text:
    JOSEPH S. SPINNEY, Respondent, v. FRANCIS B. THURBER and Others, Appellants.

      Agent purchasing goods for his principal — when the title to the goods remains in the agent until he is reimbursed for his eapenditwres.

    The firm of Hazen & Compton carried on a business in. Valparaiso, which consisted in taking orders from parties in South America for the purchase of articles in New York upon a commission. The orders were in the usual course of business sent to the firm’s agents in New York, who purchased the goods and shipped them to the firm, which held them until they were paid for and then remitted the proceeds to the New York agent, together with one-half of the commission. The plaintiff having undertaken to fill one of these orders, and having no funds of Hazen & Compton in his hands, purchased the goods and paid for them with his own money, taking hills of sale and a bill of lading in his own name. He indorsed the bill of lading to Hazen & Compton and sent it to them, understanding that they were to collect the money for him from the persons who ordered the goods.
    In an action of replevin, brought by him to recover the goods which had been seized under warrants of attachment as the property of Hazen & Compton, while loaded on a vessel lying in New York harbor:

      Held, that the title to the property remained in the plaintiff and that he was entitled to recover the possession thereof.

      Farmers and Mechanics’ Bunk v. Logan (74 N. Y., 568) followed.
    Appeal from a judgment in favor of tbe plaintiff, entered on a verdict directed by the court.
    This action was brought originally against Bernard Reilly as sheriff, and was an action for the claim and delivery of personal prop erty of the value of $1,500, loaded by the plaintiff on the bark Silas Fish, then lying at New Y ork, and bound to Valparaiso, Chili. The defendants were, by an order and under section 1421 of the Code of Procedure, substituted for sheriff Reilly, and by their answer set up the fact that they had commenced an action; and secured an attachment against the property as being the property of the firm of Hazen & Compton, doing business at Valparaiso.
    The facts proved on the trial showed that Mr. Spinney was a commission merchant in the city of New Y ork, and that Hazen & Compton had been doing business through a firm in New York, who had neglected to fill certain orders they had sent them. The nature of Hazen & Compton’s business was to take orders from parties in South America for the purchase of articles in New York upon a commission. The course of business was to send the orders to the agents in New York, who purchased the goods and shipped them to Hazen & Compton, who held them until they were paid for, and remitted the proceeds to the New York agent, plus one-half the commission; and that the plaintiff in this case, having undertaken to fill these orders, not having any funds from Hazen & Compton, purchased the same, paid for them with his own money, and had not been paid for them at the time of the shipment. That in respect to all the goods sought to be replevined the purchase was made in his own name and delivered — all except a Root blower — to the bark Silas Fish under receipts in his own name, under bills of lading making the same deliverable to himself. As to the Root blower the bill of lading made that deliverable to Hazen & Compton, but it appeared on the trial, and by the commission taken in South America, that this Root blower had been ordered by Hazen & Compton for Carlos G. Huidobro; that they had no interest in it except one-half the commission. It further appeared that Mr. Spinney sent the bill of lading indorsed to Hazen & Compton, and so intended at the time of taking it, but that “ they were to collect the money for him from the people from whom they took these orders.” On his cross-examination he testifies that such was his intention when he took the bills of lading, and that the bill of lading was sent after the sheriff had attached the goods. '
    On this evidence of the plaintiff, and of the three witnesses examined on commission, the defendant' having given none, the court directed a verdict for the plaintiff, the value having been fixed by stipulation.
    More, Arlington <& More, for the appellants.

      Qeorge A. Black, for the respondent.
   Brady, J.:

Hpon the facts in this case the only question presented for the consideration of the court is whether the plaintiff owned the goods at the time they were seized under the attachment. The evidence seems to establish clearly that the plaintiff made the purchase of the articles for shipment, with the intention of retaining the title until payment was made for them by the person for whom they were purchased, and for whom they were shipped. The firm of Hazen & Compton were only intermediate persons or agents who had no interest in the matter except a commission and no title whatever to the property, upon the clear understanding on which the purchases and shipment were made, and according to the understanding existing in reference to the goods, their purchase and shipment.

The case of The Farmers and Mechanics’ Bank v. Logan (74 N. Y., 568), and cases cited, furnish the legal rule by which the question suggested is to be controlled and it is this: wliex*e commercial correspondents on the oi’der of a principal make a purchase of property ultimately for him, but on their own credit and with their own funds, and such course is contemplated when the order is given, they may retain the title in themselves until they are reimbursed. This rule is one of common sense, common justice and common honesty.

The judgment should be affirmed, with costs.

Davis, P. J., and Daniels, J.,, concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Brady, J.: Davis, P. J.

license: Public Domain

text:
    JAMES GREGORY, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Board of excise in New Tork — an employe thereof must apply for a warrant upon the comptroller before he can sue the city — an unreasonable refusal of the boa/rd to give the warrant relieves him from procuring it.

    Upon the trial of this action, brought to recover a balance of salary claimed to be due to the plaintiff, evidence was given tending to show that the plaintiff had been employed as an inspector by the board of excise commissioners of New York, and had been paid as such up to December 15, 1880; that in December, 1880, he received a notice that he had been suspended, but that considering himself still an inspector he tendered his services nearly every day from December, 1880, to September, 1881, and was ready and willing to perform his duties, but was not allowed to do so; that in September he demanded a voucher or certificate on which he might receive his salary from the comptroller; that in reply to his demand the excise commissioners said that they considered his suspension a dismissal and did not give him the voucher; that he demanded his salary from the comptroller.

      Held, that in dismissing the complaint, upon the ground that the plaintiff should have procured a mandamus compelling the board of excise to give him a warrant upon the comptroller before suing the city, the cpurt erred.
    That the question as to whether the refusal of the board of excise to give him a warrant, upon the ground that they considered his suspension was equivalent to a dismissal, was not an unreasonable refusal, should have been submitted to the jury, and that if they found it was unreasonable the plaintiff might maintain his action. (Davts, P. J., dissenting.)

      Bancker v. Mayor (8 Hun, 409) followed; Bannai v. Mayor (66 N. Y., 585) distinguished.
    Appeal by the plaintiff from a judgment, entered upon an order made at tbe circuit dismissing his complaint.

      Elliott Scmdford, for. the appellant.

      D. J. Deem, for the respondent.
   Brady, J.:

This action was brought to recover a balance of salai’y claimed to be due' to the plaintiff as an inspector employed by the board of excise commissioners in 'this city from December 1,1880, to September 1, 1881, at the rate of $1,000 per annum. The defendant set up among other things that by a resolution of the board of excise duly passed on the 15th day of December, 1880, the plaintiff was suspended from duty and pay from that date, and that by a subsequent resolution of the board duly passed on the 18th of January, 1881, he was removed from his position as inspector, such removal to take effect from the date of his suspension, and further that he acquiesced in such suspension and removal and abandoned all claim to the position of inspector, and performed no services as such between the 15th of December, 1880, and the 15th of December, 1881.

The plaintiff testified that he was inspector from 1876 until 1880 ; that he received $1,200 a year until toward the end of 1879, when his salary was reduced to $1,000; that he was paid up to the 15th of December, 1880, and that from that time to the 1st of September, 1881, he received nothing; that he demanded his pay from the excise board and from the comptroller; that there remained due to him about $709.30; that in December, 1880, he received notice of his suspension, but considering himself still inspector he tendered his services nearly every day from December, 1880, to September 1, 18S1, and during that period was always ready and willing to perform his duties; that he regarded his notice of suspension as a temporary thing and, therefore, tendered his services day after day expecting to go back or to be put again on duty. He said on cross-examination that he was not allowed to perform the duty of inspector, although he went and tendered his services. It further appeared that he, in connection with others who had been suspended, demanded their restoration in writing, and that the plaintiff, in writing about the ninth of September, sent a communication to the board of excise in which he stated that he was advised that the boar! had no power to suspend him without pay; that he had been ready and willing at all times to perform the duties of his position, and having performed all those that had been required of him he demanded a voucher or certificate on which he might receive from the comptroller, as provided by statute, his salary out of the funds in the treasury. Thereupon it was admitted on the part of the defendants that the board did not give him any voucher.

The plaintiff further testified that in reply to his demand which had been served on the board of excise they said they considered the suspension a dismissal, and did not give him a voucher for which he asked. It was also shown on behalf of the plaintiff that an appropriation had been made by the board of estimate and apportionment for the payment of the salaries and expenses of the employes of the' board of excise, and the general expenses of the board from May 1, 1880, to May 1, 1881, and on the 30th of December, 1880, an additional appropriation was made and a balance of $23,917.51 remained unexpended on the 1st of January, 1881, and a balance of $3,708.02 remained unexpended on the following first of May; and that the appropriation made for the same purpose in the following year from May 1, 1881, to May 1, 1882, was $71,220, of which a balance of $17,605 remained unexpended on October 1, 1881. Upon the cross-examination of the witness, who was called upon to show the details of these appropriations, he said that the balances had been paid out in current expenses pursuant to requisitions or vouchers coming from the board of excise; and on being asked this question, On such requisitions the balances you speak of have since all been paid out ? ” he answered, “I don’t know; I presume so.” The effect of which testimony was to'leave the fact apparent that there was a balance out of which the plaintiff’s salary, if he were entitled to it, could have been paid.

