110-113; Goonley v. Anderson, 1 Hill, 519-522; Porter v. Rose, 12 Johns., 209-212.) The sale being for cash, attendance at the place of delivery by the purchaser, and readiness to pay for and receive the property at that place, must be proved before a recovery can be had. (Goonley v. Anderson, supra; Bronson v. Wiman, 8 N. Y., 182-188; Ooolc v. Ferral, 13 .Wend., 285-287; Olar'k v. Dales, 20 Barb., 42, 61-65 ; Topping v. Root, 5 Cow., 404; Et vide Cornwall v. Haight, 8 Barb., 327; S. 0., reversed on other grounds, 21 N. Y., 462, but this doctrine affirmed at p. 465.) Nothing but an unqualified refusal, by word or deed, on the part of the vendor, will relieve the purchaser from this obligation. (Dana v. Fiedler, 1 E. D. Smith, 463; Bunge v. Koop, 5 Robt., 1; Wheeler v. Grasia, id., 280; 40 N. Y., 584.) Mere neglect to perform will not suffice, nor will a declaration to a third person by the vendor that he will not be able to deliver. (MoDonald v. Williams, 1 Hilt., 365, 366.) Parol evidence is inadmissible to vary the plain intendment of the contract, as shown by the letter. (Baker v. Higgins, 21 N. Y., 397.)
   Smith, J.:

The nonsuit, we think, was erroneously granted. No time was fixed for the delivery of the potatoes, and the plaintiffs could not have been expected to be at Livonia station at any particular time to receive and pay for them. The parties, I think, did not contemplate payment at that place. The defendant was to put the potatoes into the plaintiffs’ sacks and ship them by the railroad to Buffalo, where the plaintiffs resided. In the letter of defendant, dated the second of May, the defendant wrote the plaintiffs that “he had the potatoes bought, and would ship them as soon as brought in.” This implies that he was to ship or deliver them on board the cars for the plaintiffs, to be transported to Buffalo without previous payment. Nothing was said about payment, and it is perfectly clear, I think, that neither party expected payment to be made, until the potatoes were received at Buffalo.

Delivery to the carrier selected by the plaintiffs was a delivery to them, and that was necessarily to precede the payment. Payment and delivery were not to be contemporaneous acts. The defendant had had, previously, dealings with the plaintiffs, and proposed to send them the potatoes without exacting prepayment, trusting to their credit and responsibility. Doubtless, he would have had the right to stop the potatoes in transitu, after delivery on board the cars, upon the insolvency of the vendees, or exact payment at Buffalo before they reduced them to actual possession. But he was bound to do the first act. He was bound to put the potatoes into plaintiffs’ sacks, and deliver them to the carrier for shipment to them at Buffalo. The sending back their sacks empty, coupled with proof of the sale and delivery of the potatoes purchased and put into them, to Comstock, was a breach of the contract on the defendant’s part, and a refusal to fulfill the same, and in any view excused the plaintiffs from the necessity, if any such ever existed, of demanding the potatoes and tendering the price. It was error, also, to refuse to allow the plaintiffs to show the course of dealing between them and the defendant. Extrinsic facts of this kind are always admissible to aid in the interpretation of contracts, and what is rationally and naturally inferable, or to be implied as to the understanding and intent of the parties at the time of the making of the contract, should be deemed part of it. The nonsuit should be set aside, and a new trial granted upon the usual terms.

Gilbert, J., concurs. Mullin, P. J., dissents in a written opinion.

New trial granted, with costs to abide event.


author: Per Ov/riam:

text:
    HENRY M. HELLER and ANDREW B. JONES, Respondents, v. AMY E. ROSSELLE, Appellant.

      Feme sole — debt contracted before marriage — husband not necessary party to suit to enforce its payment.

