text:
    Ricka Zorkowski, App’lt, v. William Waldorf Astor, Resp’t.

      (New York Superior Court, General Term,

      Filed July, 1895.)

    1. Landlord and tenant—Appraisement of building.
    Where the lease provides that the lessor may, at the expiration of the term of the lease, either renew the lease or pay the appraised value of the building erected by the tenant, an appraisement of the leased land and the building is not vitiated by the fact that it was made without evidence of value, where no one proposed to give such evidence.
    3. Same.
    Such appraisement is not rendered void, because one of the appraisers mentioned to the others some facts relating to the rental values in the neighborhood in the absence of the tenant.
    Appeal from a judgment, dismissing the complaint.
    . F. R. Gouclert and G. A. Flammer, for app’lt; Flihu Root, and G. A. Peabody, Jr., for resp’t.
   Per Curiam.

The plaintiff filed her bill in equity to set aside an award appraising the fee value of the certain lot of land known as “No. 253 West Forty-Fourth Street,’’ this city, and the building thereon,—the lot at $12,000, and the building at $9,500. The defendant owned the lot By indenture dated July 10, 1872, it was leased by his predecessor in title, John J. Astor, to James Henderson and James Blackhurst, for the term of twenty yearn and six months, commencing November 1,1871, and ending May 1, 1892. The plaintiff, prior to January 1, 1892, succeeded to all the title of the lessees.

The lease contained the following provision :

“And the said parties, for themselves and their legal representatives, mutually covenant and agree that provided the said parties of the second part and théir legal representatives shall observe, keep, and perform all the covenants and agreements herein contained on their part to be kept and performed, and if there shall be standing on the said demised premises at the expiration of the original term of this lease the building which the said parties of the second part have erected on the demised premises under a lease heretofore granted to them, viz., a dwelling-house, not less than three stories in height above the basement, with front of brown stone, yellow stone, or Philadelphia brick, covering the whole front of the lot, or any building of similar description in its place in case of its destruction, then, and in such case, each of the said parties, or their legal representatives, during the thirty days immediately preceding three months before the expiration of the term hereby granted, shall choose one disinterested reputable freeholder in the city of New York, and the two thus chosen shall select a third person, also being a freeholder in said city; and the persons thus chosen and selected, first being duly sworn or affirmed for such purpose, shall value and appraise the fee-simple value of the said lot of land, exclusive of the house standing thereon, and shall also value and appraise the house standing on the front of said lot, which said valuation and appraisal made by the said appraisers, or any two of them, shall be reduced to writing, and signed by them, or any two of them, in duplicate, and one part thereof delivered to each of the said parties, or their legal representatives, within thirty .days after the appointment of the said appraisers. And the said party of the first part covenants, for himself and his legal representatives, that, in case he or they do not elect within thirty days after the receipt of such appraisal to pay for the said building at such appraised value, he or they will grant a renewal of the said lease for a further term of twenty years at an annual rental equal to five per cent, upon the said appraised value of the said lot, to be paid quarterly; and, further, that, in case he or they elect to take the said building at the said valuation, he or they shall pay to the said parties of the second part, or their legal representatives, the amount of such valuation at the expiration of the term hereby granted, provided the said building shall then be in the same good order and condition as when valued as aforesaid.” About three months before the expiration of the first term of the lease, the defendant chose George R. Read, and the plaintiff chose James A. Lynch, as appraisers, under the above provisions, and on March 14, 1892, these two selected Thomas C. Acton as umpire or third appraiser. At a meeting held March 17, 1892, upon hearing the parties, and after discussion among the three appraisers, a majority agreed upon a valuation, to wit, $12,000 for the lot, and $9,500 for the house standing thereon; but Appraiser Lynch, who had been chosen by the tenant, refused to act further in the appraisal. Thereafter the remaining appraisers, Messrs. Acton and Read, signed as of March 17th, a formal appraisal of the premises in question at the value agreed upon, which was delivered to the plaintiff on March 21, 1892. On the same day the defendant notified the plaintiff of his election to renew the lease pursuant to the appraisal. The plaintiff refused to accept the appraisal, and brought this suit, upon, substantially, the following grounds: (1) That Appraiser Read was not a disinterested freeholder; (2) that Appraiser Acton was improperly selected ; (3) that the formal appraisal before its delivery, on the 21st of March, ought to have been submitted to Appraiser lynch for his signature, and was irregular and invalid, because not so submitted; (4) that certain briefs which some of the tenants claimed had been submitted to the appraisers were not read; (5) that Appraiser Read stated to his fellow appraisers some facts regarding rental values of real estate in the neighbood which had not been stated while the 'tenants were present; (6) that the value of the building upon the lot in question was not, in fact, passed upon; (7) that the appraisement was grossly excessive as to the lot, and grossly inadequate as to the building.

The issues were referred to Stephen P. Nash, Esq., who filed the following opinion:

“I think-the plaintiff has failed to make out a case for setting aside the award, by reason of the alleged unfitness of the appraiser nominated by the landlord, or of the mode in which the third appraiser was selected. Mr. Read’s business relations with the landlord were not such as to disqualify him as an appraiser, nor were there any representations whatever made to the tenants -or their appraiser in respect to him. He was not incompetent, I think, within the case of Bradshaw v. Agri. Insurance Co., 137 N. Y. 137; 50 St. Rep. 174. Nor was the mode adopted for securing the third appraiser objectionable. I do not find the slightest evidence that Mr. Baker, who declined to act himself, but furnished two lists of names for the consideration of the two appraisers, did so with any sinister intent. The names on these lists were of men prominent in financial circles. Mr. Lynch might have objected to them on that ground, but he exercised his own judgment independently, and that the choice fell upon Mr. Acton was clearly not due to any trick or device.
“ I have also come to the conclusion that there was no such irregularity in the proceedings of the appraisers as vitiates their appraisement. They heard the tenants at length. None of the tenants asked for an adjournment. No one proposed to give evidence as to values, and that the appraisers made their valuation without evidence is no ground for impeaching their conclusion. Cobb v. Dolphin Manuf. Co., 108 N. Y. 463; 13 St. Rep. 697. They were assumed to be competent judges of the value of lands in the vicinity, and that they did not take several days in determining such value can hardly be ground for impeaching their conclusions.
“ But it is claimed that, having agreed on a basis of valuation before separating, the two appraisers who so agreed should have given Mr. Lynch, who dissented, another opportunity for acting with them by submitting to him the appraisements drawn up in accordance with such valuation. The two appraisers testify that he absolutely refused to agree to that basis. I think he substantially admits this.
“ It is argued that the memoranda made during the session ■ of the appraisers, as to the value of a full lot, was an award which could not be completed afterwards. I think this view is erroneous. Two appraisers agreed upon a basis of valuation to be applied to the several lots and houses by computation. What remained to be done was a simple apportionment. They had the form of an award furnished them, with blanks. They filled up the blanks, and signed the completed instruments. I cannot see that this impairs the validity of the award. Maynard v. Frederick, 7 Cush. 247; Blodgett v. Prince., 109 Mass. 44. No irregularity, it must be conceded, occurred during the hearing of the tenants. After this the appraisers remained in consultation. What is complained of is what occurred during this consultation, during the animated discussion of at least an hour, testified, to only by the arbitrators themselves, the attacloon the conduct of two of them being made by the other. There were no notes kept of these discussions, and no one but the appraisers was present. I doubt whether much reliance should be placed on testimony of this character. In some tribunals I think it would be incompetent. See Duke of Buccleuth v. Board of Works. L. R., 5 H. L. 418. One can hardly imagine the discussions of judges in consultation being made the ground of annulling their adjudication upon the testimony of a dissenting judge; and the evidence of jurors to impeach their own verdict is received with very strict limitations. Thomas v Chapman, 45 Barb. 98. Declarations of admissions of jurors or arbitrators are open to still graver objections. Clum v. Smith, 5 Hill, 560; In re Whiteley (1891) 1 Ch. Div. 558. I have, however, examined the testimony of the appraisers with care. Mr. Lynch went into the arbitration, with the idea that the restrictions in the lease ought necessarily to lead to a low rental ; and he seemed to desire to discuss the various aspects of the case in that view. The view of the other arbitrators seems to have been that what they had to do was to value the land, not to fix the rental; and they concur in testifying that they gave effect to the restrictions as impairing such value to the extent of about twenty per cent., placing the values of a full lot of twenty-five feet front at §20,000, unrestricted, at $16,000 restricted. Mr. Lynch testifies that he said to his associates that he did not think there could be much difference between them as to the value of a full lot free and unincumbered. The discussion, however, as he stated it, and as it is presented in the argument of the tenants, of which the brief of one of them (Mr. Smith) may be considered as an abstract, discloses that the claim on the part of the tenants was substantially that the appraisers should fix a reasonable ground rent, or at least put such a valuation on the land as would give a reasonable rent. Mr. Action said: 1 What we have to do is to appraise the value of the land.’ And several expressions imputed to him indicated that, the hardship of the terms of the lease being urged, his response was that, as to that, they must go to the landlord; that the appraisers could not change the. terms of the lease, etc. Now, here is undoubtedly the' difficulty of the situation if the award leads to a rental that is too high. A lot may well be worth $12,000 as a vacant lot, and yet five per cent, on that value, the tenant paying taxes and assessments, be, in view of the present rates of interest, a high rent. A landlord might be willing to recognize this fact in negotiating for a renewal, and still, if an appraisement is unavoidable, the terms of the lease must govern. Some of the language said to have been used in the discussion with the tenants, indicates, I think, that this was what was in mind. Mr. Lynch kept urging that Mr. Action should consult the case of Livingston v. Sage, or have some lawyer advise him as to its bearing ; and Mr. Action could not see how any such case as Mr. Lynch described it could affect the value of the lots.
“ Though it does not seem to be very fair to any appraisement to have the discussion between the appraisers, whether brought out by their own examination or by the attack of one of them upon the positions of the others, used to impeach it, I have tried to get at the substantial difference of view, and think I have drawn the correct conclusion, that the majority of the appraisers assumed that their duty in respect to the lot was simply to value it as a piece of land, affected as to the mode of enjoyment by the restrictions in the lease. It is said that Mr. Read used a memorandum as to rentals in the neighborhood, and that he had placed them too high. 1 An appraiser would, of'course, not overlook the rentals in forming his judgment, but they were not so conclusive a«factor as to make it- necessary to ascertain the rentals of each house, whicli might easily vary according to condition of repair, the periods when rented, etc. The house in this case was occupied by its owner.
“ The objection that Mr. Action promised to read the briefs handed in, and that he did not do so, might, under such circumstances, have a bearing on the propriety of his conduct. But, so far as appears, the briefs contained nothing that had not been stated orally. Mr. Action is confused in his testimony as to what he did about the briefs, whether he read them or not.' But what he is reported to have said in respect to having read them ought not to be considered competent evidence against the award.
“ The testimony given to enable me to fix a rental in case the appraisement should be vacated is as discordant as such testimony generally is; and, if I undertook to act upon it, I should be met at once with the question which I think divided the arbitrators : Gan I depart from the terms of the lease and fix any other rental than five'per cent, on the value of the lot, even though I might think that such a rent would be a higher one than the property can afford to pay? I think not. I think the terms of the lease, though possibly onerous, are binding upon the parties. In this view, I do not think that the testimony as to the value of the land would justify me in a conclusion that the appraisement as to such value was excessive. Much of the testimony is largely speculative and quite irrelevant, if the question is only as to the fair value of the lot. But, as I feel it my duty to sustain the award-, I mate no finding in respect to what is the value of the lot; or what should be a. proper rental.”