The defendant’s counsel after the defendant had established the facts detailed, then moved to dismiss the complaint upon the ground that the demand made by the attorney for the other side shows the theory of the law concerning a demand of that kind; that he is, under the adjudication of the Court of Appeals in Dannat v. The Mayor, bound to make his demand on the board that employs him, and in case they refuse to draw a requisition on the special fund which is in the comptroller’s hands to be paid out on their requisitions, his quarrel is with them, and he has no connection with the city treasurer or with the fund in the city treasury.

The court granted the motion to dismiss, to which ruling counsel for the plaintiff duly excepted.

The question presented is whether the dismissal of the complaint was justified by the decision in the case of Dannat v. Mayor (66 N. Y., 585). In that case it was held that under the act of 1873, notwithstanding the apparent separate and independent organization of the board of education, it was necessary for a creditor of that board to obtain its draft upon the comptroller, which must be presented to the finance department as the voucher, and must there pass through the auditing bureau to the comptroller, and go through all the steps to final payment which were required of every other claim against the city treasury. It must be remembered, also, that by the act of 1851 (chap. 386, Laws of that year) it was provided, by section 16, that no money appropriated for the purposes of education could be drawn from the treasury except by a draft of the board of education signed and drawn in the form specified.

Under the act of 1874. (chap. 642, Laws of that year) and which was amendatory of other acts of the legislature upon the subject, it is provided that the commissioners of excise shall receive a salary not to exceed $5,000 a year, to be fixed by the board of estimate and apportionment of this city, who shall annually fix such amount as may be necessary for the hire of employes, rent and other necessary expenses of the board of commissioners, which shall be paid out of the moneys received for licenses. And these moneys received for licenses, it was provided by the act of 1870, of which the act of 1874 was amendatory, should be deposited with and paid over to the chamberlain within thirty days after their receipt.

The manner in which the employes shall be paid is not expressed in the act of 1874, but it is supposed that the act of 1873, of which the decision in Dannat v. The Mayor is predicated, determines the system and is controlling. This would render it necessary for the plaintiff in this action to proceed by mandamus to compel the excise board to give him the voucher, unless there exists some element in the case by which such a course becomes unnecessary. The learned counsel for the appellant thinks that the plaintiff’s demand upon the excise board for a voucher has relieved him from the necessity of adopting tbe course suggested, because tbe refusal of tbe board to give it was unreasonable. And tbis view seems to be sustained by the case of Bancker v. The Mayor (decided in this department and reported in 8 Hun, p. 409; see, also, upon the same subject Bowery National Bank v. The Mayor, 63 N. Y. 336.) Presiding Justice Davis in the former case, in a dissenting opinion said: If the city authorities on such facts being shown to them had refused to allow and pay the demand notwithstanding the unreasonable and illegal refusal of the commissioners to approve the amount, then the plaintiffs might upon proper proof maintain their action.”

The case of Bancker v. The Mayor was one brought to recover for work, labor and services performed in the building of the Harlem court-house. The plaintiffs prepared bills and presented them to the commissioners for approval, in pursuance of section 3 of chapter 410 of the Laws of 1810, authorizing the construction of the courthouse ; but the commissioners refused to approve of them, giving as a reason that they had no personal knowledge of the matter. The court held that it was an unreasonable refusal and dispensed with the necessity of obtaining their approval.

In this case the refusal to give the voucher demanded was placed upon the ground that the commissioners considered the suspension of the plaintiff to be a dismissal. There is a marked distinction between this case and Dannat v. The Mayor (supra), therefore. There was no attempt in that case made to obtain the voucher from the board of education. The action was brought directly upon a contract made by the department of public instruction for building a school-house, and inasmuch as no attempt had been made to obtain from the board of education the proper voucher, the court held that the plaintiff was not, upon the facts which appeared in the record, in a condition to maintain the action. The case was, therefore, not decisive of this one. Here it appeared that the claim was not only presented to the board of excise of which the plaintiff was an employe, and a voucher demanded but refused, but that the claim was also presented to the comptroller; and, further, that by the act of the legislature, under which the board of excise was created, a fund was provided for the express purpose of paying claims kindred to that of the plaintiff, and that the refusal of the board to give the voucher may have been unreasonable, a fact which, if found in favor of the plaintiff, would, under the authority of Bancker v. The Mayor (supra), require a consideration of the claim notwithstanding the decision in Dannat v. The Mayor.

This question was not considered. The motion to dismiss was predicated chiefly, indeed exclusively, upon the rule laid down in Dannat v. The Mayor, which we have seen presents very different elements from those distinguishing the case at bar.

In conclusion it may be said that it is a matter of no consequence, so far as the plaintiff’s claim is concerned, whether the board of excise is a State board or a branch of the city government. The money out of which he was to receive compensation for his services was deposited in the treasury of the city, and they were directed to reserve it for such payment.

For these reasons the judgment appealed from should be reversed and a new trial ordered.-

Daniels, J., concurred in the result.

Davis, P. J.

(dissenting):

I feel obliged to dissent from the conclusion of my. brethren. The case is not, in my opinion, distinguishable from that of Dannat v. The Mayor. The board of excise is a body of officers created by statute charged with certain public duties over which the defendants, as a corporation, have no such control or authority as charges them with liability for the conduct of that board.

The city is to pay salaries of certain subordinates or officers of the board, but to pay them only out of a specified fund and upon specified vouchers. There is no liability upon the city without the required voucher, and the city is not responsible for any neglect or misconduct on the part of the board of excise in refusing to give the voucher. The case of Bancker v. The Mayor is not, in my opinion, at all analogous to this. In that case the special commissioners to construct the Harlem court-house were agents or servants of the city or county acting for its benefit, and not an independent body of public officers discharging official functions created and imposed by statute, and in respect of such functions independent of the city. Their improper act in refusing a certificate for work might well be regarded as the act of the city by its servants or agents, but it is not consistent with well established principles and distinctions to so regard the action in this case of the board of excise.

I think the court at circuit was right in its ruling and should be affirmed.

Judgment reversed, new trial ordered, costs to abide event.


author: Daniels, J.:

text:
    MARGARET KENNEDY, as Administratrix, etc., of MATTHEW KENNEDY, Deceased, Appellant, v. THE MANHATTAN RAILWAY COMPANY, Respondent.

      Negligence — a master is not liable for an injwy to a servant, caused by an accident wising from a risk incidental to his employment.

    The plaintiff’s intestate was employed by the defendant, an elevated railway company, to signal a contractor who was blasting rocks near a portion of the railroad, and also to signal the defendant’s trains when approaching that point. The intestate was required to climb one of the columns supporting the railway and place himself on the easterly track, and from that place signal the contractor, and the approaching trains. Just after signaling a train going south he discovered a train coming from that direction. To avoid this train he attempted to reach a girder to the north of him by passing between the tracks. Just as he was stepping on the girder he was struck’ by the train, thrown to the ground and killed. The girder was about ten inches wide. It was customary for persons employed upon the tracks to avoid trains by stepping on those girders or by passing themselves down between the ties, through a space about eighteen inches wide, and waiting there for the trains to pass. At some-places platforms had been constructed outside of the tracks upon which a person could stand with safety. The failure of the company to have such a platform at the place of the accident was claimed to be a negligent act, rendering it liable for the loss occasioned by the death of the intestate.'

      Neld, that the claim was untenable; that the risk of encountering accidents by trains approaching the place where the deceased was employed was assumed' by him when he voluntarily entered upon the discharge of his duties, and that the defendant was not bound to protect him against it.
    That the complaint was properly dismissed at the circuit.
    Appeal from a judgment, recovered on the dismissal of the complaint at the circuit.

      E. EUery Anderson, for the appellant.

      Ji. E. Deyo, for the respondent.
   Daniels, J.:

The'intestate was at and before the time of his death employed by the defendant to signal a contractor, when blasts in excavations made by him could be discharged, and also signal trains upon the defendant’s road when they were approaching that point. The rock was being blasted in Ninth avenue, north of Sixty-fifth street, in the «city of New York, and the intestate had been employed in the performance of this service from the 13th of June, to the 9th of July, 1881.