    Tlie defendant, while a feme sole, contracted a debt in a business she was then carrying on. Afterward, and before this action, she married. Held, that her husband was not a necessary party defendant in this action.
    Appeal from a judgment entered on the report of a referee. The action was for goods sold to the defendant, who was, at the time, a feme sole, carrying on a separate business in her own name, and for her own account. She afterward married, and is sued by her married name for an account made with the plaintiff before marriage. The referee held her liable to be sued alone, without her husband, and gave judgment for the amount of the account, from which defendant appealed to this court.

      Ralph Glasgow, for the appellant.

      W. Worth Dewey, for the respondents.
   Per Ov/riam:

This judgment is cleaidy right. The defendant was a feme sole when the debt was contracted, and liable to be sued as such upon the demand. Her subsequent marriage did not change her rights or liabilities in respect to said debt. At common law, after the marriage, it would have been necessary to join her husband with her in the action, and he may still be so joined under the act of 1853, chapter 576, as held in Lennox v. Eldred (1 N. Y. S. C., 142), but such joinder is not necessary or imperative. The execution would not go against the husband’s property if he were joined as defendant, as at common law, but would only bind the separate property of the wife.

The husband, in such case, is in no sense responsible for the debt, except in respect to the property of the wife which may come to his possession by the marriage. For this he would be liable to account in a proper proceeding against him, if the separate estate remaining in the hands of the wife should prove insufficient to discharge the judgment.

The judgment should be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    GEORGE W. PATTERSON, Jr., Respondent, v. HENRY H. BIRDSALL and RACHEL E. BIRDSALL, Appellants.

      Hguity — Subrogation— Usury.