The statement mad'e by Appraiser Read to his fellow appraisers was not improper, being a mere narrative of his experience. The value of the building was clearly passed upon, and there is nothing in the evidence which warrants the claim that its valuation was inadequate, or that the sum fixed for the lot was excessive. The findings are fully sustained by the proofs, and there is no error which calls for a new trial. The referee properly refused to pass upon the plaintiff’s requests to find. They were submitted under section 1023 of the Code, which was repealed by chapter 688 of the Laws of 1894, and the latter act went into effect June 1, 1894. The requests having been made June 18, 1894, came too late. Lazarus v. Met. E. Railway Co., 65 St. Rep. 523.

For these reasons and those stated by the learned referee, whose opinion is adopted, the judgment appealed from must be affirmed, with costs.


source: Caselaw Access Project

author: McAdam, J.

license: Public Domain

text:
    Maurice P. Quinlan, Pl’ff, v. Peter Conlin, as Chief of the Police Department, etc., Def’t.

      (New York Superior Court, Special Term,

      Filed July 12, 1895.)

    Sunday—Selling soda water.
    Under sections 266, 267 of the Penal Code, the sale of soda water, sarsaparilla and the like on Sunday is unlawful, and one who engages therein may be arrested.
    Application for an injunction to restrain the acting chief of the police department of the city of New York from having the applicant arrested for selling soda water, sarsaparilla, etc., on Sunday.

      Thomas F. Gherry, for motion.
   McAdam, J.

The plaintiff is the proprietor of a saloon at No. 138 Park Row, this city, which has been duly licensed for the sale of liquors. On Sunday July 7, 1895, he removed all intoxicating drinks from his premises and offered for sale thereon soda water, sarsaparilla, ginger ale, and seltzer water. While such sales were going on, plaintiff was arrested by officer Downing, of the Sixth precinct, and arranged before Magistrate Deuel, who discharged him, an the ground that he had committed no offense. Captain Young, the commander of the Sixth precinct, has informed the plaintiff that if he opens his premises for the sale of nonintoxicating drinks on the 14th inst. he will arrest him, and keep on arresting him as long as he persists in selling on Sunday. The plaintiff, therefore, applies for an injunction enjoining the officers from making the threatened arrest, or interfering with his business.

While the sale of soda water, sarsaparilla, and the like on Sunday is not a violation of the excise law, it is a clear violation of the statutes for the observance of the Sabbath, and renders the plaintiff liable to arrest on that charge. Pen. Code, § 266, forbids all trades upon the Sabbath, except where the same are works of necessity; and by section 267 "all manner of public selling ór offering for sale of any property is prohibited, except that articles of food may be sold and supplied at any time before ten o’clock in the morning, and except also that meals may be sold to be eaten on the premises where sold, or served elsewhere by caterers, and prepared tobacco in places other than where spirituous or malt liquors or wines are kept or offered for sale, and fruit, confectionery, newspapers, drugs, medicines and surgical appliances may be sold in a quiet and orderly manner at any time of the day.” Section 269 of the Penal Code provides “that Sabbath breaking is a misdemeanor, punishable by a fine not less than five dollars and not more than ten dollars, or by imprisonment in a county jail not exceeding five days, or by both; but for a second or other offense, where the party shall have been previously convicted, it shall be punishable by a fine not less than ten dollars and not more than twenty dollars, and by imprisonment in a county jail not less than five nor more than twenty days.” All good citizens, and particularly those whose character has been certified as good by the issuing of licenses, should abstain from any infraction of the law. If laws are onerous, relief rests in legislative wisdom and not in judicial discretion. The policy of the state is expressed in the laws made by the representatives of the people, and courts must see that these laws are enforced. Many slight infractions of the law are at times tolerated. But toleration is not license.

Application for injunction denied.


author: Per Curiam.

text:
    Theodor Reichmann, Resp’t, v. Jesse S. Nelson, App’lt.

      (New York Superior Court, General Term,

      Filed July 1, 1895.)

    Pleading—Counterclaim.
    In an action ex delicto, a counterclaim arising on contract, not connected with the subject of the action, cannot be allowed.
    Appeal from judgment in favor of plaintiff.
    The complaint is as follows:
    Plaintiff complains of defendant, and respectfully shows to this court: (1) That at the times hereinafter set forth the plaintiff was the owner of the premises Nos. 7 and 22 St. Mark’s place, in the city of New York. (2) That on or about the 18th day of May, 1891, plaintiff by a certain power of the attorney in writing constituted the defendant his attorney in fact to rent the said premises, to receive the income thereof, to pay taxes, interest on mortgages, insurance premiums, expenses of keeping said premises in repair, and other necessary expenses in and about the care of said premises, and to pay over the net proceeds to plaintiff. (3) That defendant, on or about said 18th day of May, 1891, accepted said ■ power of attorney, received possession of said premises, and has ever since, and until the 16th day of April, 1892, continued in possession thereof, and acted as the attorney of fact of said plaintiff under said power of attorney. (4)- That plaintiff by an instrument in writing dated April 2,1892, revoked said power of attorney, which, said instrument was d'ulv served on the defendant on the 16th day of April, 1892. (ó) On information and belief, that between said 18th day of May, 1891, and said 16th day of April,. 1892, defendant collected and received rents of said premises to-the amount of $7,682.50. (6) That defendant has paid over to
    plaintiff from time to time and accounted for the sum of $5,582.50 and has failed to pay over to plaintiff or to account to him for th& balance thereof, to wit, the sum of $2,100, or any part thereof. Wherefore plaintiff demands judgment against defendant for said sum of $2,100, with interest thereon from the 16th day of April,. 1892, besides the costs of this action.
    The answer is as follows:
    The defendant, answering the complaint of the plaintiff herein, for a first defense: (1) He admits the allegation contained in the-second paragraph of said complaint, that on or about the 18th day of May, 1891, that plaintiff by a certain power of attorney constituted the defendant his attorney in fact, but defendant denies that-said power of attorney, the powers and duties therein conferred upon defendant, or the contents thereof, are correctly set forth or stated in said paragraph of said complaint. And defendant denies that said power of attorney did direct defendant to pay over to plaintiff the net proceeds of the premises mentioned in said complaint, after paying the taxes, interest on mortgages, insurance premiums, expenses of keeping said premises in repair, and other necessary expenses in and about the care of said premises, and alleges that said power of attorney did direct and empower said defendant generally to do all acts and things necessary in and about the management to the property and business therein mentioned,, and that defendant was employed by plaintiff as his general counsel, attorney at law, and attorney in fact, and that the power of attorney referred to in the complaint constituted only a part of such employment, and that such employment empowered this defendant to manage all of plaintiff’s business and affairs in the state of Hew York, to protect his interests, and generally to do and perform for plaintiff all the duties of a general counsel, attorney' at law, and attorney in fact. (2) Defendant denies that he has only paid over to the plaintiff or accounted for him the sum of $5,582.-50, and has failed to pay over to plaintiff or to account to him for the balance, $2,100, as alleged in paragraph six of said complaint. (3) Further answering said complaint, defendant alleges that he has from time to time paid over to plaintiff, paid out for the account of plaintiff, and paid in the management and control of said plaintiff’s business and on his account, the sum of $7,992.50, an amount in excess of that collected by the defendant for plaintiff.
    Further answering said complaint, and for a separate defense, and by the way of counterclaim, this defendant alleges: (1) That defendant is an attorney and counsellor at law of the supreme court of the state of Hew York, practicing in the city of Hew York. (2) That on or about the 18th• day of May, 1891, plaintiff employed defendant to manage and conduct his business and affairs in the state of Hew York, including among other things, the chargee and management of certain real estate described in the complaint,, and did by an instrument in writing, appoint defendant his attorney in fact, and that, in addition to said employment as attorney in fact, said plaintiff did emploj7, engage, and retain defendant as his attorney and counselor at law, to conduct and manage all of plaintiff’s business and affairs in the state of New York. That said relation of attorney and client existed between defendant and plaintiff from the 1st day of May, 1891, up to and until the 16th day of April, 1892; that on or about the 16th day of April, 1892, the plaintiff, through Andrew Wesléy Kent, his attorney in fact, appointed by said plaintiff in relation to said real estate, did demand an accounting of defendant; that in compliance with said demand the defendant on or about the 28th day of May, 1892, made .and rendered to said plaintiff, through his attorney in fact, a complete and full statement and account of defendant’s management of plaintiff’s business and affairs from, the 1st day of May, 1891, up to the 16th day of April, 1892, a copy of which statement and account is hereto annexed, marked" “Exhibit A," and is referred to as and made a part of this answer; that by said .statement and account so rendered and stated by defendant to plaintiff it appears that defendant did receive for said plaintiff while acting as his attorney the sum of $7,682.50, and during said period this defendant did pay out, disburse, and account for to said plaintiff the sum of $7,992.50, leaving a balance due and owing to said defendant from said plaintiff of the sum of $310 ; that said sum ,of $310 is due and owing from plaintiff to defendant; and-that no part thereof has ever been paid. Wherefore, defendant demands that said plaintiff’s complaint be dismissed, and that defendant have judgment against plaintiff on said counterclaim for the sum of $310, with interest from the 16th day of April, 1892, besides the costs of this action.