In its performance it was néeessary for him to place himself upon the easterly track of the elevated railway. That he did by climbing up a column supporting the railway, and from there making use of a signal flag to signal the approaching trains, and indicating to the persons in charge of the improvements, by sign or otherwise, that the blast might be discharged. On the occasion when the injury was received by him he had taken his position in this manner upon the railway, and signaled an approaching train passing to the south- at Seventy-second street on the westerly railway track, and to the persons in charge of the blast, that it could be discharged. While this was being done a train approached from the south on the easterly track. When that was discovered by him he endeavored to reach the northerly girder from him, passing between the tracks. This girder was about ten inches in width, and as he was in the act of stepping upon it he was struck by the train and thrown into the excavation made by the blast and immediately killed. Passing upon the girders was one of the ordinary means used - for escape from approaching trains by persons who were employed upon the tracks. Persons who were so employed were also shown, upon these occasions, to have passed themselves down between the ties through a space of about eighteen inches in width, and there to have remained until the train had passed. And there were no other modes in which collisions with approaching trains could be avoided by the persons who were so employed by the defendant, excepting that at some points on the railway platforms had been constructed outside of the track upon which a person could step and securely remain while the train was passing. And it has been insisted that as the company constructed no such platform or means of escape, at the point where the intestate was employed, that it was so far in fault as to render it liable for the loss to the widow and next of Mn occasioned by his decease.

It is not denied, neither can it be, that the defendant, as a general proposition, was bound to use reasonable care and attention in guarding persons in its employment against thé risk of accidents, but this rule has not been carried to the extent of requiring the observance of the obligation imposed by it so far as to secure protection of the person employed against such risk of injuries as is incidental to the employment itself.

In the performance of the service required from the intestate, and which he voluntarily undertook to render, he was subject to the risk of encountering accidents by trains approaching the place required to be occupied by him to give the signals which he was employed to communicate. That was plainly to be observed and seen by himself, as well as all others whose attention might be -directed to the situation. His employment required him to make úse of the instrumentalities as they had been located in that vicinity; it was all clearly and evidently before his eyes and within his comprehension, and Jie must have understood that in the discharge of his duties he subjected himself to the risk of just such an accident as was encountered by him. And as that was clearly indicated by the situation and the circumstances' under which he was obliged to act, that was one of the risks incident to his employment. This general subject was considered in Gibson v. Erie Railway Company (63 N. Y., 449), where it was held that accepting service with a knowledge of the character and position of the structures from which the employee might be liable to receive injury, he could not call upon the defendant to make alterations to secure greater safety, or in case of injury from risks which were apparent, he could not call upon his employer for indemnity.” (Id. 452.) This legal principle is directly applicable to this ease and was sufficient to justify the disposition which was made of it at the circuit. It was further considered in De Forest v. Jewett (88 N. Y., 264), and Kain v. Smith (89 id., 375), and approved on each occasion by the court. And Hough v. Railway Company (100 U. S., 213) is in general terms to the same effect. Sheehan v. New York Central, etc. (91 N. Y., 332), is entirely distinguishable, for that depended upon what was held to be the misconduct of the employer in exposing the employed to a risk not known or understood by himself. Neither does the case of Plank v. New York Central, etc., Railroad Company (60 N.Y., 607), in any manner tend to support the plaintiff’s action. For there the injury was produced by an unsafe structure over which the deceased was required to pass in the discharge of his duty in the night-time, and it was not subject to his knowledge and observation, as was the risk to which the intestate in this action was subjected.

No complaint was at any time made by him concerning the iiazards of his employment, and no request to guard him against them by any further or additional structure was at any time made, but he was contented to perform his services by conforming his conduct to the situation in which he was placed, and with the means of escape afforded by the structure upon which he was required to place himself. And the risk he encountered being evident to, and observable by him, he was wholly subjected to its consequences when the accident by which he lost his life took place.

Th: immediate cause of this accident was not the exposed situation in which he was placed, but it was the careless, inattentive and improper manner in which the train from the south was brought upon him. That was the misconduct of the engineer, who was his fellow servant, engaged in the same general employment, for which no redress can be secured against his employer. As the law stands the dismissal of the complaint at the circuit was warranted and the. judgment should be affirmed.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.'

Judgment affirmed.


text:
    DANIEL HERBERT and ELIAS HERBERT, Respondents, v. J. WARREN S. DAY, Appellant.

      Statute of limitations— a counter-claim connected with or arising out of fhe subject matter of fhe plaintiff’s demand may be set up, after an action upon such counterclaim is bm'red by fhe statute — Gods of Oinil Procedure, sec. 503.
    Where an action is brought by a contractor to recover the value of services rendered to and materials furnished for the defendant under a contract, the latter may set up as a counter-claim a demand for damages sustained by him by reason of the neglect and default of the plaintiff to perform his contract in accordance with the terms and provisions thereof, even though more than six years have elapsed between the time that his demand accrued and the time at which his answer was served.
    Appeal from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Gilbert O. Sulse, for the appellant.

      Tallmadge S. Foster, for tbe respondents.
   Daniels, J.:

The verdict was rendered for the amount considered by the jury to be unpaid for services performed and materials supplied by tbe plaintiffs for tbe defendant. There was no dispute as to what had been done or as to tbe materials furnisbed by them for Mm. The larger part was for the excavation required, and the labor and the materials used in finishing the cellar of the dwelling known as No. 121 East Twenty-fourth street. They were asserted to have been performed and supplied under a special agreement by which the plaintiff agreed to finish the cellar in such a manner that it would be afterwards dry and free from water, and for a stipulated price. There was a controversy in the case concerning the making of the agreement. The defendant testifying that the plaintiff, by whom the business was transacted in behalf of their firm, guaranteed that the cellar should be dry; while tbis plaintiff in Ms evidence denied the making of this guaranty, but at the same time conceded that he said the work to be done-would in his judgment make a tight Cellar. The jury could very well determine from this state of the evidence, as they seem to have done, as they rejected the fourth cause of action which included the charges made for the subsequent work required to make the cellar dry, that the agreement did contain the guaranty mentioned by the defendant.

The first work was finished in December, 1874. That was deemed to be all that was needed to rendér the cellar dry, and to finish it in other respects as it was desired and expected that would be done. And a bill of the labor performed and materials furnished up to that time was rendered to the defendant, and payments were made, as the plaintiff examined as a witness testified, upon this bill, but as the defendant stated them they were upon the contract; and which statement was most probably correct cannot be very important in the disposition of the appeals. For as the money was received by the plaintiffs it had the effect of reducing the demand, and in that manner the defendant had the full benefit of it in the decision of the case.

But after that work had been done it proved to be incomplete in ,the exclusion of water from the cellar. That still collected there, above the cellar bottom put in by the plaintiffs, to such an extent as to render the dwelling improper for domestic uses. And when the plaintiffs’ attention was directed to that fact they resumed their work there again, to, secure the end both parties had in view, of making a dry cellar. To do that required that part of the cellar bottom which had been laid should be taken up, and a connection made with a sewer to carry the water, accumulating from a spring supplying an old well, away from the building, By making that connection and restoring and adding to the work, the cellar was finally made dry, and the object the parties had in view was accomplished. It might very well have been done before, for the remains of the well were to be and were seen. And there was reason for asserting that the plaintiffs were in fault in the performance of their work for failing to provide an avenue for the escape of the water before they proceeded to lay the bottom they placed upon the cellar. For this additional work and material the plaintiffs charged the further sum of $490.17. But the right to recover it was resisted by the defendant for the alleged reason that it was necessary to complete the performance of the agreement as it had been made by the parties. And tbe jury seems to have adopted this view for this charge appears to have formed no part of the verdict.

But the defense made was not fully disposed of by rejecting this charge. The defendant had been excluded from the occupancy and use of his dwelling by the condition in which the cellar remained after the work done in 1874 had been completed, and during the time-also which was consumed in connecting the cellar with the seu^er and again completing the work in the summer and fall of 1875. And for that he claimed he should be recompensed by the verdict in this action. And the court held him to be entitled to that right, if his remedy for its redress had not been lost by the application of • the statute of limitations. Under that statute it was considered requisite that his claim for the allowance of damages should be made by the service of an answer in the action, presenting it as a counter-claim, within the period of six years from the time when it accrued. And the jury were directed to allow it if that time liad not expired when the answer containing it as a counter-claim was served, but to reject it if the answer was not in fact served before this period of six years had expired. The effect of this ruling was to continue the application of the statute until the actual service of the defendant’s answer,, and that ruling, while it defeated the counter-claim, would probably have been strictly accurate if the counter-claim had been an independent cause of action, unconnected with the cause of action itself relied upon by the plaintiffs. But it was not; for the right to-damages arose out of the partial failure of the plaintiffs to perform the contract which was the foundation of their own right to recover. Bor the rendition and acceptance of the account did not exclude the contract and its terms from the controversy. They were still pertinent and important to the claims of both parties to the action. And if the contract was still continued unaffected by the statute of limitations as to the plaintiffs, it would seem to follow that it must be in like condition as to the defendant. If it measured the obligations of the defendant, it had the same effect upon those of the plaintiffs. If they were not barred it was because the contract still remained in force when they commenced their suit.

As they had performed it,, their action was to be maintained or' defeated. They could only insist upon their right to remuneration as they had performed their agreement. If that were a qualified or defective performance, then the defendant iiad the right to rely on the qualification or defect. Whatever it was, it was carried along with the contract, and to the extent that it existed it would defeat the demand made by the plaintiffs for compensation for this work. It was an infirmity affecting the plaintiffs’ rights under the contract as long as thej’- were in a condition to be asserted. And if the statute of limitation did not defeat their remedy, it equally left the other unaffected, to which fhe defendant was entitled, for their failure to perform an integral part of the same agreement. If it was preserved in part, it was preserved as a whole, and it continued to be the measure of all the rights, and remedies of the parties.