    A., the owner of certain real estate, entered into an agreement with B., who had held a second mortgage thereon, in a suit upon which a decree of foreclosure and sale had been entered, that B. should sell said real estate under the decree, and should purchase the same, and should then take an assignment of the first mortgage and convey said property to A., who should thereupon give hack to B. a mortgage thereon for the amount secured by the decree and the first mortgage. B. sold the premises under the decree, purchased them, conveyed them to A., took back a mortgage for the amount agreed upon, and thereafter paid the amount of the first mortgage to the holder, and took a satisfaction-piece thereof instead of an assignment. B. afterward commenced an action to foreclose the mortgage given to him by A. after his conveyance of the property to A. This action resulted in a judgment declaring said mortgage to be usurious and void. B. then commenced this action in equity to have the mortgage for which he had paid the owner and received a satisfaction-piece declared a lien upon the premises, asking that he he subrogated to the rights therein enjoyed by the owner, prior to the payment of the amount thereof by B. to him, and asked that the parties to this action be foreclosed of their rights and interests in the premises, and that the same be sold. Held, that he was entitled to such relief.
    Appeal from a judgment in an action in equity tried by the Hon. Jas. C. Smith, at Special Term, in Steuben county.
    The judge, at Special Term, found that all the facts alleged in the complaint were proved and established. The complaint alleged, in substance, that on the 15th day of May, 1859, the defendant Henry H. Birdsall executed under his hand and seal, and delivered to one Brundage Tompkins, a bond dated that day, in the penal sum of $4,000, and to secure the payment, of the principal sum and interest mentioned in the condition of the said bond, the said defendants, Henry H. Birdsall and Rachel E. Birdsall, did at the time execute under their hands and seals, and acknowledge and deliver to the said Brundage Tompkins, as collateral to said bond, a mortgage bearing even date with said bond, whereby they mortgaged to said Brundage Tompkins, in fee, certain lands and real estate, in said mortgage described, and the same was duly recorded in the clerk’s office of the county of Steuben, on the lYth day of May, 1849; that the defendant, Henry H. Birdsall, failed to comply with the condition of said bond and mortgage.
    That on or about the 20th day of January, 1852, the said defendants, Henry H. Birdsall and Rachel E. Birdsall, to secure the payment to Stephen T. Hayt and Benjamin A. Towner of the sum of $4,800, according to the condition of a bond then executed and delivered to them by the said Henry H. Birdsall, executed and delivered to said Hayt & Towner a mortgage on the premises above referred to, which mortgage was duly acknowledged and recorded in the said clerk’s office of the county of Steuben; that on or about the 20th day of April, 1858, the said bond and mortgage last aforesaid were by the said Hayt & Towner duly assigned to this plaintiff and one John N. Hungerford, who were then partners, and they became and were the owners and holders thereof; and^ there was due and unpaid on said last mentioned bond and mortgage about the sum of $1,500; that on or about the said 20th.day of April, 1858, this plaintiff and said Hungerford, copartners as aforesaid, -brought an action in this court against said defendants, Henry H. Birdsall and Rachel E. Birdsall and others, to foreclose said bond and mortgage so assigned to them by said Hayt & Towner, and that such proceedings were had therein, that on or about the 9th day of August, 1858, a judgment or decree of foreclosure was perfected therein and entered in the office of the clerk of Steuben county ; that himself and said Hungerford having the said decree of foreclosure, and the principal of said mortgage to Brundage Tompkins having become due and being unpaid, and large arrears of interest having accrued thereon, it became necessary for the plaintiff and Hungerford, in order to protect their lien and interest under said decree, to pay or provide for the payment of said mortgage to said Brundage Tompkins; and the defendants, Henry H. Birdsall and Rachel E. Birdsall, were desirous that all the title and interest of said Henry H. Birdsall in and to the said, lands should be divested, and that the title thereto be conveyed to said Rachel E. Birdsall, discharged from all estate and interest of said Henry H. Birdsall therein, and from all liens thereon created by him, except the amount due plaintiff and said Hungerford, and the amount of the said Tompkins mortgage; and for that purpose that said premises should be sold on said decree, and plaintiff and Hungerford should become the purchasers thereof, and convey said premises to said Rachel E. Birdsall, upon her securing the pajmient of the amount of said decree, costs and expenses, and said Tompkins mortgage. And the said premises were then sold on said decree, and plaintiff and said Hungerford became the purchasers thereof, and it was agreed between plaintiff and said Hungerford on one part, and Henry H. Birdsall and Rachel E. Birdsall on the other part, that they, Hungerford and plaintiff, should advance the sum necessary to pay said Brundage Tompkins the amount due on his mortgage, which should not be satisfied, but an assignment thereof procured so that the lien thereof should be preserved, and that they should convey said premises to said Rachel E. Birdsall, and that she should execute her bond and mortgage on said lands to them, to secure the payment of the’purchase-money*agreed upon as the condition of said conveyance, which included the amount of said decree, costs and expenses of sale, and the amount to be paid to the said Brundage Tompkins, and, in pursuance of said agreement, plaintiff' and said Hungerford became the purchasers of said land and sole owners thereof under said decree, and received a conveyance thereof from the sheriff of Steuben county, who made the sale, and thereupon conveyed the same to said Rachel E. Birdsall; and the said Rachel E. Birdsall, to secure the purchase-money, executed and delivered her" bond and mortgage upon the same premises to plaintiff and said Hungerford, for a sum exceeding the amount of said decree, costs and expenses of sale, and the amount so to be paid to said Tompkins.