      Foley & Powell, for app’lt; A. W. Kent, for resp’t.
   Per Curiam.

Under the decisions in Moffatt v. Fulton, 132 N. Y. 507; 44 St. Rep. 653, and Davis v. Aikin, 85 Hun, 554; 66 St. Rep. 706, particularly the former, the action, notwithstanding the omission of the allegation that the moneys were received by the defendant in “a fiduciary capacity,’’ was in form ex delicto, and. the counterclaims arising'on contract not connected with the subject of the action were properly disallowed tiy the referee. The referee, however, properly allowed the defendant credit for matters pleaded by way of counterclaim which pertained to the real estate from which the collections- were made, since these were connected with the subject of the action. We find no error in the rulings, and the judgment must be afifimed, with costs.


text:
    Harvey M. La Follette, Pl’ff, v. William Noble et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed July, 1895.)

    1. Contract—Rescission.
    If a party, who has the right to rescind a-contract, continues to treat the property as Ms own after discovery of the fraud, he will-be considered' to have elected to ratify it, and no action to disaffirm it will lie either at law or in equity.

      2. Injunction—Denial.
    Where the granting of injunctive relief might cause more damage to the defendant than the withholding of it will to 'the plaintiff, the rule is to deny the relief.
    3. Same.
    Where parties are of ample pecuniary responsibility, the remedy should be sought in an action, at law to recover damages for the wrong rather than by injunctive relief in equity.
    Motion to continue a preliminary injunction.
    The Mercury Publishing Company is a corporation created under the laws of the state of New York, August 4, 1894, and engaged in the business of printing and publishing the newspapers known as the Daily America and Mercury, Sunday Mercury and America, and New York Mercury. Its capital stock is $500,000, divided into 5,000 shares of $100 each, of which 4,985 shares were owned by the defendant Cauldwell until the transfer to the defendant Noble hereinafter mentioned, and the remaining shares by friends of the said Cauldwell, who was alleged to be his employes. It is alleged that all the shares were originally issued to Cauldwell in consideration of the sale and transfer to the corporation by him of certain property and effects, consisting of type, printing presses, good will, accounts receivable, etc., theretofore owned by Cauld well and used and employed by him in printing and publishing the aforesaid newspapers, in which business he had for many years prior to the organization of the corporation been engaged. On April 1, 1895, an agreement was made between Cauldwell, of the first part, and the plaintiff, of the second part, by the terms of which the plaintiff agreed to purchase from Cauldwell, and Cauldwell agreed to sell to the plaintiff, all the capital stock, with all the assets then owned by the company, including all franchises, especially United Press, for the agreed price of $130,000, to be paid as follows : On the signing of the contract $20,000, to wit, $5,000 in cash, and $15,000 in two notes of the plaintiff, one for $5,000, payable April 10, 1895, the other for $10,000, payable April 15, 1895, the payment of which notes was secured by the deposit of 50 first mortgage six per cent, gold bonds, of the par value of $1,000 each, of the La Follette Coal & Iron Company of Tennessee; and the balance, $110,000, on or before April‘15, 1895, by four promissory notes of the plaintiff, to wit, one for $23,375, due three months from the date thereof; one for $25,750, due six montus from its date;1 one for $31,350, due nine months after date; and the last for $31,850, due twelve months from its date; the excess over $110,000 of the total amount of said notes being represented by interest at the rate of six per cent, for the time at which the deferred payments should be made. Cauldwell was to hold and retain upon all the assets of the Mercury Publishing Company a chattel mortgage to be made by the corporation for $110,000 and interest, as collateral, until all the said notes were fully paid. The contract was to be closed on or at the option of the plaintiff on his paying the two notes for $5,000 and $10,000, on giving one day’s notice to Cauldwell before the 15th of April, 1895, at the office of the company ; the contract to be adjusted and closed as of the 1st day of April, 1895, and publication of the papers from April 1st until the closing of the purchase to be for and on account of the plaintiff. La Follette paid the first two notes, aggregating $15,000, which, with the $5,000 previously paid, made $20,000, and subsequently advanced $7,000 to run thepnblications; but the balance of the purchase money, $110,000, has never been paid. The plaintiff asserts that he was induced to enter into the contract by reason of misrepresentations made by the defendants concerning the condition and value of the plant agreed to be sold, and on the ground of fraud seeks to rescind the sale and to cancel and annul the contract between the parties and the chattel mortgage given thereunder; to obtain the return of the consideration moneys and advances 'aforesaid, with the securities deposited ; and in the meantime to restrain the sale of said securities and the foreclosures of said chattel mortgage.
    It appears that the defendant Noble made an exchange of properties with Oauldwell by the terms of which the $5,000 shares in the company were delivered to Noble, but subject to the existing contract between Oauldwell and La Follette. So that Oauldwell was at all times able to carry out his contract with the plaintiff. Upon making the contract the plaintiff was put in possession of . the property, and it is conceded that at the time he took possession he knew that the expenses of the publications were from $700 to $1,150 a week in excess of the income. The time for closing the contract was extended by agreement to April 25, 1895, on which day it was closed, and the payment of the notes with in like manner delayed until about tliat time. The old directors resigned, and those nominated by the plaintiff were put in their place. On June, 3, 1895, La Follette entered into a contract with the defendant Ball, in which it is recited that the' plaintiff, having control of the entire capital stock of the company, covenants and guarantees to Ball that he (the plaintiff) has procured an actual and bona fide agreement for the sale of the same with responsible parties for the sum of at least $187,000, which is to be consummated by July 15, 1895. He also covenants and warrants that the entire indebtedness of the company, contracted and unpaid since April 1, 1895, does not exceed $7,000, exclusive of the amount due to William Noble, and for paper. The agreement further recites that the plaintiff has applied to Ball-for pecuniary assistance; that Ball has agreed to advance him certain moneys to-pay certain obligations in connection with the running of the paper; that for all sums so advanced Ball shall receive notes or acceptances of not over sixty days, indorsed by the company and the plaintiff and secured by bonds of the La Follette Goal & Iron' Company of the par value of $12,000, the same being deposited with Balias collateral; and that all 'such notes, whether due or not, shall be paid 'forthwith out of the first payment made on account of the contemplated purchase of $187,000. Under this contract Ball made certain advances and received 4,975 shares of the. company’s stock and twelve bonds of the La Follette Coal & Iron-Company. Ball received" the money he advanced to the plaintiff, from Noble; and was in a-sense acting in'the interest of the latter.On May 13, 1895, Thomas B. Kirby, Charles A. Bay, John P. Miller and Eugene Davis, on behalf of a syndicate, called on the argument “ the silver men,” made a written offer to the plaintiff to purchase of the company its newspapers, franchises and assets for the sum of $187,000, which offer the plaintiff, in writing, accepted, and the purchase was then and there regarded as closed. The $187,000 was to be paid July 15, 1895, and this constituted the fund out of which the plaintiff evidently intended to reimburse Ball and pay to Oauldwell the unpaid portion of the purchase money due to him in full satisfaction of the contract he held. Some arrangement was made on June 29, with regard to omitting protest on the note for $25,375. On July 16, after the dishonor -of this note, defendants gave notice of their intention to foreclose the chattel mortgage and to sell the securities on account of the nonpayment of this obligation, the agreement providing that in case of the nonpayment of the notes hereinbefore referred to, or any of them, the chattel mortgage might be foreclosed and the securities disposed of. The plaintiff then took the position that he had been induced to enter into the sale by fraudulent misrepresentations, and on July 18 brought this action, claiming the relief aforesaid. He obtained a preliminary injunction, and the motion is to continue it pendente lite.

      James B. Dill and D. W. Armstrong, for motion ; John M Parsons and O. H Butler, opposed.
   McAdam, J.