The statute itself contains no provision requiring any different construction. It simply prescribes the time when the action itself must be commenced, without imposing any limit whatever on the time within which in the same action the defendant is to be restricted to the presentation of his counter-claim for a breach of the same agreement by the plaintiffs. If it had been intended to subject that to any other restriction than that within which it has been provided the answer shall be served, some positive evidence of that intention would have found expression in the law. That has been omitted, and the omission itself evinces the design that no distinction should be made between the right to enforce the several parts of an entire contract. Such a construction of the statute of limitations as would produce a different result would be strikingly unjust, for it would put it in the power of one party entitled to the partial advantage of a contract, to secure it by delay, even when the just enforcement of the residue of, and part of, the same agreement would avoid that result. And that could not have been intended to be promoted by the statute declaring the time within which an action should be commenced. What the law was intended to accomplish was to prevent the enforcement of stale demands, not to provide the means by which injustice might be secured by disabling one of the parties to an existing or open controversy depending on the just observance of the other terms of one entire agreement from asserting and maintaining his rights under it.

The provisions made for the allowance of counter-claims connected with or growing out of the subject of the action, support the construction which has already been given to the statute prescribing the times within which actions must be commenced. (Code Civ. Pro., § 501 sub. 1.) For without any restraint whatever, they are allowed to be relied upon by way of defense whenever the subject with which they may be connected is made the foundation of an action. No other circumstance has there been required to entitle the defendant to present his counter-claim than that it is connected with or arises out of the contract forming the foundation of the action. And as that was its character in this instance, the defendant was legally entitled to rely upon it for his protection as long as the plaintiffs could invoke the aid of the same agreement to establish their demand against him.

It is no answer to this right that they presented their demand on the alleged acceptance of the account. For the defendant’s obligation to pay that was to be found only in the agreement. If he bound himself to pay by not objecting to the account, it was to pay for labor performed and materials supplied in observing the terms of the contract, and if that was not done in a reasonable time, as the court at the trial held it should be, the defendant by force of the agreement was entitled to indemnity for the loss resulting to him from the delay. The right to that was rooted in the same agreement as the plaintiffs’ claim for their labor and materials, and it was no part of the object of the statute to withhold the proper legal remedy to redress the one, while it preserved it in full force for the benefit of the other. The rulings discriminating between the parties and excluding indemnity to one, while it permitted it to the other were excepted to by the defendant, and as he was injuriously affected by such rulings another trial will be necessary to attain the ends of justice in the action.

The rule to be applied is similar to that observed before the enactment of either Code, which allowed a party, who was liable on one portion of a contract, to protect himself by the allowance of damages sustained by himself through the default, in failing to perform another-part of the same agreement, of the other contracting party (Batterman v. Pierce, 3 Hill, 171); but enlarged by the present Code (§ 503) as to the extent of the damages to be recovered. As long as one remains it may be wholly or partially answered according to the facts by the other, while the law preserves the right of the plaintiff it can only be just by continuing that of the defendant,

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

Davis, P. J., and Brady, J, concurred.

Judgment and order reversed, new trial ordered, costs to abide event.


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    MARX OTTINGER and MOSES OTTINGER, Appellants, v. LOUIS STRASBURGER, Respondent.

      Purchaser of real estate — what title he will he compelled to accept — when, a title founded on adverse possession must he accepted.

    In 1788 certain premises in the city of New York were conveyed by the sheriff to one Beekman, who died in 1789, leaving a will by which he devised them to A. K. Beekman, who died in 1816, leaving a will by which he devised them with other property to his executors to collect the rents, pay debts and divide the real estate not sold into seven equal parts. He authorized them to sell and convey his real estate. No conveyance on the part of the executor was shown. In 1836 an action of partition was commenced between the Beekman heirs to divide the real estate still unsold. No reference was made therein to these premises.
    In 1831 one Thompson entered into possession of the premises, and continued to-occupy them personally, or by his tenants, to the time of his death in 1870. The premises were assessed to him in 1834, and he thereafter paid taxes thereon. Thompson’s executor collected the rents until 1883, when under a power of sale in Thompson’s will he conveyed the premises to the plaintiffs, who contracted to sell them to the defendant. The defendant refused to complete his purchase upon the ground that the executor’s title was defective.

      Held, that the title was good and that the defendant should be compelled to accept it.
    Appeal from a judgment in favor of the defendant,, recovered on a trial at the Special Term.

      F. F. Miovrath, for the appellants.,

      David 8. Walter, for the respondent.
   Daniels, J.:

The appeal has been taken from a judgment denying the right of the plaintiffs to a specific performance of a contract entered into between themselves and the defendant, for the sale of a lot of land on tbe corner of Baxter and Hester streets in tbe city of New York. Tbe contract was entered into on the 15th of February, 1882, an4 the plaintiffs covenanted therein to execute, acknowledge and deliver to the defendant or his assigns “ a proper deed containing a general warranty and the usual full covenants, for the conveying and assuring to him or them the fee simple of the said premises, free from all incumbrances except” alease, etc. Tbe plaintiffs were ready and willing to deliver tbe deed to the defendant in the form mentioned in the contract, but be refused to accept and receive it for tbe reason that tbe title of the plaintiffs to the land was deemed to be defective. They received tbeir title from Samuel Hall, as tbe executor of the last will and testament of Robert Thompson, who died in or about the year 1870. The deed to the plaintiffs was given on or about the 28th of February, 1881, and in form conveyed to them the title to the property in dispute.

But it was made to appear that Thompson, the testator, had no record title whatever to the property, and to establish his right to the premises proof was given of their possession by him commencing about tbe year 1821. Before that, and on the 1st of April, 1788, it was shown that tbe premises had been conveyed by a sheriff’s deed to Abraham Beekman, wbo did not appear to have disposed of them in any form during his lifetime. He left a will at the time of his decease, which occurred in or about tbe year 1789, by wbicb these premises were devised to Abraham X. Beekman. The latter died in or about the year 1816, also leaving a will by which tbis and other property was devised to his executors in trust to collect rents, pay outstanding debts and divide the real estate not sold into seven equai parts, with full power of sale and conveyance. Whether his executors ever in fact conveyed tbis property under tbis power of sale was not positively shown, but from the history given of it, it appears’to bave been next found in the possession of Robert Thompson. And that possession was proved to have continued either by the actual occupancy of Thompson or the renting of the property under his authority, from the year 1821 to the time of Thompson’s decease, which was about the year 1870. - After tbat it was in like manner rented and tbe rents collected by the executor of Ms estate, the grantor in the deed to the plaintiffs. This long and continuous occupancy of the property, prior to the conveyance by Thompson’s executor, extended through the period of sixty years, and it was further shown that while Thompson was in possession he claimed to own the property, and in addition to that his acts were those of an asserted ownership.

This continued possession was all that could be required to vest a title in the property by means of an adverse holding. -And from it and its long continuance a presumption arises that the property was in fact conveyed under the' power of sale contained in the will of Abraham K. Beekman, by his executors, to Thompson, for so long a possession creates the presumption of a grant to the person holding the property. (Cahill v. Palmer, 45 N. Y., 479, 485; Ward v. Warren, 82 id., 265, 268; Woolsey v. Morss, 19 Hun, 273.)

And the fact that such .a conveyance of the property had been actually delivered by these executors to Thompson is confirmed by an action of partition commenced in 1836 and terminated in 1839, by James Beekman and another as plaintiff^ against Stephen Yan Courtlandt and others, who were all the heirs, devisees and their descendants of Abraham K. Beekman. By the judgment in this action all the real estate which had not been disposed of or distributed by the executors of Abraham K. Beekman, was partitioned between his heirs, devisees and their descendants. But this judgment in no manner referred to these premises, and that omission indicates a very strong probability that they had been previously conveyed anc[ disposed of, for otherwise they would have formed a necessary part of the subject of that action. And as no person other than Thompson appears to have claimed any title to the property, it is to be presumed that in their disposition the premises had been conveyed to him. And that presumption5 was rendered entirely controlling by the long possession of himself, his agent and his executor, and left no reason for doubting his ownership of the property. If a title by means of such a possession, fortified by the presumption arising from the form of the judgment in partition, can ever become absolute and capable of being conveyed in fulfillment of a contract of this description, this was such a title. For it enabled the plaintiffs, as the grantees of the executor of Thompson, ..to do what they had covenanted should be done by their contract, which was to convey to the defendant the fee simple of the premises free from all incumbrances except a lease.

