author: Hardin, P. J.

text:
    JOHN W. PRATT, Respondent, v. CHARLES PECKHAM, Appellant.

      Contract for the sale of land — right of the vendor to maintain ejectment on the failure of the vendee to comply with the conditions of the contract — no notice to quit need he given, '

    In 1872 the plaintiff and defendant entered into a written agreement by which the plaintiff agreed to sell and convey to the defendant certain premises therein described (which were then in the possession of the defendant Under a former contract of sale executed by the plaintiff) for the sum of $711.33, that being the amount then due under the former contract, to he paid in five equal annual payments, with interest on all sums unpaid. The contract provided that the plaintiff would, on receipt of such payment at the time and in the manner therein mentioned, execute and deliver to' the' defendant a deed of all his right, title and interest in the premises, and that, in case of failure on the part of the defendant to fulfill his contract, or any part of the same, the plaintiff should immediately after any such failure have the right to declare the same void and retain whatever might have.been paid on said contract and all improvements that might have been made on said premises. Immediately prior to the commencement of this action, and while' the defendant was in default of his payments, the plaintiff took his accounts and papers pertaining to this matter to the defendant and demanded a settlement and payment of the balance due, which the defendant refused to make.
    Upon an appeal from a judgment, entered in an action of ejectment brought by the plaintiff, declaring the title to the réai estate described in the' complaint to be in the plaintiff, and awarding possession thereof to' him unless the defendant should redeem the premises upon the payment of the amount due on the contract, with interest and costs, within forty days, and requiring the plaintiff, in case such payments were made, to execute and deliver suck a deed as was provided for in the contract ;

      Held, that the judgment should he affirmed-

      That the plaintiff had an election to stand upon his legal title and to maintain an action for the recovery of the possession of the premises in question or to bring an action in equity for specific performance.
    That the vendee was not entitled to notice to quit or to demand of possession.
    Appeal from a judgment entered upon tlie report of a referee in Oswego county, declaring tlie title to the real estate described in the complaint to be in the plaintiff. Also declaring due to the plaintiff, at the date of the referee’s report, $891.71 on the contract for the sale of the property to the defendant, and awarding possession of the premises to the plaintiff, unless the defendant shall redeem the premises upon payment of the aforesaid sum within forty days, with interest and costs, and requiring the plaintiff if such redemption shall take place, to execute and deliver to the defendant “ such a deed of conveyance of said premises as provided for in said contract.”

      S. H. Dada, for the appellant.

      Howe <& Dice, for the respondents.
   Hardin, P. J.

On the 31st day of March, 1858, the plaintiff being the owner of the premises described in the complaint, entered into a contract in writing with the defendant, whereby the plaintiff agreed to sell and the defendant agreed to purchase the real estate described in the contract for the sum of $700, the whole to be paid in annual payments, the last payment to be four years from the first day of April, 1859. Defendant went into- possession under the contract and was in possession of the promises at the time of the commencement of this action. Prior to February, 1869, plaintiff and defendant “ had numerous other business transactions between them, and the plaintiff kept an account of said transactions together with an account of the payments made upon said contract, all together as one account.” The parties then agreed to have a settlement and adjustment of their said accounts and business transactions and the balance due on said contract, and also agreed to enter into.a new contract for the sale of said premises.” They had such an accounting and adjustment, “ and found the balance due from defendant to plaintiff to be $732.62.” They thereupon entered into a new contract for the sale of said premises by plaintiff to defendant, which is dated February 1, 1869, containing substantially the same terms as the first contract, except that the said balance of $732.62, which it was agreed should be the consideration of the said new contract for the sale of said premises was to be paid as follows: One year from the date of said contract, with interest thereon from the date of said contract.” As a part of the adjustment the parties canceled and waived the contract of 1858. The defendant continued in possession, after the execution of the new contract of the premises under the same. About the 1st of May, 1872, “ the said parties had another looking over their account and business transactions, and an adjustment and settlement, and came to an agreement to execute a new contract for the sale by the plaintiff to the defendant of the said premises, and did then and there enter into such new contract under their hands and seals, whereby the plaintiff agreed to sell and the defendant to purchase the said premises; said contract was substantially the same as the former two contracts had been, in its terms, except that the consideration for said contract as stated therein was agreed by the defendant to be paid to the plaintiff in five equal annual payments with interest on all sums unpaid.” It is found by the referee as a fact, viz: “ That upon such settlement and accounting it was found that the defendant was indebted to the plaintiff in a balance of $711.33, and it was then and there agreed between them that the said balance should constitute the consideration of the said contract entered into that day, and it was so entered in said contract as the consideration for said premises,” and they canceled the second contract.