It is apparent that when the plaintiff made the purchase he knew that the Mercury Publishing Company was not a paying concern, but was running at a loss of from $700 to-$1,150 per week, and he evidently purchased with the idea that when he obtained control this result would in some manner be changed to his advantage. It is more than likely that he had in view the sale which he subsequently made to the syndicate known as the “ silver men,” by which he was to realize a profit of about $57,000. At all events he agreed to pay $130,000 for a newspaper which he knew would be a financial burden to run ; and it is plain that he purchased the property knowing that without some good fortune or masterstroke of geniué the concern must eventually involve him in heavy pecuniary loss. After events proved that his hopes and expectations must have rested with the silver men, in whom he seemed to have great confidence, for he obtained from them on May 14 the offer in writing for $187,000, which he on the same day accepted in writing. And that he sincerely believed the pur-' chase would be consummated by the silver men appears in his contract with Ball, in which the plaintiff under his hand and seal declares “ that he has procured an actual and bona fide agreement of sale of the same with responsible parties for the sum of at least $187,000, and which is to be consummated by the fifteenth of July, 1895; ” and Ball is promised a pro rata share of the profits for the assistance he was to render. If the silver men had consummated their contract, the plaintiff would certainly have completed his, for his profit depended upon that contingency. But the silver people defaulted; Ball did not get what was promised; plaintiff was disappointed, and could not, with his meager capital, continue to carry his burden, much less pay the maturing obligation to Cauldwell, amounting to $110,000, with interest. He could do but one thing, that is, repudiate, and this solely on the ground of fraud, and could save his securities only on the theory of rescission. Assuming, but not deciding, that the plaintiff was induced to enter into the contract with Cauldwell through fraud, has he a right to rescind, and does it extend to invoking a court of equity to assist in the effort? ”

A party induced to part with his property on a fraudulent contract may, on discovering the fraud, avoid the contract and claim a return of what has been advanced upon it. Fraud destroys the contract ab initia, and the fraudulent purchaser has no title. But if the party defrauded would disaffirm the contract, he must do scat the earliest practicable moment after discovery of the cheat. This is the time to make his election,-and it "must be done promptly and unreservedly. He must not hesitate ; nor can he be allowed to deal with the subject-matter of the contract and afterwards rescind it. The election is with him ; he may affirm or disaffirm the contract, but he cannot do both ; and if he concludes to abide by it, as upon the whole advantageous, he shall not afterwards be-permitted to question its validity. Masson v. Bovet, 1 Denio, 69, and notes; Wheaton v. Baker, 14 Barb. 597; Bartholomew v. Finnemore, 17 id. 429; Roth v. Palmer, 27 id. 654; Rich v. Bank, 3 Hun, 484; 5 Thomp. & C. 592; Getty v. Devlin, 54 N. Y. 415: White v. Dodds, 42 Barb. 565; Devendorf v. Beardsley, 23 id. 661; Sweetman v. Prince, 26 N. Y. 227; Pryor v. Foster, 130 id. 171; 41 St. Rep. 320; Mayo v. Knowlton, 134 N. Y. at page 254; 47 St. Rep. 748. If a party who has the right to rescind a contract continues to treat the property as his own after discovery of the fraud,, he will be considered to have elected to ratify it. and no action to disaffirm it will lie either at law or in equity. Shiffer v. Dietz, 83 N. Y. 300, 308; Grymes v. Sanders, 93 U. S. 55, 62. Pol. Cont. (Wald’s Notes, p. 507), says :

“ It is for the party defrauded to elect whether he will be bound. But, if he does affirm the contract, he must affirm it in all its, terms. * * * When the contract is once affirmed, the election is completely determined ; and for this purpose it is not necessary that the affirmation should be express. Any acts or conduct which unequivocally treat the contract as subsisting, after the facts giving the right to rescind have come to the knowledge of the-party, will have the same effect. * * * A,shareholder cannot repudiate his shares on the ground of misrepresentations in the prospectus, if he has paid a call without protest, or received a dividend after he has had in his hands a report showing to a reader of ordinary intelligence that the statements of the prospectus were-not true, or if, after discovering the true state of things, he has taken an active part in the affairs of the company, or has affirmed his ownership of the shares by taking steps to sell them ; and in general a party who voluntarily acts upon a contract which is voidable at his option, having knowledge of all the facts, cannot afterwards repudiate it if it turns out to his disadvantage. And. when the right of repudiation has once been waived by acting upon the contract as subsisting with knowledge of facts establishing a case of fraud, the subsequent discovery of further facts constituting a new incident in the fraud cannot revive it.”

The defrauded party to a contract has but one election to rescind. If he once makes his election it is determined forever. Hence if it is shown that he have at any time after knowledge of the fraud, either by express words or unequivocal acts, affirmed the contract, his election is irrevocable. Clough v. Railway Co., Law Rep. 7 Exch. 26. The plaintiff was in possession of the property from April 1 to July 16, 1895, and the attempted recission on that day came too late. He had, with knowledge of the facts during the latter part of April and all of May and June, by his .declarations and conduct asserted there was no fraud. It cannot be assumed that his purchase from Cauldwell at $130,000 was fraudulent, and his sale to the silver men of the same property at $187,000 honest. The plaintiff cannot claim that he attempted any fraud on the silver men ; they might claim that, but not he. And if the sale to them at $187,000 was honest, it must follow, as “ the night the day,” that the sale from Cauldwell to him was untainted. If the sale to the plaintiff was fraudulent, the property, in the contemplation of law, was not his, but was in the vendor. He clearly did not elect to so consider it, for he guaranteed to Ball on June 3d that he was the owner of the entire property, and he certainly dealt with it as his own on May 14, 1895, when he accepted the $187,000 offer from the silver men. Whether the indebtedness from the corporation to Cauldwell amounted to the sum at-which Cauldwell put it is immaterial. The plaintiff agreed to pay $130,000, and the mode of payment is of no consequence. The corporation does not complain ; it is not a party to the action. The plaintiff cannot complain for it, because he has taken the stand that the sale to him was fraudulent and void, and a void thing is no thing. He does not bring his action as a stockholder, but on the theory that he took nothing by his purchase, and that what he paid should be returned to him. He is not a judgment creditor of the corporation, and does not proceed as such, but on his private account and for his own individual benefit. One who seeks to have an instrument set aside as invalid cannot in the same action ask relief on the theory of any right which he can claim only if the instrument is valid. Such causes of action are inconsistent. Wilkinson v. Dobbie, 12 Blatchf. 298, Fed. Cas. No. 17,670.

The claim for equitable relief is not based on the insolvency of the defendants, who are conceded to be of ample pecuniary responsibility.for any damage to the plaintiff’s legal rights. It cannot be claimed therefore that irreparable damage will be done if inj unctive relief is withheld. Indeed, it is a case where the granting of such relief might cause more damage to the defendants than the withholding of it would to the plaintiff; and under such circumstances the rule is to deny the relief prayed for. A newspaper must be run regularly or it is ruined. Neither advertisers, subscribers, nor the general public will patronize a journalistic failure. Its name no longer attracts but repulses. The failure to furnish the paper according to promise does the property much more harm than the failure of a merchant to meet his obligations. To insure success it must be in the hands of those possessing the necessary capital and enterprise to push it in the line of journalistic prosperity. In the control of one running it at a loss he is unable to bear, awaiting the advent of prospective purchasers, whether they be the representatives of silver or gold, it is doomed to disaster. Nothing but luck, which seldom comes at the proper time, can save it. The remarks are called forth by the rule, before referred to, that where the continuance of the injunction may result in more harm than good it will not be continued, and by the further rule that where parties are of ample pecuniary responsibility the remedy should be sought in an action at law to recover damages for the wrong rather than by injunctive relief in equity.

For these reasons, the motion to continue the injunction will be denied, and the temporary injunction dissolved, with $10 costs.


author: Clement, C. J.

text:
    Nassau Electric Railroad Company, Pl'ff, v. Alfred T. White, as Commissioner, etc., et al. Def’ts.

      (Brooklyn City Court, Special Term,

      Filed June, 1895.)

    Mandamus—Street railroad.

      Mandamus to compel a street commissioner to issue a permit for the construction of a street railroad, where he refuses to do so, is the proper mode of raising the question as to whether his refusal is right or wrong, and an injunction will not lie.
    Motion for an injunction.

      James 0. Ohureh and John J. Allen, for pi’if; Albert G. Me Donald, for def’ts.
   Clement, C. J.

The plaintiff alleges in its complaint that it is a street-railway company, duly incorporated and authorized to lay and operate its railroad on Ocean avenue, in the Thirty-first ward, formerly Gravesend. The complaint also sets forth that the company obtained the consent of the highway commissioners of Gravesend before the town was taken into the city, and that it obtained the constitutional consent of the property owners. The latter two allegations are denied in the answer in a manner authorized by the Code (§ 500). The company applied to the defendant comissioner of city works for a permit to enable it to proceed with the construction of its tracks on Ocean avenue. The commissioner refused to grant the permit until he was satisfied that a majority of the property owners had given their consent, whereupon the president of the plaintiff, by letter, declined to give the commissionér any information in relation to consents. The complaint (paragraph 6) sets forth that the defendant is commissioner of the department of city works, and as such commissioner has such charge of the streets as is conferred by the charter, and that it was his duty to permit the construction by plaintiff of its railroad on Ocean avenue, and to issue “ such formal or other permit, order or instructions as may be required in the premises to enable the plaintiff to proceed with such construction without interference on the part of the officers or agents of said departments or of said city.” The principal question argued on the motion was whether or not, if the consent of the local authorities had been given, the commissioner of city works could contest the right of plaintiff to lay its tracks on a city street. I do not think that it is necessary to decide the question on this motion. The plaintiff now seeks an injunction to restrain the commissioners from interfering with the construction of the railroad.

I am clear that the plaintiff has mistaken its remedy. When the commissioner refused to issue the permit, the plaintiff should have appled for a mandamus to compel him so to do, and on the hearing of that proceeding, the question would arise whether the commissioner is right or wrong in his contention. It has always been the custom in this city for parties to apply for a permit to the officer who represents the city in the care of streets, whenever such party desired to open the streets. The reason of the custom is that the city, by virtue of the acceptance of its charter, is responsible to travelers for the condition of its streets. This liability is established by a long line of authorities, from Weet v. Village of Brockport, 16 N. Y. 161, note, and Conrad v. Village of Ithaca, id. 158, down to almost the last volume of the reports of the court of appeals. However, it is not necessary to put my decision on any custom, for the plaintiff’s counsel substantially concedes, by the allegations in the complaint before quoted, that it cannot proceed without a permit, but the contention is that the commissioner unjustly7 refused to grant one. The ordinance of November 24, 1890, also expressly provides that a permit is necessary in order that a railroad company may disturb the streets. Several cases are reported where corporations claiming to be duly incorporated and authorized to use the streets of New York city- have applied for a permit to the commissioners of public works. In the case of People v. Thompson, 98 N. Y. 6, the lower courts held that the New York & Brooklyn Bridge Company was entitled to the permit, which decision was reversed by the court of appeals. In the case of People, ex rel. Third A. R. R. Co. v. Newton, 112 N. Y. 396; 21 St. Rep. 8, the railroad company claimed to have authority of law to lay a cable road on Third avenue, but the court of appeals held that the commissioner was right in his refusal to issue a permit. The same company, after legislation, obtained its permit. 121 N. Y. 536 ; 31 St. Rep. 693. Even though a street railway company has the right to construct its tracks, its work is subject to the supervision of the officer of the city who has the care of its streets. Otherwise, the company could take possession of the street, unnecessarily incumber it, and lay its tracks as its officials pleased, irrespective of the rights of the public. It may be claimed that an injunction be issued the commissioner from interfering with the construction, except to supervise and. protect, the public rights. This would put the commissioner on the verge of contempt of court at all times. If he honestly overstepped his line of duty, he would be subject to a motion, and the question of contempt would be a matter of fact. The case of Dry Dock, E. B. & B. R. Co. v. Mayor, etc., of New York, 47 Hun, 221; 13 St. Rep. 391, is instructive on this question. If the tracks were actually or partially laid on Ocean avenue, and the defendants threatened to remove them, the plaintiff would be entitled to an injunction until the questions could be tried; and the authorities cited by plaintiff so hold, and nothing more. The decision of an official that railroad tracks in existence are a nuisance is entirely different from the claim of an official that he may supervise and protect the rights of the people.