Whether a title depending upon oral proof to establish it by means of adverse possession should be directed to be taken in fulfillment of a contract of this nature, was considered in Hartley v. James (50 N. Y., 38), where it was said in a general way that “ the plaintiff was not bound to accept a title resting upon adverse possession.” (Id., 42.) But this point was not included in the case as it was presented to the court, and the statement made concerning it therefore is not entitled to be followed as authority. The same point was incidentally also considered in Mott v. Mott (68 N. Y., 247), where a doubt was expressed whether a purchaser could be compelled to take a title depending upon adverse possession and parol proof to support it, unless in a case beyond all reasonable doubt. (Id., 258.) The opinion in that case was delivered by the same judge who delivered the opinion of the court in the preceding case, and it is evident from this expression that the earlier case was not regarded as controlling upon this subject; and of the existence also of the further conviction that where the title was free from all reasonable doubt that a purchaser under a contract might be obliged to accept it. In Shriver v. Shriver (86 N. Y., 575) the point was again considered by the same court, and although not determined the opinion was clearly intimated that a vendee in a contract of this nature would be obliged to accept such a title. The standard of its certainty there adopted was that the proof should be so clear, as to the ability of the vendor to convey the title, as to render it the duty of a court to instruct a jury to find the fact of its existence. And when that may be the state of the proof it was considered that the vendee should be compelled to accept the title. (Id., 584, 585.)

It was further added that a mere possibility that the vendee’s title might be questioned was not sufficient to justify him in rejecting it. And the same point was ruled substantially in like manner in Belmont v. O'Brien (2 Kern., 394), where it was held that the purchaser could not decline a title offered to him by reason of the existence of two mortgages remaining unsatisfied of record, one of which had been given sixty-six years and the other eighty-four years previously. (Id., 400.) In Schermerhorn v. Niblo (2 Bosw., 161), which presented for consideration this precise point, it was held that a bare possibility that the title may be affected' by existing causes which may subsequently be developed when the highest evidence of which the nature of the case admits, and evidence amounting to a moral certainty is given that no such cause exists, will not be regarded as .a sufficient ground for declining to compel a purchaser to perform his contract.” (Id., 165.)

The proof of this long continued possession and use of the property establishes the further fact that no heir of Abraham K. Beekman could, by the addition of any period of infancy, entitle himself to a recovery of this estate. What the law required at the time when Thompson’s possession commenced for the acquisition of a title by means of adverse possession, was the continuation of that possession for a period of twenty-five years.

Abraham K. Beekman died, as already stated, in the year 1816. If he left infant heirs they were in being at that time, and whatever the pei’iod of minority may have been would have lapsed within twenty-one years after that time. And in addition to that the twenty-five years of continued possession required by the statute then in force would also have expired prior to the time when the executor of Thompson conveyed the property to the plaintiffs. And that was clearly sufficient to extinguish all-claims of all infant heirs of this owner, if any had been left by him at the period of his decease, and to perfect title by possession in Thompson. The statute in cases of this nature does not, and did not, permit of cumulative disabilities. (Peck v. Randall, 1 Johns., 165, 176; Becker v. Van Valkenburg, 29 Barb., 319; Fleming v. Griswold, 3 Hill, 85; Jackson v. Moore, 13 Johns., 513; Bradstreet v. Clarke, 12 Wend., 603.)

The consequence, therefore, is that if either of the heirs of Abraham K. Beekman was an infant child the suspension of the application of the statute would not be permitted to extend beyond the completion of his or her minority. But it would begin to run as soon as the infant heir or heirs of Abraham K. Beekman attained the age of twenty-one years; and would then' continue, as the party in possession of the property was undisturbed until the statutory period had expired, and that would operate as an extinguishment of every possibility previously existing upon which Thompson’s title could have been questioned or disturbed. This possession, together with that of the executor, did continue for so long a period as to exceed any possible minority and the statutory time required to complete an adverse possession. There was not even a bare possibility, therefore, that tbe right of the plaintiffs to this property could be in any form questioned. It had become as fixed and determined as any title well could be, depending on long continued possession and the presumption of the law arising from it that the possession had originated in a grant of the property. It further appeared that the property had been assessed to Thompson as the owner from the year 1824, and that he had paid the taxes upon it, which is an additional circumstance confirmatory of the conclusion that his title was entirely indefeasible. It had become all that the plaintiffs had obligated themselves to convey, and the defendant should have been required to accept it and pay the purchase-price. And as these facts were all found by the learned justice before whom the trial took place, and are completely sustained by the evidence, the judgment entered upon his direction should be modified so that judgment will be directed in favor of the plaintiffs requiring the defendant to receive and accept the property in controversy.

The plaintiffs should also have their costs upon this appeal.

Davis, P. J., and Daniels, J., concurred.

Judgment modified as directed in opinion, with costs to plaintiff on this appeal.


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    ELBRIDGE A. KINGMAN, Appellant, v. JETTE FRANK and GUSTAVE FRANK, Respondents.

      Husband and wife — right of a judgment creditor of the husband to eólleet a debt due to the husband from the wife. ,
    In this action, brought by a judgment creditor against tbe debtor and bis wife, to reach property claimed to be applicable to tbe payment of tbe judgment, tbe complaint alleged that tbe wife owed tbe husband f 1,040 for services rendered by him to her under an agreement by which she employed'him to manage and superintend a separate business carried on by her, at a stipulated price per week.

      Held, that under tbe facts stated, there existed a valid indebtedness owing from tbe wife to tbe husband and that tbe plaintiff could maintain this action.
    Appeal from a judgment in favor of the defendants, entered upon an order sustaining a demurrer to the complaint.

      John BrooTcs Leavitt, for the appellant.

      August Gohn, for the respondents.
   Daniels, J.:

This suit was brought by the plaintiff as a judgment creditor of the defendant Gustave Frank, after the issuing and return of an execution unsatisfied against his property. The only property which it was alleged he had that was applicable to the payment of the judgment was a debt of $1,040 owing to him from his wife. This debt was alleged to have arisen for services performed by him in her employment under an agreement to employ him to manage and superintend a separate business carried on by her as a dealer in dry goods and notions, for which she agreed to pay him eight dollars a week. It is further alleged that he entered upon the • performance of the agreement, and continued under it in her service until the alleged indebtedness had accrued in his favor. The demurrer was served upon the alleged ground that these facts did not constitute a cause of action, and it was sustained by the court for the reason that the husband himself coul\i not enforce the payment of his salary by an action against his wife.

That she could employ him as she did to perform services for her in her separate business resulted from the statutory provision empowering her to carry it on, the same as though she was an unmarried woman, and the existence of that power of employment derived from this statutory authority has already received the sanction of the courts. (Fairbanks v. Mothersell, 60 Barb., 406; Abbey v. Deyo, 44 N. Y., 343; Foster v. Persch, 68 id., 400.) As she could enter into a lawful contract for the employment of her husband in this manner, and has been required by the statute to be considered as a feme sole in the exercise of the authority conferred upon her, it would seem to follow that she could obligate and bind herself for the payment of the stipulated compensation. From the facts made to appear the sum of money alleged in the complaint has been earned by him, and become payable from her for the performance of his services under a lawful .agreement entered into by her,-and it is to be presumed in support of the plaintiff’s action that she would be willing to pay over the amount voluntarily to him in satisfaction of his demand against her husband as soon as the legal right to receive payment shall be acquired in these proceedings from her husband. Certainly the court has no ground to assume; and for that reason to defeat the action, that she would not honestly and fairly perform her contract by payment of the, money as soon as the plaintiff shall be placed in a position where he would have a legal right to receive it.

JBut it will not follow, from the inability of the husband to collect the debt by means of legal proceedings, that the plaintiff would be prevented from doing so by reason of the same disability, if it should be considered to exist, for this disability would extend no further than to affect the remedy, and would not stand in the way of the plaintiff to recover the debt, or of a receiver appointed for that purpose, under a proper judgment of this court. To warrant such a recovery all that would seem to be necessary is an obligation on the part of the wife to pay the money, and that -obligation has been created by her contract and the performance of her husband’s-services under it. Those facts, together with the acquisition of the demand by the plaintiff, or by a receiver in the action, would be all that could be legally required to maintain an' action for the recovery of the debt. In this respect the case would resemble that of a foreign executor or administrator, who while he could not maintain an action in this State to recover a demand due to the testator or intestate, might still assign it to another person who could upon the title so acquired successfully prosecute such an action, And that an assignee might in like manner recover this demand would seem to follow from the principle of Fitch v. Rathbun (61 N. Y., 579); for if the assignee of the wife may maintain an action against her husband for the conversion of her property, it would seem to follow that the assignee of the husband might also maintain an action against the wife to recover the amount of an indebtedness she had lawfully incurred to her husband. The case of Perkins v. Perkins (62 Barb., 531), when its circumstances are considered, will not appear to be an authority sustaining the conclusion arrived at by the Special Term. The other authorities, as well as the result .of the statute to which reference has been made, appear to be sufficient to enable the plaintiff to maintain this action, and to obtain satisfaction of his demand out of the legal obligation created against the wife in favor of her husband.