      That on or about the month of December, 1858, the said firm, composed of this plaintiff and said Hungerford, was dissolved, and this plaintiff became the owner of the assets of said firm, including the agreement between said Birdsall and said firm, and all right thereunder, and all rights, benefits and property of said firm, and engaged to perform the obligations of said firm.
    That afterward, and on or about the 16th day of May, 1859, he remitted to one O. W. Swift, the agent and attorney in fact of said Brundage Tompkins, the sum due and unpaid on said bond and mortgage so executed and delivered to him by said Henry H. Birdsall, as aforesaid, which then amounted to about the sum of $2,278.85, and requested said Tompkins to execute an assignment of said bond and mortgage, and forward the same and said bond and mortgage to this plaintiff. And said Tompkins, on the receipt of said sum, forwarded to this plaintiff said bond and mortgage, but did not forward an assignment thereof as requested, as aforesaid, but instead thereof forwarded a satisfaction-piece thereof executed by said Swift as the attorney in fact of said Brundage Tompkins.
    That said satisfaction-piece was never delivered to either of the defendants, nor had it ever been recorded, or said mortgage satisfied of record, but said bond, mortgage and satisfaction-piece had ever remained in the possession of the plaintiff, and said bond and mortgage had never been paid or satisfied in any way, except as therein stated.
    That in the month of December, 1860, he instituted proceedings to foreclose the said mortgage given by said Rachel E. Birdsall and Henry H. Birdsall to this plaintiff and said Hungerford, on or about the 1st day of November, 1858, as aforesaid, by advertisement, and that thereupon the said defendants, Henry H. Birdsall and Rachel E. Birdsall, commenced their certain action in this court against this plaintiff, to have said mortgage declared to be usurious and void, and that the same be delivered up and cancelled, and for an injunction restraining the sale and foreclosure under said advertisement, and that such proceedings were had in said action, that by the judgment of said court duly entered of record in Steuben county, on the 9th day of November, 1863, it was adjudged and decreed that the said sale by the sheriff of Steuben county to this plaintiff and said Hungerford, and said conveyance to said Rachel E. Birdsall, and the said mortgage last therein referred to, were void, and that said conveyance and said mortgage be cancelled, delivered up, and discharged of record, and the said bond be cancelled and delivered up.
    That the plaintiff was informed and believed that said conveyance and mortgage were duly cancelled and discharged of record.
    That from said judgment an appeal was taken at the General Term of this court, where the said judgment was affirmed, and from such affirmance an appeal was taken to the Court of Appeals, by which court the said judgment was affirmed, in or about the month of June, 18J2.
    That there was still due and unpaid on said first mentioned bond and mortgage the sum of $2,000, and interest thereon from the 15th day of May, 185J, and that no proceedings at law had been had to recover the sum, so secured by the said bond and mortgage, or any part thereof.
    And that George B. Bradley, Amaziah S. Kendall, and The Erie Railway Company had, or claimed, some interest in or lien upon said mortgaged premises, or in some part thereof, which interest or liens had accrued subsequently to the lien of said mortgage.
    The plaintiff, therefore, asked judgment that he be declared to be the owner of said bond and mortgage executed and delivered to said Brundage Tompkins, and that he be subrogated to the rights of said Brundage Tompkins in respect thereto, and that the same is a valid and subsisting lien on said premises to the amount unpaid thereon as aforesaid, and that said satisfaction-piece, executed by said Swift, be cancelled and annulled, and that the defendants and all persons claiming under them, or either of them, subsequent to the commencement of this action, might be barred and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises; that the said premises might be decreed to be sold according to law; that the moneys arising from said sale be brought into court; that the plaintiff might be paid the amount due on said bond and mortgage, with interest to the time of such payment, and the costs and expenses of this action, so far as the amount of such moneys would pay the same, and that the plaintiff might have such other and further relief within the premises as should be just and equitable.
    The following opinion was delivered at the Steuben county Special Term:
    Jambs O. Smith, J.:
    An attentive examination of this case has led me to the conclusion that the action is well founded. The defense seems to rest mainly upon two propositions, neither of which, in my judgment, can be sustained. First, that the prior mortgage and the debt represented by it, are absolutely satisfied and extinguished, in equity as well as at law; and secondly, that the.money advanced to the holder of the prior mortgage, was a loan to the defendants. These and several minor propositions advanced by the defendants’ counsel, I proceed to consider.