Motion for an injunction denied.


author: Merwin, J.

text:
    Thomas Quinn, App'lt, v. Frank B. Jenks et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

      1. Former, adjudication—Subject-matter.
    In an action to set aside a sale in foreclosure, to obtain an order for a resale, to set aside a judgment recovered in a former action brought by the defendant against the plaintiff upon a warranty of title and to recover damages for fraud, a judgment in the action for breach of warranty, is, as to all the issues raised therein, res adjudicata between the same parties in the subsequent action to sot aside the foreclosure sale.
    3. Courts—Co-ordinate jurisdiction.
    A court has no authority to vacate a judgment of a court of co-ordinate jurisdiction for fraud, where there is no proof that the defendant in the former action was prevented by any act or contrivance of the plaintiff therein, nor by any accident not involving his own negligence or that of his agents, from prosecuting his defense in that action.
    8. Defense—Ignorance.
    Ignorance of facts constituting a defense does not excuse a party from omitting to make the defense, unless it can be shown that he could not have • acquired the information by diligence.
    4. Mortgagor—Purchaser—Liability.
    The rule that, where a purchaser of a portion of the mortgaged premises agrees to pay the whole mortgage, he is liable to the purchaser of the remainder for the damage resulting from a failure to pay the mortgage and the consequent sale of the whole property,_ and_ that the grantees of the purchasers who have assumed the obligation will also be liable, does not apply, where the party who seeks to enforce the liability has not paid the debt.
    Appeal from a judgment, dismissing the complaint.

      A. P. Smith, for app’lt; W. G. Grombie, for resp’ts.
   Merwin, J.

On the 20th Juné, 1837, Jonathan and Eansom Scott, being then the owners of 150 acres of land in the town of Scott, in the county of Cortland, gave a mortgage thereon to the loan commissioners of Cortland county for the sum of $496. The foreclosure of this mortgage and the sale thereof on the 7tli February, 1888, of ñfty-six acres, a portion of the mortgaged premises, then owned by the defendant Frank B.- Jenks, have given occasion to this litigation. The purchaser at the sale was the defendant Frank L. Cuddeback, who thereupon took possession of the property, dispossessing Jenks. The latter thereafter, and on or about April 9, 1888, commenced an action in the supreme court against Thomas Quinn, the plaintiff in the present action, upon his warranty of title to William S. Jenks, the grantor of Frank B. Jenks. The action was tried in October, 1890, at the Cortland circuit, before the court without a jury, and a decision was rendered in favor of the plaintiff therein for the sum of $1,-906.19, the value of the premises at the time of the eviction, with interest and costs. Judgment in accordance with the decision was entered on January 13, 1891. The defendant therein appealed to the general term, where the judgment was affirmed in November, 1891 (Jenks v. Quinn, 61 Hun, 427; 41 St. Rep. 22), and judgment of affirmance was entered on December 4, 1891. An appeal was taken to the court of appeals on the 21st January, 1892, the return being filed March 7, 1892. The court of appeals affirmed the judgment (137 N. Y. 226; 50 St. Rep. 795); and judgment of affirmance was entered on the 13th March, 1893. On or about the 16th March, 1892, the present action was commenced, a notice of pendency being filed on the 21st March, 1893. Its object, as indicated by an amended complaint, verified July 19, 1893, is to set aside the foreclosure sale, and order a resale; set aside the judgments in the case of Jenks v. Quinn, and in the meantime restrain their collection; and recover damages of certain of the defendants. The gravamen of the complaint is fraud and conspiracy in bringing about the sale on the foreclosure of the fifty-six acres, when in fact, as the plaintiff claims, another portion should have been first sold. On the 12th March, 1867, Bansom ' Scott, assuming to be the entire owner of the 150 acres covered by the loan mortgage, conveyed the same to Charles Pardee, subject to the mortgage which Pardee assumed as part of the purchase price. On April 1, 1868, Pardee conveyed about 135-| acres to John Curtin and Daniel Curtin, subject to the mortgage which the Curtins covenanted to pay. At the same date, Pardee by warranty deed conveyed to Qeorge W. Hunt about sixteen acres, being the balance of the 150 acres, except about two acres. Nothing was said in this deed about the loan mortgage. The Curtins gave back to Pardee, on the property conveyed to them, a mortgage dated April 1, 1868, and recorded May 3, 1872, for $2,986.41, part of the purchase money. On October 2, 1871, Daniel Curtin gave to John Curtin a quitclaim deed of fifty-six and a half acres, being that part of the farm on the west side of the highway, and John Curtin deeded to Daniel seventy-nine acres, being that part of the farm on the east side of the highway. These deeds were both recorded on December 11, 1871. In the deed from Daniel to John there was the following clause: “And the party of the first part herein covenants and agrees to save the party of the second part harmless from and pay off and liquidate a certain loan mortgage of four hundred and ninety-six dollars upon the premises herein described.” The party of the first part also covenanted to pay the sum of $1,535.35 on the mortgage to Pardee. In the deed from John to Daniel the party of the first part covenanted to pay on the Pardee mortgage the sum of $1,452.95, and nothing appears to be said about the loan mortgage. . On December 8, 1871, by .warranty deed recorded December 11, 1871, John Curtin conveyed to Thomas Quinn, the present plaintiff, the fifty-six acres, and in this deed the party of the first part covenanted to save the party of the second part harmless from the loan mortgage, and the party of the second part agreed to pay on the Pardee mortgage the sum of $1,384.38. On March 8, 1873, Quinn, by warranty deed recorded February, 1, 1874, conveyed the fifty-six acres to the defendant William S. Jenks, for the consideration, as therein expressed, of $2,200, and the party of the second part agreed to assume and pay on the Pardee mortgage the sum of $1,384.32. On the 9th February, 1874, William S. Jenks gave to Pardee a mortgage on the fifty-six acres for the sum of $1,270.43, and at the same date Daniel Curtin gave to Pardee a mortgage on the seventy-nine acres for the sum of $1,321.57. These two mortgages were given to take up the mortgage given to Pardee in 1868, and covering both pieces, and that was discharged of record on February 25, 1874. The mortgage given by Daniel Curtin was assigned to the defendant William D. Hunt, and foreclosed, and upon the sale on-August 9, 1878, Hunt became the purchaser and went into possession, and so continued until .lie conveyed to the defendant Childs after the sale on the loan mortgage. On February 24, 1881, William S. Jenks, by warranty deed, conveyed the fifty-six acres to the defendant Frank B. Jenks, subject to the mortgage given in 1874 to Pardee, and then held by the defendant Isaiah Ouddeback, which Frank B. Jenks assumed and agreed to pay. This mortgage on the 7th February, 1888, was held by the defendant Frank L. Ouddeback. Upon the sale of 7th February, 1888, the fifty-six acres was first put up, and was bid off by Frank L. Ouddeback for just the amount of the mortgage, interest, and costs, thus releasing entirely the seventy-nine acres. After the sale, and on the same day, William D. Hunt, by warranty deed dated and recorded that day, conveyed to the defendant E. W. Childs the seventy-nine acres, with other property, for the consideration of $3,000, and April 1, 1890, Childs by warranty deed recorded May 27, 1890, conveyed the seventy-nine acre's to the defendants Sweeney, who now own the same. Frank L.' Cuddeback, the purchaser on the sale, conveyed the fifty-six acres to defendant Isaiah Ouddeback, by deed dated June 6, 1890, and recorded June 10, 1890, and he, by warranty deed dated 7th March, 1892, and recorded June 3,1892, conveyed the same to the defendant Anderson, who now owns the same.