Tbe judgment should be reversed, with costs, and judgment should be directed for the plaintiff on the demurrer, with leave to the defendants to withdraw the demurrer and answer in twenty days on payment of the costs of the demurrer and of this appeal.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, with costs, and judgment directed for plaintiff on demurrer, with leave to defendants to withdraw the demurrer aud answer in twenty days on payment of costs of demurrer and on appeal.


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    CLARENCE SCRYMSER, Appellant, v. ROYAL PHELPS, Respondent.

      JSasement — separate conveyances of two buildings homing a common passage-way — when the easement of passage will be extinguished if not expressly reserved — when the mortgagee loses his right to such an easement by releasing the sen'vient tenement from the lien of the mortgage.

    In 1864 one Spofford owned a building on the north-west corner of Broadway and Morris street, fronting on Broadway, and also a building situated upon the adjoining lot on Morris street, in New York city. A passage, about seven and a-balf feet wide, led from Broadway through the corner building, to and through the west wall thereof and to the Morris street building, and to a third building erected on land belonging to Spofford, being an extension from the rear of the corner building. In tbe Morris street building, immediately in tbe rear of the corner building,' a stairs was maintained giving access to the upper portion of both buildings. The passage from Broadway was used for the common convenience of the three buildings. In 1864 two mortgages had been given upon the property, which were subsequently assigned to the Mutual Life Insurance Company at the instance of Spofford, who owned all the property, subject to them.
    Thereafter, in 1873, the company, in consideration of $25,000, released by a quit-claim deed the premises on the corner from the lien of the mortgages, describing them as running along the northerly line of Morris street, about fifty-eight feet, to an angle in the wall formed by the division wall between the corner building and the one adjoining on Morris street, and thence along said division wall thirty feet, more or less, to the northerly side of the mortgaged premises. No reference was made in this instrument to the passage, nor was any right to use the same reserved. Subsequently the title to this corner lot became vested in the defendant; no reference to the passage being contained in any of .the conveyances thereof.

      The mortgages on the remainder of the property were foreclosed and the property" was sold to the insurance company, and by it .was conveyed to the plaintiff. No reference to the passage was made in these conveyances.
    In an action by the plaintiff to restrain the defendant from obstructing the passage and preventing persons from passing through it to the plaintiff’s building: Meld, that the property released by the insurance company to Spofford extended to *the westerly line, or at all events to the center of -the division wall.
    That no right to use the passage remained in the company by virtue of its mortgages after it had executed the absolute release to Spofford; that no such right was or could be conveyed by it to the plaintiff, and that this action could not be maintained.
    Appeal from a judgment, recovered on trial at Special Term, and also from an order denying a motion for a new trial upon a case, and exceptions.

      John A. Brya/n and Frcmois M. Soott, for the appellant.

      George Be Forest Lord, for the respondent.
   Daniels, J.:

The acción was brought to compel the defendant to remove an obstruction which he had erected in the division wall between a building owned and occupied by him fronting on the north-west comer of Broadway and Morris street in the city of New York, and plaintiff’s adjoining buildings in the rear on Morris street, and to restore the hallway through the front building, so that it might be used by the plaintiff and his tenants occupying the rear buildings for egress and ingress to and from Broadway. The hallway was constructed from the Broadway front of the defendant’s building through the rear buildings occupied chiefly by the plaintiff’s tenants. This hallway constituted an avenue from the Broadway front to the ground floor apartments of the rear rooms in the plaintiff’s buildings. It was constructed in this manner by Paul N. Spofford in the years 1861 and I860, and a stairs was maintained in the plaintiff’s buildings immediately in the rear of defendant’s building, through which access was secured to the upper portions of both buildings. Spofford at the time when these changes or improvements were made in the buildings, was the owner of the premises both in'the front and in the rear, and both parties to the action acquired the title which he had to the property. Before he obtained title to it himself, two mortgages had been given upon it, one to secure the payment of $40,000, and the other to secure the payment of $10,000. These mortgages were both given in March, 1864. Before the execution of these mortgages a building was erected upon the Broadway front of the property through which the plaintiff claims the right to maintain and use the hallway. This building was bounded on the south by Morris street about fifty-eight feet and eight inches, and on the east by Broadway twenty-nine feet and nine inches. At the west it terminated in a brick wall through which the hallway extended into the premises upon the rear. Upon the rear part of the premises in question another building was erected, known as 2 and 4 Morris street, fronting upon Morris street. !After that an extension was built from the rear of the building on the corner of Broadway and Morris street, and this hallway was used for the common convenience of the occupants of the three buildings, and they were alike subject to the two mortgages upon the property which have already been mentioned. '

These two mortgages were assigned to the Mutual Life Insurance Company of New York in November and December, 1868. The assignments were taken at the instance of Spofford, who owned all the property subject to the mortgages, and he guaranteed the payment of the mortgage debts by his own bond in the penalty of $100,000. After these assignments were taken by the insurance-company, and the changes had been made in the buildings, and while the insurance company was the owner of the mortgages, and on or about the 6th of January, 1873, the insurance company executed and delivered to Spofford a release of the premises on the-corner of Broadway and Morris street from the lien of these mortgages. This release contained the following recital and discharge: “ And, whereas, the said party of the first part, at the request of the said party of the second part, has agreed to give up and surrender the lands hereinafter described, unto the said party of the second part, and to hold and retain xthe residue of the mortgaged lands-as security for the moneys remaining due on the said mortgages. Now, this indenture witnesseth, that the said party of the first part, in pursuance of the said agreement, and in consideration of the sum of $25,000 to it duly paid, at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has-granted, released, quit-claimed and set over, and by these presents-does grant, release, quit-claim and set over, unto the said party of the second part, ‘All that part of the said mortgaged lands which is described as follows: Beginning at the corner formed by the intersection of the westerly line of Broadway with the northerly line of Morris street; running thence, westwardly, along the northerly line of Morris street, about fifty-eight feet, to an angle in the wall formed by the division wall between the premises now being described and a building in the rear, forming an extension thereof ; thence running northwardly along said division wall, thirty feet more or less, to the northerly line of said mortgaged premises and land formerly of Garret Van Horne; thence running eastwardly along said last mentioned land, to the westerly line of Broadway; and thence southwardly along the same, twenty-nine feet and nine inches, to the point or place of beginning. The premises hereby intended to be conveyed being shown on the accompanying diagram by the color yellow, and being that portion of the said mortgaged premises properly known as number 29 Broadway; not, however, including the re'ar or extension thereof.”

“ Together with the hereditaments and appurtenances thereunto belonging,'and all the right, title and interest of the said party of the first part, of, in and to the same, to the intent that the lands hereby conveyed may be discharged from the said mortgages, and that the rest of the lands in the said mortgages specified may remain to the said party of the first part as heretofore. To have and to hold the lands and premises hereby released and conveyed to the said party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof forever, free, clear and discharged of, and from all lien and claim under and by virtue of the indentures of mortgages aforesaid, or of either of them.”

After it was executed and delivered Spofford mortgaged the property described in it to "William, Albert and Charles Hickman, as executors, to secure the payment of the sum of $50,000. This mortgage contained the same description as was contained in the release, except that it omitted the words “ not, however, including the rear building or extension thereon.” It was afterwards foreclosed, and on the sale under the judgment the property was bid in by the defendant in this action and a deed was executed and delivered to him of the premises containing the following description:

“All that certain lot, piece or parcel of land, situate, lying and being in the First ward of the city of New York, with the buildings thereon erected, bounded and described as follows: Beginning at the corner formed by the intersection of the westerly line of Broadway with the northerly line of Morris street; running thence westwardly along the northerly line of Morris street, about fifty-eight (58) feet, to an angle in the wall formed by the division wall between the premises now being described and a building in the rear forming an extension thereof; thence running northwardly along said division wall thirty (30) feet, more or less, to the northerly line of said premises and land formerly of Garrett Yan Horne; thence running eastwardly along said last mentioned land to the westerly line of Broadway, and thence southwardly along the same, twenty-nine (29) feet and nine (9) inches, to the point or place of beginning, and known as number twenty-nine (29) Broadway.”

And it is under this title that the defendant claimed and exercised the right of closing the passage-way between his building and those situated in the rear, by building in the space previously occupied by the passage-way through the division wall.,

The Mutual Life Insurance Company foreclosed the two mortgages held by it upon the premises in the rear of those released to obtain payment of the remaining half of the mortgage moneys not paid by Spofford as the consideration for the release. The premises remaining subject to the mortgages'were purchased by the insurance company, and a deed conveying the title to them to the company was made on or about the 25th of February, 1880, and in March, 1880, the company by two deeds conveyed the same premises to the plaintiff in this action. By one of the deeds it conveyed the lot and building immediately in the rear of the premises released, and by the other the premises still further west. By virtue of these deeds the plaintiff claimed that he had become entitled to the use and enjoyment of the premises purchased by him for himself and his tenants in the same condition in which they were at the time of the execution and delivery of the release by the company to Spofford. Prior to that time they were owned by him, and had by his voluntary acts been placed in that condition, and the buildings erected upon the lands were all occupied and enjoyed as one common property.