    The fact that the plaintiff' and Hungerford, on paying the Tompkins mortgage, took a discharge instead of an assignment of the security, is not of itself a bar to the equitable relief sought by the plaintiff' in this action, provided his claim is free from objection in other respects. If the plaintiff and Hungerford are to be regarded as having made such payment, as sureties of the defendants, in the exercise of the right of redemption as junior mortgagees, the plaintiff (who has acquired the interest of Hungerford) is entitled to be subrogated to the rights of the prior 'mortgagee, for his own protection, even although the redemption was made in the form of payment and satisfaction, amounting, at law, to an extinguishment of the debt. The fact of payment by a surety works a subrogation. The general principle has been well stated by an eminent judge in the following words: “ When a person has paid money for which others were responsible, the equitable claim which such payment gives him on those who were so responsible, shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substituted to every equitable intent and purpose, in the place of the creditor whose claim he has discharged. The surety is supposed to stand in the place of the creditor as completely as if the instrument had been transferred to him, or to a trustee for his use.” (Lidderdale v. Robinson, 2 Brockenbrough, 159; 12 Wheat., 594; 1 Lead. Cas. in Eq., 118; see, also, Ellsworth v. Lockwood, 42 N. Y., 89, and cases there cited by Sutherland, J.; Shetterly v. Gerwig, 64 Barb., 620, 626; S. C., affirmed in Court of Appeals.)
    Upon this equitable principle the plaintiff relies for the attainment of the relief demanded in his complaint. He contends that, as the security which he and Hungerford received from the defendants, to indemnify them for the money advanced to pay the Tompkins mortgage, has been adjudged void, in an action instituted by the defendants for that purpose, the payment should be regarded as having been made by himself and Hungerford in the exercise of their right of redemption as junior mortgagees, and that the plaintiff is entitled to subrogation.
    In answer to that position, the defendants insist that the advance to pay the Tompkins mortgage grew out of, and was a partial performance of the usurious agreement which rendered void the plaintiff’s security, and therefore the .money so advanced is forfeited under the provisions of the statute against usury, and the plaintiff can claim no benefit from the transaction. And if that position is sound, it follows, not only that the plaintiff has not the right of subrogation in respect to the prior bond and mortgage, but also that such bond and mortgage, and the debt represented by them, are absolutely extinguished, and the defendants are discharged; for if the plaintiff cannot enforce the debt no one can.
    But what is there in the transaction which a court of equity can regard as a satisfaction of the debt ? The defendants have not paid a dollar of it. It was an honest and subsisting debt prior to and at the time of the making of the usurious agreement, and therefore it could not have been infected with the vice of that agreement; nor was it satisfied by the substitution of the new securities which were after-wards adjudged to be usurious and void. In these several respects, it is on the same footing as is the judgment of foreclosure which the plaintiff and Hungerford had obtained on their junior mortgage, the validity of which is not questioned by the defendants’ counsel, notwithstanding it was satisfied in form by the sale which was had in pursuance of the usurious agreement.
    It is suggested by the defendants’ counsel that, as the plaintiff and Hungerford owned the judgment referred to at the time when they entered into the usurious agreement, and as their interest in the prior mortgage (if they obtained any) was acquired after said judgment was made, there is a material difference between the two securities. If the agreement had provided, in terms, that the plaintiff and BLungerford should purchase the Tompkins mortgage and take an assignment of it instead of paying it, and they had done so, it is clear, I think, that the mortgage in their hands would not have been infected with the taint of usury, and their title would have been good. The case of Kellogg v. Adams (39 N. Y., 28), as I read it, is an authority in point. There it was made part of a usurious agreement, that the plaintiff should obtain an assignment of an outstanding mortgage made by the defendant, and hold it and give the defendant further time upon it for a usurious consideration ; all which was done. It was decided that although the agreement was usurious, yet, as the mortgage was a valid security when the plaintiff purchased it, he acquired a good title and had a right to foreclose. In the present case it is evident from the letter of Birdsall to Swift, written after the agreement was made, that Birdsall was indifferent whether-the prior mortgage was discharged or assigned. Nor is there any reason to doubt but that Swift, after receiving Birdsall’s letter, was willing to have assigned the bond and mortgage if his power of attorney had authorized him to do so. It is also evident from ..the language of the agreement, and the circumstances attending its execution, that the provision for a payment and discharge, instead of an assignment, was adopted merely for the convenience of'including the entire indebtedness in one bond and mortgage. So far as the evidence discloses, the defendant had