In the action against Quinn on the warranty, the defendant therein alleged among other things that by the covenant in the deed from Daniel and John Curtin the seventy-nine acres became primarily charged with the whole of the loan mortgage; that the charge continued down to the time of the sale, and was known to Frank B. Jenks, as well as to Hunt, the owner of the seventy-nine acres; that Jenks was present, and took part in the sale; that the holders of the loan mortgage sold the fifty-six acres first at the request of Hunt and with the consent of Jenks, and without any objection from him, or demand that the seventy-nine acres should be first sold; and that Jenks is estopped from claiming on the warranty. It appeared on the trial that Quinn was duly notified of" the sale, and promised Jenks to be present and protect him as to the fifty-six acres; that he failed to be present on account of sickness ; that the loan commissioner sold the fifty-six acres first, under the mistaken idea that it was first liable. It was held that the failure to sell the piece primarily liable did not make the sale void, and that the purchaser acquired a valid title, and that the failure of Jenks to object at the time of the sale did not estop him from claiming on the covenant, although if he had objected the result would have been different. In the court of appeals, upon the affirmance of the judgment, importance was given to the circumstance that it was not found that Jenks hail any actual knowlddge of the covenant in the deed from Daniel Curtin, or its legal effect; and it was held that Jenks was not charged witli constructive notice from the record of Daniel's deed of the covenant therein. The present action is against the owners of both pieces at the time of the sale, and those to whom conveyances of either part have been made since. The loan commissioners are also parties. It was held by the special term (1) that upon the evidence and proofs in this case the plaintiff is not entitled to any equitable relief in this action ; (2) that at the time of the trial of the action of Frank B. Jenks against the plaintiff, Thomas Quinn, and the procurement of the judgment sought to be set aside by the plaintiff by this action, all the facts set forth by the plaintiff in his complaint herein would have been available and admissible as a defense in said action ; that the plaintiff knew all of said facts at the time, or could have acquired the information by diligent and careful labor in the preparation of said case for trial, but negligently omitted to do so, and persisted upon the defense interposed by him in said action, and prosecuted appeals from the decision rendered therein to the court of appeals, and took no action to enforce his claimed equities until after the title to both parcels of land covered by the loan mortgage had passed by sale and conveyance to other parties, who became purchasers thereof in good faith and for value, without notice of the equities which plaintiff asserts; (3) that the matters presented by the plaintiff’s complaint in this action were passed upon, presented and considered in said action; (4) that there was no fraud practiced on the trial of said action by the plaintiff, Frank B. Jenks, or any other person on his behalf or for him, in the procurement of the said judgments by which the said Thomas Quinn, defendant, was prevented from interposing or availing himself of the facts set forth in the complaint herein as a defense in said action ; (5) that there are no facts proven in this action upon which the foreclosure sale under the loan mortgage should be set aside; (6) there are no facts proven in this action upon which the judgment of Frank B. Jenks v. Thomas Quinn, or the foreclosure of the loan mortgage, ought to be set aside; (7) that this action, being an actian in equity, and Jenks being free from any fraud or intentional injury to the plaintiff, his action cannot lie against any of the defendants herein; (8) that the judgments recovered by Frank B. Jenks against said plaintiff are valid and legal judgments, and the said Frank B. Jenks, plaintiff, is entitled to enforce and collect the same.

There is evidence tending to show that before the sale the defendant Hunt claimed that the fifty-six acres was chargeable with its proportion of the loan mortgage, and that Quinn, representing that piece, had agreed with Hunt to be present at the sale and contribute its share towards the payment of the mortgage. At the time of the sale Quinn was not present. The defendant Hunt, together with Charles I. Hunt, who acted for the owners of the sixteen acres deeded to George W. Hunt in 1868, and defendant Frank L. Cuddeback, who held a subsequent mortgage on the fifty-six acres, raised the money which was paid to the loan commissioners on the sale, each contributing according to the valuation of their respective parcels. There was evidence tending to show that the sale of the fift)'-six acres fiist was not by the request of the defendant Hunt, but at the instance of one of the commissioners, he being misled by an error in a search. It is in effect found that there was no fraud or conspiracy on the part of any of the defendants, and there is evidence sufficient to sustain this view of the case. So far, therefore, as the plaintiff seeks to overturn the judgment in case of Jenks v. Quinn by reason of such alleged fraud or conspiracy, the present action has no basis.

But the plaintiff claims that an essential circumstance in the determination of the case of Jenks v. Quinn was the absence of a finding that Frank B. Jenks had actual notice of the covenant in the deed from Daniel to John Curtin, and that in the present case he has shown the fact of such actual notice.' The evidence, however, on that subject is contradictory, for Jenks testifies that he never had any actual notice of the covenant of Daniel Curtin. Be that as it may, the issue as to such notice was fully raised in the former casa, and Quinn had full opportunity to try that issue. No good reason is presented for trying it over again in this case, within the well-settled rule on that subject. In Mayor, etc. v. Brady, 115 N. Y. 599; 26 St. Rep. 340, it was held, as summarized in the headnote, that: “ No court has authority to vacate and set aside a judgment of a court of co-ordinate jurisdiction upon the ground that the contract upon which it was based was fraudulently obtained, or that there had not been an honest and fair performance thereof, in the absence of proof that the defendant in the action wherein the judgment was obtained was prevented by some act or contrivance of the plaintiff, or by some accident unmixed with negligence of himself dr his agents, from prosecuting his defense therein. The fraud which will authorize one court in a collateral proceeding to revise the judgment of another court is affraud practiced in the procurement or concoction of the judgment, by which the defendant was prevented from availing himself of some defense. Ignorance of,facts constituting a defense does not excuse the omission of a party to make it, or entitle him to the aid of equity, unless it can be shown he could not have acquired the information by diligent and careful labor in preparing the cause for trial.” In view of the law as thus laid down, we are of the opinion that the trial court did not err in holding that no sufficient reason existed for setting aside the judgments in Jenks v. Quinn as invalid.

Assuming those judgments to be valid, is it shown that the •court erred in refusing to set aside the foreclosure sale? The plaintiff, by reason of sickness, was unable to attend the sale, but he took no steps to have any one_ else appear for him. He knew immediately thereafter that the fifty six acres had been sold, and that his liability on the warranty would be enforced, and still he took no steps to set aside the sale until four years afterwards, and until, as the trial court finds, the title of both parcels had passed to purchasers in good faith for value, without notice of plaintiff’s equities. The plaintiff says, that he did not know until just before the commencement of this suit, in March, 1892, that the funds to pay the bid on the sale were raised by contribution from the owners of the other pieces in association with the purchaser Cuddeback. Still, for aught that appears, he might readily, at any time after the sale, by reasonable inquiry have found out all about it. He knew from the start the main fact, which was that the fifty-six acres had been sold,—without right, as he claimed. Instead of attacking the sale, he elected to defend the suit on his warranty.

But the plaintiff claims that the purchasers under William D. Hunt are chargeable with knowledge of the existence of the loan mortgage and of the covenant of Daniel Curtin. To this it is replied that Hunt held under a sale upon the mortgage given to Pardee, which was in renewal or substitution for a purchase-money mortgage that was prior to Daniel Curtin’s covenant, and that equitably, therefore, Hunt’s title was not subject to that covenant. It is also suggested that the deed from Daniel to John Curtin, in which was the covenant referred to, was not a link in the title of the seventy-nine acres, and so the doctrine of constructive notice ■does not apply. Acer v. Westcott, 46 N. Y. 384. The covenant was not referred to in the deed from John to Daniel. There was proof that the purchaser from Hunt, the defendant Childs, had no actual notice of the covenant of Daniel. If there was constructive notice, still he had a right to believe that the sale was legal, as it was finally decided to be, and that it operated to discharge the mortgage. He knew that his grantor advanced his proportion, and he was informed that the other owners had agreed to pay the balance. The trial court was, we think, justified in its conclusion that Childs and his subsequent grantees, the defendants Sweeney, were purchasers in good faith for value, and without notice of plaintiff’s equities. There is also evidence tending to show that the present owner of the fifty-six acres, the defendant Anderson, purchased in good faith, without any knowledge or information that the plaintiff claimed that the sale was as to the purchaser invalid.

As the case stands, we cannot properly say that the court erred in holding that the plaintiff was not entitled to equitable relief. It is not a case where there lias been no change in the situation, as in the case cited of Vilas v. Plattsburgh & M. Railroad Co., 123 N. Y. 440; 34 St. Rep. 67.

It is argued on the part of the appellant that the amount of the recovery in the warranty suit was equitably large, and that relief should be given here. On the contrary, we must assume that the amount there allowed was correct. All the facts in regard to that subject were before the court, or the defendant there had full opportunity to present them. In fact, practically all the material facts did appear, and the conclusion there arrived at cannot be reviewed here.

But the plaintiff claims that in this action lie should recover against some of the defendants damages for the improper sale of the fifty-six acres, either on the ground of fraud and conspiracy or in accordance with a suggestion to be found in the opinion delivered in Jenks v. Quinn, in the court of appeals. As no fraud or conspiracy is found, relief cannot be given on that basis. In the opinion in the court of appeals it is said: “The covenant of Daniel Curtin to pay the mortgage charged him and his land with its payment. If the same obligation devolved upon his grantee, and the benefit of it passed to the defendant, then their grantees may be liable to him upon the facts adjudged,” — citing the case of Wilcox v. Campbell, 106 N. Y. 325; 8 St. Rep. 885. In that case a purchaser of a portion of mortgaged premises, who assumed and agreed to pay as a part of the purchase price the whole mortgage, was held liable to respond in damages to the grantee of the balance of the premises, for his failure to pay the mortgage and the consequent sale of the whole property. The doctrine of principal and surety was applied.

Daniel Curtin is not a party to this action. In the transfer to William D. Hunt, no personal liability was imposed upon him to pay the mortgage in question, nor was there upon his grantees. So that the rule laid down in the WilcoxCase, and the suggestion in Jenks v. Quinn would not seem to apply. Besides, the plaintiff has not yet paid anything on his liability. Halsey v. Reed, 9 Paige, 446. The judgment against him is not proof that the debt is paid or will be. 2 Sedg. Dam. (8th ed.) § 802.

We have thus considered the main questions in the case, and all that seem to call for discussion, and we find no ground upon which we can properly base a reversal. It follows that the judgment must be affirmed.

Judgment affirmed, with costs.


author: White, J.

text:
    Theodore Arend, Resp’t, v. Octavius O. Cottle, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    1. Costs—Ownership.
    Unless there is an agreement to the contrary, a judgment for costs is presumed to belong to the attorney of the successful party.

      2. Contbact—Rescission.
    A party cannot rescind a contract withoút returning what he has received under it.
    Appeal from a judgment in favor of plaintiff.

      Edmund P. Cottle, for app’lt; Roland Crangle, for resp’t.
   White, J.