Ill the course of the argument it was insisted that the release did not include in its description the rear wall of the building standing upon the corner of Broadway and Morris street. This position was taken upon the language in the release designating the southerly and westerly lines. The southerly line was extended about fifty-eight feet to an angle in the wall formed by the division wall between the premises being described, and a building in the rear forming an extension thereof, thence running northwardly along said division wall thirty feet, more or less, to the northerly line of said mortgaged premises. But this position is not deemed to be well founded. For the' intention seems to have been to release to Spofford all that part of the mortgaged property known as No. 29 Broadway, and the only exception made from it was by the declaration that the release should not, however, include the rear building or extension thereof. The same conclusion is also supported by the fact that the westerly line of the premises described in the release was declared to run “ along said division wall,” which phraseology would ordinarily be understood as locating the line designated in the center of the wall. This has been the construction which has been given to similar terms made use of in deeds bounding lands on a highway, or a stream of water, for the language where no different intention is disclosed has been deemed to be sufficient to carry the boundary line to the center of the highway or street, as the case might be. (Mott v. Mott, 68 N. Y., 246.) Both from these terms, and those declaratory of the exception, it is plainly to be inferred that at least half, if not all, the division wall of the premises known as No. 29 Broadway was intended to be included within the bounds mentioned in the release. And the diagram attached to the release was plainly intended to convey the same impression. It will therefore be assumed that by the execution and delivery of the release, Spoffard secured the discharge of the premises from the mortgages either to the center or westerly bounds of the wall on the rear of the building standing on the corner of Broadway and Morris street.

In this release no reservation was made to the insurance company of any right or privilege for itself or any of the occupants of the property, still left subject to the mortgages, to use, occupy or enjoy any part of the premises released for any purpose whatsoever, but the instrument contained an absolute and unqualified release of the property described in it from the mortgages. The consideration which the company received for that object was the sum of $25,000, and-it as completely severed and discharged the-premises described in the release from the mortgages, as though they never had oeen included in them. In addition to this circumstance, the release contained no language from which an intention on the part of the insurance company could be inferred of reserving or securing to itself, or any persons afterwards acquiring title under it, of any right to this hall or passage-way; but it was framed in such a manner as to contain as unqualified and unrestricted a release of the defendant’s premises from- the mortgages as could well have been made. The diagram added to the description, and made a part of .it, is consistent only with the same intention, and that was to release the premises to Spofford free from all claim to or in them on behalf ■of the insurance company. This diagram contains no indication whatever of the existence of the passage-way and no reference was made to it, either directly or indirectly, by anything contained in the release, but it was the property as it is described, and also made to appear by the diagram, that was unqualifiedly and unrestrictedly released by the company to Spofford, and from an instrument executed and delivered in that form no intention can be inferred or presumed that it was designed to be qualified by the continuance of the right, or privilege, to use the passage-way for the accommodation or convenience of the buildings standing on the rear of the property, and in fact fronting upon Morris street. In Huttemeier v. Albro (18 N Y., 48) it was held by the court that “whether a right of way or other easement is embraced in a deed is always a question ■of construction of the deed having reference to its terms, and the. practical incidents belonging to the grantor of the land at the time ■of the conveyance. The intention of the parties is to be learned from those facts. (Id., 52.) Applying this rule to this case it, would seem to require the exclusion of the right, or privilege, now claimed and relied upon in behalf of the plaintiff, to maintain and support this action. The property intended to be released was described in the release by metes and bounds, and when that is the form given to the conveyance it is to be inferred from it, where no further intention is expressed or indicated, that all which is designed to be conveyed is the property so described, and that a way over other property of the grantor for the benefit of the premises cannot be claimed or sustained as an appurtenant to the premises so described. This point, as well as the effect of such an instrument, was considered in Parsons v. Johnson (68 N. Y., 62), where it was held that where there has been an easement with a dominant and servient tenement, and the ownership of the tenements has been unified or vested in the same person, as they were in this instance, “ when the ownership is again severed by a conveyance of the dominant tenement, the way will not pass by the general word ‘ appurtenances ’ merely, but there must be particular or general words indicating an intention to grant the way.” (Id., 65, 66.) The principle would also seem to as appropriately include a conveyance of the servient tenement itself, where no reference whatever is made to the .alleged servitude; but the property is conveyed in the same manner and by the same terms as though the servitude had no existence whatsoever. The way or passage, of the description of that claimed in this case, is what has been called a non-eontinuous easement, and it was said in the case just referred to that such an ■easement “ will pass only by words sufficient to create a new easement and annex it to the newly made dominant tenement, and the word ‘appurtenances’ is not sufficient.” (Id., 66.) “It is equally clear that it did not pass as an incident of the premises granted and as parcel thereof within the class of cases ” (previously cited in the same opinion.) “ These lands were conveyed by precise bounds, and hehce what is not included is supposed to be excluded.” (Id., 70.) Grant v. Chase (17 Mass., 443) is peculiarly pertinent in support of this proposition in its application to this case. Neither the cases of Lampman v. Milks (21 N. Y., 505), Simmons v. Cloonan (81 id., 557), nor Pyer v. Carter (40 Eng. Law and Eq., 410), contain anything in conflict with these views, or which can be relied upon in support of the proposition advanced in behalf of the plaintiff. While those of Shipman v. Beers (2 Abb. N. C., 435), and Shoemaker v. Shoemaker (11 id., 80) are directly in conflict with it. Numerous other authorities have been referred to in the points and arguments presented in support of the appeal, but without referring .specially to them it is sufficient to say that they are not in conflict with those to which reference has been made, and do not require any other or different construction than that which has been indicated to be given to this release.

It has been urged that it should be so construed as in effect to-create a new mortgage from Spofford to the ■ insurance company upon the remaining premises at the time when the. release was made, but such plainly was not the effect of the acts of these parties. What they did, and all that they did, was to release the property situated upon Broadway and Morris street from the mortgages, and that left the mortgages an incumbrance upon the remaining property described in them, as and from the time when the mortgages-themselves were given. This was the actual transaction of the parties and the court is not at liberty to change it by placing any other or different construction upon it or attributing any other’ effect to it. What was done was to release the premises absolutely to the releasee, subjecting them after that to his unlimited and unqualified control so far as anything contained in the mortgages-should from that time be considered.

The passage-way constructed and maintained by Spofford through the building was about seven and a-half feet in width, including about one-fourth of the Broadway front of the building, and it would do violence to the acts of the parties to so construe the release as to infer an intent that this was to be perpetually maintained for the benefit of the rear portion of the property, when no allusion whatever to such a reservation or exception was inserted in the release. The only consistent construction to be placed upon it is that which has been suggested; that it was intended to release to and vest in the releasee the absolute and unqualified title and control to and over the property mentioned and referred to in the release. And as by the mortgage afterwards given'by Spofford upon the same property, this hallway was not preserved, but the premises mortgaged were described as they were in the release, and were purchased by the defendant by the same substantial description, he acquired the same rights as had been created by the release and did not hold the property subordinate to the right or privilege now claimed and insisted upon in favor of the plaintiff.

By the foreclosure and sale upon the mortgages held by the company it acquired title to the premises desciibed in them, and to no more than that, and when the plaintiff received his deed from the company in like form the rights conveyed to him were subject to the same restrictions.

It has been further claimed that the plaintiff was entitled to damages for the closing of the hallway, by reason of the fact that Spofford executed and delivered another and later mortgage covering the entire property owned by him which had been acquired by the plaintiff, but as this mortgage in no manner attempted to create or preserve the right on which the plaintiff’s action is dependent, and merely included the real estate by its apt description by metes and bounds, it is not perceived how such an action may be supported by means of this incumbrance. The plaintiff has no title to the property over which the easement or servitude is claimed by means of this mortgage, neither did it in any form attempt to revive or perpetuate that which might have been claimed if it had not been for the execution and delivery of the release. That instrument'accordingly presents the fundamental difficulty in the plaintiff’s way, and because of the effect required to be given to it the action which was brought, by the plaintiff cannot be sustained.

It is not necessary to consider the appeal from the order denying the motion for a new trial. Such a motion has not been provided where the action has been tried by the court. But if it had been, as the plaintiff is incapable of maintaining -the right to use the defendant’s property, or any portion of it, in subordination to his own, the action cannot be maintained.

The j'udgment which was entered in the case is right and it should accordingly be affirmed, together with the usual costs, and the appeal from the order should be dismissed.

Davis, P. J., and Haight, J., concurred.

Judgment affirmed, with costs; appeal from order dismissed.


author: Daniels, J.: Brady. J.: Davis, P. J.

text:
    HENRY W. SMITH and Others, Respondents, v. THOMAS E. ARNOLD and MARIA T. ARNOLD, Appellants.

      Attachment — the affidavit must show a sum due over all counter-claims known to the plaintiff — Uode of Oml Procedure, sec. 636, sub. 1— when a reference to other papers on fie is unmailing in an affdmit.