no substantial right or interest to be sub-served by taking up the old bond and mortgage and putting its amount in the new security. The only difference between Kellogg v. Adams (supra) and the present case is, that there the plaintiff took the legal title by assignment, while here the plaintiff and BLungerford, if they paid as sureties, acquired the equitable title by subrogation. In each case the purchase was made in pursuance of a usurious agreement, and in part performance of its provision. The case of Kellogg v. Adams, therefore, seems to be authority for saying that the interest of the plaintiff and Hungerford in the prior mortgage, is not affected by the circumstance that it was acquired in pursuance of the usurious agreement, and that the distinction adverted to by the defendants’ counsel, between the mortgage and judgment, does not involve any substantial difference between the two securities in respect to their validity, or the validity of the plaintiff’s title to them.
    Thus far, the case has been considered upon the assumption that the plaintiff and Hungerford paid the prior mortgage as sureties. The defendants’ counsel contends that they paid as principal debtors, they having assumed such payment by their agreement with the defendants. The answer is that the agreement having been adjudged void from its inception, at the election of the defendants, it cannot now be set up as the basis of a legal obligation on the part of the plaintiff and Hungerford, or to affect their pre-existing rights. The agreement being void, the question whether the plaintiff and Hungerford paid the prior mortgage as sureties, or as principal debtors, is to be decided as it would be if the agreement had not been made. In that view of the case the payment was an act which the plaintiff and Hungerford were under no legal obligation to perform. But they had a right coupled with an interest to make the payment, for the purpose of redeeming the prior mortgage for their own protection, and I think the payment is to be regarded as having been made in the exercise of that right.
    The defendants’ counsel also contends that the advance to pay the Tompkins mortgage was a loan to the defendants. That I regard as really the turning point in the case. If that position could be maintained, it unquestionably would defeat the action. But, was the advance a loan, having its inception in the usurious agreement ? No new debt was created by it. Merely, the pre-existing debt changed hands, and one creditor was substituted for another, as was the case in Kellogg v. Adams. The money that was advanced did not become the property of the defendants. It was not put into their hands, nor was it. at their disposal or under their control. It was applied to the specific purpose of paying a prior incumbrance which the parties paying had an interest in redeeming. Indeed, the advance to Tompkins was a transaction with him, and not with the defendants. True, the agreement with the defendants required the plaintiff and Hungerford to pay the Tompkins mortgage, but it did not bind them to pay any specified sum. If the payment satisfied Tompkins, the agreement was performed. If Tompkins had been willing to relinquish the bond and mortgage for less than the debt, the discount would not have profited the defendants. In view of these considerations, I am of opinion that the money advanced to Tompkins cannot be treated as a loan to the defendants, within the meaning of the statute respecting usury.
    But the argument of the defendants’ counsel assumes that the vice of usury, in some way, infected the advance made upon the Tompkins mortgage, because it was made in pursuance of the usurious agreement. The case of Kellogg v. Adams, as has been said, is an authority against that position. Usury cannot be predicated of any agreement, other than one for the loan or forbearance of money. The only feature of the agreement in this case which made usury possible, was the stipulation to forbear the pre-existing debt. And the only circumstance that made the stipulation for forbearance usurious, was the provision fora homes in excess of the legal rate of interest. Those features of the agreement in no way touched or affected the pre-existing debts, except as they extended the time for their payment. Nor did they touch or affect the transaction which the plaintiff and Hungerford had with Tompkins. With him they made their own bargain. That bargain has not been annulled by the judgment of the court which pronounced the agreement with the defendants usurious, and it could not be annulled, for Tompkins was not a party to the suit in which the judgment was rendered, or to the usurious agreement. That transaction stands, therefore, and I am unable to see why it does not transmit the equitable title to the bond and mortgage as effectually, as if the usurious agreement had not been made. Nor is' there any thing inequitable in this view of the case. It is a matter of indifference to the defendants whether the prior mortgage is held by Tompkins or the plaintiff. And the final result will be strictly equitable to all parties; that is to say, the defendants having been relieved by the former judgment from the payment of the usurious bonus, will be required to pay what they honestly owed before the usurious agreement was made, and nothing more.
    My conclusion is that the plaintiff is entitled to the relief asked in his complaint, with costs.