On November 22. 1884, one William Hyde recovered a judgment in this court against one Henry Arend, who is a brother of the plaintiff in this action. The judgment recovered by Hyde was for the dismissal of the complaint in that action, in which he was the defendant and said Henry Arend was the plaintiff, and for $108.88 costs. The defendant in this action, as the attorney of record of Hyde, had issued an execution on that judgment, which was returned nulla bona prior to November 20,1894. On November 20, 1894, the plaintiff in this action paid to the defendant,' Cottle, something less than the amount of that judgment, in satisfaction of it, on the faith of Cottle’s agreement to procure the judgment to be discharged of record. The arrangement was made by the plaintiff in the interest and for the benefit of his brother, Henry Arend, against whom Hyde had recovered and held the judgment for costs. Two days after the defendant had requested his client, Hyde, to execute a satisfaction of the judgr meat, Hyde was seeking to induce Henry Arend to pay the judgment to him. On November 26, 1894, the plaintiff undertook to rescind his contract with the defendant, and demanded the return of the money that he had paid to the defendant on the 20th. This action was begun December 8, 1894.

The presumption is that the judgment for costs recovered against Henry Arend by Hyde is, in equity,-the property of the defendant, unless there was an agreement between the parties to the contrary. In re Bailey, 31 Hun, 608.

The plaintiff contends that the contract between him and the defendant was entirel y independent of Henry Arend, and that there is no evidence that Henry had any interest in it. In that I think he is in error. To my mind, it is plain from the evidence, that the money was paid by Theodore solely for the benefit of Henry, and on the assumption that it was either a gift to Henry, or that he would refund it to Theodore. But the disposition to be made of this appeal must be the same in either case. The contract was executory. The money was paid, unconditionally, in satisfaction of the judgment, upon the agreement of Cottle to procure it to be discharged within a reasonable time. The plaintiff well says that whether or not Cottle failed to procure the discharge within a reasonable time is a question of law, for the court. Let us assume, then, that the plaintiff can rescind, and recover back the money paid to the defendant, in case he fails to perform his contract, namely, to procure the judgment to be satisfied of record within- a reasonable time, although it may be that for such a breach the defendant would be liablé only for damages, which- would be measured by the expense of a motion for that purpose. In this case the plaintiff knew when he paid the money that Cottle could not himself discharge the judgment, by reason of the time which had passed since it was recovered. Immediately upon the receipt ■of the money, Cottle requested his client to execute the proper paper, which the client refused to do. The only thing Cottle could then have done was to proceed by a motion to compel a discharge of the judgment, and there is no evidence that he neglected to proveed in that way for an unreasonable length of time. Furthermore, Theodore Arend could rescind, if at all, only by returning to and releasing Cottle from his agreement to procure a discharge ■of the judgment. Instead of doing that, he kept and used the agreement as a practical discharge of the judgment, and theieby enabled Henry to openly take title to real estate by recording a deed of lands which he had owned for several months. There was no legal rescission. Andrews v. White, 45 St. Rep. 669.

A more troublesome proposition, from my point of view, is the •claim of the plaintiff that by special agreement between Hyde and Cottle the lat-ter had accepted $15 in full payment for his services in the suit against Henry Arend, and that, therefore, Hyde, and not Cottle, was the owner of the judgment. There was evidence .given on both sides of this question in the court below, and its judgment may have been given upon the theory that the plaintiff’s claim upon that point is well founded, and that Cottle took the money from the plaintiff wrongfully. Even if that be the case, however, and though actual fraud were charged, as the basis of action, instead of simple contract, it would be necessary still for the plaintiff to return to Cottle his contract, or release him from it, in order to put himself in a position to rescind and recover back the money paid. I think there should be a new trial on the merits. Titus, 0. J., concurs; Hatch, J., concurs in result.


author: Hatch, J.

text:
    John Bowe, App’lt, v. Valentine Brunnbauer, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    1. Deposition—Examination oe party—Physical.
    An order for the physical examination of a party, which directs the attorney to produce the party to be examined, is 'erroneous.
    3. Same.
    Such order must direct the party to be produced before a judge or referee, and not before a special term of the court.
    3. Sam®.
    Such order is erroneous where it directs an examination in less than five days after the service of the order, unless special circumstances are shown, as required by section 873 of the Code.
    Appeal from an order, denying plaintiff’s attorney to produce the person of plaintiff before a special term of the court for the purpose of then and there having a physical examination of the person of plaintiff by physicians, and for an oral examination.

      Nelson T. Barrett, for app’lt; Harry L. Taylor, for resp’t.■
   Hatch, J.

By the proceeding instituted it is sought to procure an examination of plaintiff, and his person, in order to enable •defendant to properly frame his answer in the action. Ho point is made but that the moving papers are sufficient to accomplish the end sought, but it is earnestly insisted that the court is without power to make the order which it did make. In this regard we think the point is well taken, and that the position must be .sustained. The order was made on the 20th day of February, 1895, and directed that plaintiffs attorney produce plaintiff before the court, at special term, on the following day, at ten o’clock in the forenoon, and that plaintiff then and there, before the court, submit to a physicial examination, conducted by certain physicians named in the order, for the purpose of ascertaining the nature and extent of his personal injuries alleged, and' also provided for the plaintiff’s examination, as a witness, respecting the nature and extent of his injuries. The order issought to be justified by section 873 of the Code of Civil Procedure. The section provides that the court or judge may grant the order, upon a proper application, and “ the order must require the party or persons to be examined to appear before the j udge, or before a referee named in the order, for the purpose of taking the examination, at a time and place therein specified. The order must also direct the time of service of a copy thereof; which must be within the state, not more than twenty, nor less than five days before the time fixed for the examination, unless special circumstances, making a different time of service necessary, are shown in the affidavit, and that fact is recited in the order.” The right to the order asked is a statutory right, and no other authority exists, outside of the statute, for granting it. Consequently, authority must be there found for the order, or we are without power to support it. Heishon v. Insurance Co., 77 N. Y. 275. Tested by this rule, the order is without basis, in four particulars.

1. It commands the attorney to produce the party for examination. There is no authority in the statute which authorizes the court to compel the attorney to produce the party. The statute is that the party must be required to appear. And we know of no power existing in the court, in a case like this, aside from the statute, which empowers the court to lay such a command upon the attorney. There must be some process to compel the attendance of a party against his will. But this orderlays the command upon the attorney, and furnishes him with no process to compel its execution. The attorney is not the party, and he has no authority to compel the party to obey the order. In this respect, therefore, the order must fail.

2. The attorney is directed to produce the party before the court at special term. There is no warrant for this. The statute requires that the court or judge may make the order, but the order is to be that he appear before the judge or a referee. We look in vain for authority to compel or direct his appearance before the court. The language of the case above cited is, “ no power is anywhere conferred upon the court to order the examination, or to take it.” By amendment the power is now vested in the court to order the examination, but no power is anywhere expressed that it may take it. On the contrary, the express language is otherwise.

3. The order requires that the party be produced on the day following the order. The statute requires that not more than twenty nor less than five days shall intervene between the granting of the order and the examination, unless special circumstances be shown in the affidavit, and the fact recited in the order. This requirement is essential, and must he followed. Balcom v. Adams, 18 St. Rep. 13. Nothing is stated in the moving papers showing necessity for a shorter time than the statute provides. A statement is made showing reasons why an older to show cause is necessary on less than eight days’ notice, but it is not claimed that this relates to the examination. No recital whatever is made in the order relating to the matter, nor is it otherwise indicated that a shorter time than-the statute requires is needed.

4. The statute also requires that the order must direct the time of service of a copy thereof. There is no attempt whatever at compliance with this provision. The result is that the order should be reversed and set aside, with $10 costs and disbursements.


text:
    Robert L. Howery, Resp’t, v. Lake Shore and Michigan Southern Railway Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    Master and servant—Appliance.
    A railroad employe who, with lull knowledge of a defective and unsafe appliance, a complete comprehension of his surroundings and with as much knowledge upon the whole subject as tbe company, attempts to remedy the defect and receives injury through the negligent act of a co-employe, assumes whatever of risk attends his act, and cannot hold the company responsible therefor.
    Appeal from a j'udgment in favor of plaintiff.

      James F. Gluck, for app’lt; George IF! Gothran, for resp’t.
   Hatch, J.

It may be assumed that defendant had caused to be given the assurance, when the car was pulled out from its cripple track, that it was in good condition and proper repair, upon which fact plaintiff had the right to rely. But, with this conceded, it does not follow that plaintiff showed himself entitled to recover. When the notice was given that-the wrong -pin had been pulled, it was undoubtedly competent for the jury to find that it then became plaintiff’s duty to remove the pin and link. The notice warned plaintiff that something was wrong, or the right pin would have been pulled. When plaintiff reached the car he proceeded to examine the pin and coupler, discovered the character of tbe coupler, and the difficulty with the pin. Whatever of assurance had been given that the car was in a suitable and proper condition was now removed. If we call it a defective and unsafe appliance, the, condition is not changed. Assuming it to be such, its character, nature, and extent was as well known then to the plaintiff as it possibly could be to defendant. Indeed, all that defendant now knows rests, in the main, upon plaintiff’s statement, and whatever knowledge it was chargeable with was clearly within the plaintiff’s conception at the time. No accident had yet happened, no injury was yet sustained. While, in the beginning, plaintiff had an assurance that the car was in proper condition, yet such assurance in no wise misled him to his damage. Before he did any act causing injury he had possesed himself, of every fact which defendant knew, or ought to have known. Thus, with full knowledge of the defect, a complete comprehension of his surroundings, with as much knowledge upon the whole subject as defendant, he attempted to remedy the defect, and received injury through the negligent act of a co-employe. Whatever danger there was in and about attempting to correct the defect was obvious in character, and known to plaintiff so far as it related to any defect in the coupling. He therefore assumed whatever risk attended his act, and cannot hold defendant responsible therefor. Crown v. Orr, 140 N. Y. 450; 55 St. Rep. 834; Davidson v. Cornell, 132 N. Y. 234; 43 St. Rep. 887; Hart v. Naumburg, 123 N. Y. 641: 33 St. Rep. 607. In addition to this, plaintiff was, by the rule of defendant, required to inform his superior officer of any defect when discovered, and to take such measures as would insure his safety in and about any matter he attempted to do with it. It therefore rested with him, when he discovered the defect, to take such steps as would insure his safety, if he determined to remedy it. This he did not do, but proceeded to act with knowledge of the defect, the dangers attending its remedy, and with no notice to his superior or fellow servants. It is therefore‘apparent that what he did he did with his eyes open, with full knowledge, and in consequence assumed the attendant risks. No basis existing to sustain a recovery, the judgment should be reversed, and anew trial ordered; costs to abide the event.