    Upon an application for an attachment it must be shown by affidavit that the “plaintiff” is entitled to recover a sum named over and above all counterclaims known to him. It is not sufficient, where the complaint is verified and the affidavit made by an agent of the plaintiff, to state that the sum is due over and above all counter-claims known to the agent.
    An affidavit upon which an attachment was issued stated that the defendants had ' made a general assignment of them property, to which the deponent “begs leave to refer and make part of the moving papers herein.” Neither the assignment nor inventory, nor any part of either'of them, was made a part of the moving papers, nor were they produced when the motion* was made.

      Held, that if the applicant desired to avail himself of the additional proofs which might be supplied by the assignment or the inventory, he should have made the pertinent portions thereof parts of his moving papers; and that having failed so to do, or to produce them, the reference to them was unavailing.
    That they could not be produced and read on the hearing of a motion, to vacate the attachment, made upon the papers upon which it was issued.
    Appeals in. tbis and another action, between the same parties, from orders made at Special Terms denying motions made to vacate attachments.

      John H. V. Arnold, for the appellants.

      Walter Howe, for the respondents.
   Daniels, J.:

The motions were made upon the affidavits on which the attachments were issued. The proof of the causes of action was contained in an affidavit in each case made by Richard C. Sibley, and by the complaints in the actions which were verified by him. Neither of the plaintiffs made an affidavit in either of the actions. They resided’ in the city of Cincinnati, and were there engaged in business as distillers under the name of Henry "W. Smith & Co., and the causes of action set forth were for the cost-price of articles called French spirits, sold and delivered by the plaintiffs to the defendants. The fact that the amount claimed to be due and owing was so owing over and above all counter-claims known to the plaintiffs, was not stated either in the complaint or in either of the affidavits. In one of the affidavits made by the agent, the only statement upon this' subject, was in the following form:

“That defendants are indebted to plaintiffs to the amount of $6,590.91, over and above all counter-claims known to deponent, for goods, consisting principally of what are known as ‘ French spirits,’ sold and delivered to them by plaintiffs.
“That defendants are now indebted to plaintiffs to the above amount, over and above all counter-claims known to deponent, and ’ that sum and interest is now justly due and owing to plaintiffs by defendants.”

And in the other affidavit it was made in the following manner: “That defendants are indebted to plaintiffs to the amount of $2,604.09, over and above all counter-claims known to deponent, for goods sold and delivered to them to that amount, as more fully appears by the complaint herein.”

These statements were limited, therefore, to counter-claims known only to the agent himself. It was not made to appear by the affidavits or the complaint that the property bad been sold, or that the business had been conducted or managed by the agent, and consequently the limits of the knowledge of the agent upon this subject cannot be held to be coextensive’with that of the plaintiffs themselves. «, The Code, by subdivision 1, section 636, required the affidavits to show that the plaintiffs were entitled to recover a sum stated therein over and above all counter-claims known to them. This was not complied with in the affidavits which formed the basis upon which the attachments were issued. The defective statements were not aided or corrected by the complaints themselves, for they were verified alone by the agent. In fact the complaint in the first action is clearly at variance with the amount claimed to be due and owing by the affidavit of the agent in that action, for by the latter it is stated to be the amount of $6,590.91, while by the complaint the indebtedness is shown not to exceed the sum of $3,986.81. The attachments were issued upon these papers and upon no others. That is shown by the recitals contained in the attachments themselves stating that the facts upon which they issued had been made to appear by affidavit, tbe complaint being of course used, as it was allowed to be for this purpose, as an affidavit. And as these affidavits failed to comply with this requirement of the Code they were not'sufficient to permit either of the attachments to be issued. This precise point was considered in Murray v. Hankin (30 Hun, 37), where an affidavit made in this form -by an agent was held to be insufficient to wai’rant the issuing of an attachment. The same point was presented in Cribben v. Schillinger (Id., 248), resulting in the same conclusion. And if is further sustained by Ruppert v. Haug (87 N. Y., 141), and also by Steuben County Bank v. Alberger (78 id., 252). The statement was framed in this form with the intention that its requirement should be observed, and that when the papers are substantially defective in this respect an attachment should not be permitted to be issued.

By the principal affidavit upon which the first attachment was issued, it was stated that the defendants had made a general assignment of their property, to which the deponent, making the affidavit, begs leave to refer and make part of the moving papers herein.” This reference to the assignment and the inventory was to establish the disposition which the defendants were alleged to have made of their property and effects. But neither the assignment nor the inventory was, in fact, made a part of the moving papers; but they were left to stand upon the mere reference that they had been filed in the Court of Common Pleas. It was obviously not the duty of the court upon a i-eference of this description to proceed to the clerk’s office and inspect or examine these papers.

Neither does that service appear to have been performed by the justice allowing the attachment. If the applicants desired to avail themselves of the additional proofs which might be supplied by the assignment, or the inventory, to sustain the alleged indebtedness, it was their duty to make such portions as they considered to be pertinent a part of the moving papers, as they expressly stated that was intended and designed. As much as that certainly was requisite to bring the contents of these papers to the knowledge of the court in the application for the attachment. (Bennett v. Edwards, 27 Hun, 352.) For in no other form would those papers be before the judge for his legal or proper consideration. That they were not before him in any form appears further from the recitals in the orders denying the motions to vacate the attachments, for by those recitals it appears that these papers were, upon the hearing of the motions, produced before the court, but their use was objected to on the ground that they were not part of the papers upon which said warrant of attachment was granted, and are not annexed to the affidavit of said Richard O. Sibley nor so referred to therein as to make them, or either of them, part of such affidavit, or of the papers upon which said warrant was granted.”

This statement, as it was inserted under the authority of the court, is to be assumed to be a truthful relation of the fact, especially as the attachments themselves recited that they were made upon facts established by affidavit, and to neither one of the affidavits made by Sibley was any part of the assignment, or inventory, in fact, annexed. These papers were accordingly additional proofs brought before the court on the hearing'of the motions to establish the indebtedness and thereby sustain the attachments. And as those motions were made upon the papers upon which the attachments themselves were, in fact, issued, neither the assignment nor the inventory could be brought before the court to supply the defects in the papers on which the attachments were allowed. (Trow’s Printing Company v. Hart, 85 N. Y., 500.)

The papers upon which the attachments issued were -materially defective, for there was a shbstantial failure to comply with the provision of the Code already referred to, and that was in no manner supplied by any proof whatever appearing before the judge at the time when the attachments were allowed, and as it could not be supplied when the motions to vacate them were made by producing further proofs for the consideration of the court, it follows that they should have been vacated and set aside. An “ attachment (has been said to be) is in effect an execution and a creditor’s bill, and there are ■ doubtless many cases, and this may be one, where it would be well to have both before judgment, but until the legislature shall interfere, even the diligent creditor must conform his proceedings to the regulations of the statute. It would be intolerable if the property of a citizen was liable to seizure upon such vague and inconclusive averments as are contained in the affidavits before us.” (Steuben Co. Bank v. Alberger, supra, 258.)

The provisions of the Code are simple and easily complied with when the facts existing create a case within their terms; and when that has not been done, the courts are not required to be astute in sustaining the proceedings and thereby evading the language as well as the practical effect of the law as it has been enacted.

The case made on behalf of the plaintiffs in each of the actions was materially and substantially defective, and the order should therefore be reversed, with the usual costs and disbursements.

Brady. J.:

It does not appear from the statement in the assignment in reference to the plaintiff’s debt that there were no counter-claims against it, or that the amount of the notes mentioned were, or would be, due over and above all counter-claims. The statement admits a liability and it might, perhaps, be assumed that there were no offsets or counter-claims; but the statute requires proof from a creditor when an attachment is asked. The difficulty of giving the plaintiffs the benefit of the statement is that it does not appear to have been exhibited when the attachment was granted, and as Justice Daniels states, was not referred to particularly, the refer, enee being to the assignment, of which it formed a part, and for the purpose of charging the fraud and not for the purpose of showing the indebtedness, the allegation in that regard resting only on the affidavit of the agent. I feel constrained to agree with Justice Daniels on the authorities.

Davis, P. J.

(dissenting):

The assignment referred to and produced on the argument shows that the sum claimed in the agent’s affidavit was in fact the amount actually due over and above all set-offs. The affiant not being a party to the action, could only testify as to his own knowledge. This must be the case in all suits where the affidavit is necessarily made by the agent. He cannot swear that the amount is due over and above all set-offs to the knowledge of the plaintiffs. The Code should be so construed as to allow such an affidavit to be made if reference be made to some voucher or evidence of indebtedness which sustains the truth of the allegation of the amount claimed over and above all set-offs, etc. In this case no attachment could have been sued out if the section of the Code will not admit of such a construction, because the plaintiffs were not present to make the affidavit. , ' ■

I am in favor, therefore, of holding that the affidavit corroborated and verified by the reference to the assignment was sufficient to uphold the attachment in a case where the defendants make no pretense in the moving papers that the sum claimed is not actually* owing and due over and above all set-offs, etc.

I think the order should be affirmed.

Orders reversed, with ten dollars costs and disbursements.