      Geo. T. Spencer, for the plaintiff.
    The right of subrogation is co-extensive with the right of redemption, and arises in all cases where a party, having an interest in real property, either as owner or incumbrancer, pays off a prior incumbrance for protection. (McLean v. Tompkins, 18 Abb. Pr. R., 24; Tompkms v. Seely, 29 Barb., 212; Dauchy v. Bennett, 7 How., 375 ; Jenkins v. Continental Ins. Co., 12 id., 66; Averill v. Taylor, 8 N. Y., 44; Pan'dee v. Van Ankin, 3 Barb., 534; Flsworth v. Lockwood, 42 N. Y., 89, 96, 97.) The right of redemption and subrogation by law' is inconsistent with the right to an assignment of the debt, and of the evidence of the debt, so far, or inasmuch, as the assignment assumes the continued existence of the debt, and subrogation by law assumes its payment. (Silver Lake Bank v. G. North, 4 Johns. Oh., 370 ; 2 Story’s Eq. Jur., §§ 1023,1024; 2 Barb. Oh., 194 ; McLean v. Towle, 3 Sandf. Oh., 117; Marsh v. Pike, 10 Paige, 595.) This was also the rule of the civil law. (1 Domat [1784], 6.99.) A junior mortgagee, who pays off' a prior mortgage under an agreement, or upon a consideration which has been annulled or has failed, or upon a. sure security which has been set aside or is invalid, is equally entitled to subrogation as if he had simply paid off such mortgage for his own protection, without any arrangement for the purpose. (Madison Avenue Baptist Church v. The Baptist Church in Oliver St., 2 Robt., 642; Robinson v. Ryan, 25 N. Y., 320.) Plaintiff may therefore stand upon the Tompkins mortgage, paid by him more than six months after the alleged usurious agreement, entirely unaffected by such agreement, or any transaction connected with the same. (Gerwig v. Shetterly, 64 Barb., 620.) This is a clear case sustaining the position of the plaintiff. And the principle is also found embodied in the civil law. (1 Domat [1802], 704.) The Tompkins mortgage was a valid debt, and security against the Birdsalls and their mortgaged premises, and was not satisfied or extinguished by the new security given by them to Hungerford and Patterson, but remained in full force. Their agreement to pay the mortgage was executory, and was substantially an indemnity against it. It was not therefore affected by the alleged usury. (Cook v. Barnes, 36 N. Y., 520 ; La Farge v. Herter, 5 Seld., 241; Rice v. Welling, 5 Wend., 596; McCrany y. Alden, 46 Barb., 472.) The judgment does not in any way invalidate any other part of the transaction, and therefore necessarily affirms the validity of the Tompkins mortgage and the pay ment of the same by plaintiff. The judgment is a bar to any prosecution or defense by the defendants founded on that mortgage, or the payment of the same. {Gates v. Preston, él N. Y., 113; Btaekpole v. Bobbins, é8 id., 665; Newton v. Nook, id., 676.) The judgment is conclusive not only as to the subjectmafter actually decided, but as to every other which the parties might litigate and have decided. {Embury v. Connor, 3 Coins., 511, 512.) The amount of the Tompkins mortgage was not loaned or advanced to defendants; they never had the money or controlled it; the transaction had none of the features of a loan. The agreement in respect to it treats it as a subsisting debt and incumbrance. The decree embraces nothing more, either in terms or by necessary implication. It it a familiar principle that a judgment concludes the parties only as to the grounds covered by it. {People v. Johnson, 38 N. Y., 63, 65.) They have never paid it, but seek dishonestly to avoid the -payment. Plaintiff has paid it under circumstances entitling him to do so, and to be subrogated to the rights of the party to whom the payment was made.