White, J., concurs; Titus, 0. J., dissents.


text:
    Harvey J. Hurd et al, Resp’ts, v. Johnson Park Investment Company et al., App’lts.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

      Í. Assignment—Equitable.
    An order by a contractor upon the owner of a building, requesting the payment of a certain sum to a third person “ when the same is due by the terms of the contract,” constitutes an equitable assignment.
    2. Same.
    A written request by a contractor to the owner to pay money to a person named, “and charge the same to me,” is not an assignment but a mere order.
    8. Contract—Building—Construction.
    A provision in a building contract that the contractor must, if required, furnish a certificate that no liens have been filed, before he shall be entitled to payment under the contract, is intended solely for the benefit and protection of the owner, and not for parsons furnishing materials to the contractor.
    Appeal from a judgment in favor of plaintiffs.

      Hmory P. Close, for app’lts, E. & B. Holmes; Clinton B. Gibes, for app’lts, George H. Peters & Son; Howard, & Ciarle, for resp’ts.
   Hatch, J.

The defendant company contracted with one Rollins to erect for it an apartment house for and at the agreed price of $16.50, to be paid in installments as the work progressed, in its several stages of construction ; the final payment of $2,000 to. be paid within thirty days after the entire completion of the work. The several payments were to be made only upon the architect’s certificate that they were properly due. The contract also provided that, if required, the contractor should furnish security against mechanics’ and other liens prior to payments, by presenting the architect with a certificate of the county clerk that no liens or claims are recorded against said work on account of the contractor; and if there shall be any lien or claim when any payment shall fall due, upon which defendant might be made liable, then it was authorized to retain and hold a sum sufficient to furnish indemnity against such claim or lien, and hold the same until the lien be discharged. It was also provided that, if the contractor made default in the performance of the contract, defendant might go on and complete the same in any manner to it agreeable, after having given the contractor three days’ notice in writing; the expense of such completion to be deducted from any payments due or to be due thereunder. After making such deduction, if any balance be due the contractor, such balance should be paid him; all payments due, if any, on default, to be postponed until the entire work should be completed. Rollins made default in the performance of this contract, and defendant completed the building. Upon completion there was found due Rollins under the contract $2,300, which by stipulation of the parties in interest, has been paid into court to await the result of this action, and defendant became thereby relieved from liability, and is now without interest in the controversy.

Rollins abandoned his contract December 19, 1893. Prior thereto, and on the 2d of that month, he executed and delivered to plaintiffs this writing:

“ 1,049.47. Buffalo, N. Y, December, 2, 1893.
“Please pay to the order of Hurd Bros. $1,049.47, when the same is due me by the terms of the contract.
“O. L. Rollins.
“ To the Johnson Park Investment Company, City.”

On the 8th of the same month he executed and delivered this-writing :

“ $2,000. Buffalo, N. Y., December 8, 1893.
“ Forty days after date, pay to the order of E. & B. Holmes two thousand dollars ($2,000), "value received, and charge the same to-the account of C. L. Rollins.”

At the same time, and accompanying this instrument, he executed and «delivered the following:

“For value received, and $1 to me in hand paid, the receipt whereof is hereby acknowledged, I hereby sell and assign to E. & B. Holmes $2,000 worth of any claim against the Johnson Park Investment Company, wliich amount will be due and payable by said company in (30) days from the completion of a block of flats on Johnson Park, which building I agree to have completed within ten days from date, for which amount I have given E. & B. Holmes a draft on said company, payable in forty days from date. “ C. L. Rollins.
“Buffalo, H. Y., December 8, 1893.”
On the next day he executed and delivered the following:
“Buffalo, K Y., December, 9, 1893.
“ Johnson Bark Investment Company: Please pay to C. A,
Peters & Son the sum of nine hundred and sixty-nine (¡$969.00), and charge same to me. “ C. L. Rollins.”

On the 11th day of January, 1894, plaintiffs filed a mechanic’s lien, in conformity to the statute, for a further claim due them of $539.82, and served the required notices thereunder. In like manner, and on January 17, 1894, Peters & Son filed a mechanic’s lien for the amount of their claim covered by the order given them. Plaintiffs presented their order to defendant on the same or the next day after it was received. E. & B. Holmes presented their order and assignment December 20, 1893, and Peters & Son on the 13th of December, 1893. Hone of the orders were accepted by the defendant. All of the claims were for materials furnished for the building. The court allowed these claims in the following order: First, the amount of Hurd Bros.’ order; second, amount of the mechanic’s lien filed by them; third, the lien of Peters & Son. These claims exhausted the fund. The court found as a conclusion of law that the orders given to Peters & Son and to Holmes did not operate as an equitable assignment pro tanto of the fuud due under the contract, and consequently were not liens upon it; that the order to Hurd Bros, was an equitable assignment of the fund; that the assignment to Holmes was of the last payment due under the terms of the contract, and was also subject to the condition requiring all liens to be discharged from the premises; and that the right to recover was postponed until the discharge of the liens.

We think the court clearly right in holding that Holmes and Peters orders did not operate as an equitable assignment of the fund. They were not drawn upon it, or any fund, but were simply bills of exchange, and required acceptance before any liability was created against any person beside the drawer. Brill v. Tuttle, 81 N. Y. 454.

We concur, also, in the conclusion that the order to plaintiffs constituted an equitable assignment of the fund, and that it is entitled to be first paid. There is much in the early authorities tending to uphold that claim that this order is subject to the same rule applied to the orders already mentioned. Later decisions, however, mark with much clearness the distinctive lines; and while evidence may present a case containing mixed questions of law and fact, yet we are not so troubled upon present proof, but find the authorities sufficient to support the conclusion reached. Brill v. Tuttle, supra; Lauer v. Dunn, 115 N. Y. 405; 26 St. Rep. 412; Crouch v. Muller, 141 N. Y. 495; 57 St. Rep. 585.

Further than this we are not able to uphold the rule adopted by the court below. The writing to Holmes it upon its face an absolute assignment of $2,000; not of the last payment which would fall due under the contract, but of “ any claim against the defendant, It may well be that the parties had before them, at the time this assignment was executed, the contract, and that when the instrument was drawn the parties supposed that it would be paid from the last payment. The recital of the instrument itself shows this, as therein it is specified that an amount equal to $2,-000 will be due and payable thirty days from the completion of the block, and Rollins then agreed to complete it in that time, and recites the giving of the draft, payable in forty days. But all this in no wise limits the operation of the assignment to the particular payment. Its language is absolute, and operates upon any claim due from the defendant equaling $2,000. It is quite evident from the testimony, the contract, and the assignment, that all parties then contemplated that the contract would be performed and that the amount of money secured by the assignment would be paid when the draft matured. But the language of the assignment excludes a construction that Holmes limited himself to this specific payment, as its terms embraced-any sum and any payment due or to grow due under the contract for its amount, and it became a lien thereon, subject to the rights of other lienors prior in point of time. It is undoubtedly true that, where the language of an instrument is ambiguous, resort may be had to surrounding circumstances to determine the intention of the parties, and force be given to such intention in a proper case. But here there is no ambiguity. The language is clear, plain, and absolute. In such case the court is without power to alter or change its terms or effect, simply because the parties contemplated at the time that the right would be discharged at a particular time and from a particular payment, where no such limitation is made in the instrument itself. Aside from this, it is at least doubtful, if the language was “ the last payment,” that it would be held that the last payment secured by the contract was necessarily intended. Beardsley v. Cook, 143 N. Y. 143; 62 St. Rep. 144; id., 67 Hun, 101; 51 St. Rep. 405. The contract provided that if default be made all payments should be postponed until the completion of the work, and any payment then due or to grow due would become by its terms a last payment. But we rest our decision on the ground that the assignment covered any sum that might be due at any time during the contract. The claim that the assignment was subject to the discharge of all liens cannot be sustained. The clause in the contract upon which this finding is based is “ that, if it be required,” the contractor should furnish security, and a certificate that no liens existed, and, if, when any payment became due, there should be any claim or liens, defendant should have the right to retain a sum sufficient for indemnity until the lien was discharged and canceled. These provisions were clearly for the protection of defendant, and the claim is answered by the decision in Lauer v. Dunn, 115 N. Y. 405; 26 St. Rep. 412.

Plaintiff relies upon Bates v. Trustees, 58 St. Rep. 790. As to this case, it is sufficient now to say that in two particulars it is clearly distinguishable. First. The contract provided that no payment should be made until the contractor had procured a certificate from the clerk that no liens had been filed and remained unsatisfied of record ; and it was-held that this clausedistingnished the case from the Lauer Gase. Here the clause in the contract is different, and in all essential respects similar to the Lauer Gase. Second. The trustees were parties to the action in the Bates Gase, and insisted upon the clause as a defense. Here the defendant make no such claim, but set aside the fund for the lienors. The assignment having been made and delivered before the filing of the liens, and given for a valuable consideration, it becomes superior in right to the mechanic’s liens. McCorkle v. Herrman, 117 N. Y. 297; 27 St. Rep. 333.

Our conclusion, therefore, is that the judgment appealed from should be modified by providing that the Holmes assignment be a lien upon the fund after the plaintiffs’ assignment is paid in full, with interest. Costs of this appeal awarded to E. & B. Holmes.