      Geo. B. Bradley, for the appellants.
    The Tompkins bond and mortgage were paid, satisfied and discharged. The advance of the money to pay this bond and mortgage was made pursuant to and in performance of that corruptly usurious agreement; and for that reason the plaintiff cannot make that advance and payment the ground of any claim. {Rice v. Welling, 5 Wend., 595, 598.) The plaintiff had no security prior to this corrupt agreement, for which the amount of this Tompkins bond and mortgage was substituted, but the advance to pay them was the product of that arrangement. He can take no benefit of any thing growing out of that. {Kellogg v. Adams, 39 N. Y., 28, and cases there cited.) All prior valid securities held by plaintiff and Hungerford, involved in the transaction, were restored by the adjudication (Winsted Bank v. Webb, 39 id., 325), and such was the effect upon their decree of foreclosure; but they had no right or interest in the bond and mortgage in question. Their advance grew out of, and was in performance of, the usurious agreement. And that advance was made for the defendants to pay their bond and mortgage, and was a portion of the amount which they undertook, to pay to plaintiff and Hungerford, and was secured by the bond and mortgage of November 1, 1858, made pursuant to the same agreement, and thereby infected with usury. The advance in this case was made pursuant to a corrupt agreement. The defendants, in performance of that agreement, by their bond and mortgage, undertook to pay the sum so advanced. The agreement, pursuant to which the advance and undertaking were made, was usurious. That undertaking of the defendants was the primary product in favor ■ of the plaintiff and Hungerford of their agreement to make, and for making that advance; whatever else there was by way of security was collateral to that undertaking, and was infected by the same, and fell with it. (Dewitt v. Brisbane, 16 N. Y., 508; Sehroejppel v. Corning, 5 Denio, 236.) The plaintiff has no right of subrogation. The court erroneously held that this right arose out of his advance and payment of the Tompkins bond and mortgage. It is a familiar proposition, and not questioned, that a party having an incumbrance by way of mortgage, etc., may, for his protection, pay a prior mortgage, and be subrogated to the right of the prior mortgagee. (Ellsworth v. Lockwood, 12 N. Y., 96.) But the right of redemption does not in all cases carry with it the right of subrogation. (Dauchy v. Bennett, 7 How., 375; Jenkins v. Continental Ins. Co., 12 id., 66, 68, 69.) After their sale and purchase on the decree, if there had been no agreement, they would have had the right of redemption, but not that, of subrogation. (7 How.} 375; 12 id., 66-69.) The position taken by the plaintiff necessarily is, that because the agreement,'pursuant to, and in performance of which, the money was advanced, has been adjudged usurious and void, the advance should be deemed to have been made to pay the Tompkins mortgage in exercise of the right of a subsequent incumbrancer to redeem, and he be subrogated to the rights of the prior mortgagee. That will not do. {Bice v. Welling, 5 "Wend., 598, 590.) If Tompkins had taken for his mortgage substituted security, and it had been adjudged usurious, he could have had his remedy on the original mortgage. But it is believed that no case can be found to support the position that a third party who, pursuant to, and in performance of, a corruptly usurious agreement with the mortgagor, advances money to pay his mortgage,, can take any right by virtue of such advance to or under the mortgage thus paid.
   Per Curiam:

This cause appears to have been very carefully considered at Special Term, and I think the judgment can be properly affirmed on the opinion of the learned judge there delivered, and should be so affirmed.

Taloott, J., concurs. Mullin, J., dissents.

Judgment affirmed.