It is also found, viz.: “ That the said defendant occupied said premises under said contract of May 1, 1872, up to the time of the commencement of this action,” and the defendant made several payments upon the last named contract, and after applying all those payments upon the sum stipulated in the contract the referee finds there was due for principal and interest at the commencement of this action the sum of $636.80. The referee has also found as a fact, viz.: “ That immediately prior to the commencement of this action, and while the defendant was in default in his payments, the plaintiff took his accounts and papers pertaining to this matter to the defendant, and demanded from the defendant a settlement and payment of the balance due on said contract, which the defendant refused to make.”

We are of the opinion that the findings of fact made by the referee accorded with the weight of the evidence, and must be accepted in determining the rights of the parties. From the date of the first contract, in 1858, down to this time the plaintiff has held “the legal title as trustee for the purchaser.” (Thompson v. Smith, 63 N. Y., 303.) By the terms of the contract of May 1, 1872, the defendant stipulated to make payment of the contract-price in “ five equal annual payments.” It was further stipulated in that contract between the parties, viz.: “ And the said party of the first part on receiving- such payment at the time and in the manner mentioned shall, at his own proper cost and expense, execute and deliver to the said party of the second part, or his assigns, a deed of all his right, title and interest of, in and to the premises above described.” It was further provided in that contract that “ in case of failure on the part of the said party of the second part to fulfill this contract or any part of the same, the said party of the first part shall, immediately after any such failure, have the right to declare the same void, and retain whatever may have been paid on said contract, and all improvements that may have been made on said premises.”

When the plaintiff took his accounts to the defendant “and demanded from the defendant a settlement and payment of the balance due on said contract, which the defendant refused to make,” we think the plaintiff had an election to stand upon his legal title, and to maintain an action for the recovery of the possession of the premises in question, or to bring an action in equity for specific performance on the part of the defendant. In the event that an action had been brought in the latter aspect, to compel a specific performance, a tender of the deed simultaneously with the demand would have been proper, and in accordance with the cases bearing upon that aspect of the rights of the parties. While the absence of the tender of the deed might not have defeated the right of recovery had the complaint contained an offer to convey, and while the omission to tender the deed might have been considered in the question of costs (Bruce v. Tilson, 25 N. Y., 194), we think the refusal of the defendant to make the payment of the amount due upon his contract authorized the bringing of the action in ejectment, and that such vendee is not entitled to notice to quit or demand of possession, if he is in default in making any of the payments or in performing any of the conditions or covenants specified in the contract of sale. (Pierce v. Tuttle, 53 Barb., 167.)

We think there is no force in the suggestion made by the counsel for the appellant, that the provisions of 2 Revised Statutes (312, § 57) should be applied to this case. That statute cut off the remedy of a mortgagee theretofore existing by way of an action in ejectment to recover possession of mortgaged premises. (Murray v. Walker, 31 N. Y., 399; Wynehamer v. The People, 13 N. Y., 485.) In the case of Carr v. Carr (52 N. Y., 251), cited by appellant, the sole title held by the plaintiff was such as he derived in virtue of the arrangement entered into with the purchaser of the land to advance and take title as security for such advances, and it “ was but a mortgage.” (See Opinion, p. 261.)

In the case before us, the legal title resided in the plaintiff. He has never parted with it. Besides, by the judgment entered, he is not allowed to recover until the defendant’s right of- redemption has been foreclosed by the expiration of the time within which he is allowed to redeem. If that time shall be suffered to expire, the title of the plaintiff will be as absolute and unquestioned as though he was purchaser at foreclosure sale. Several close rulings were had in the progress of the trial, in respect to the items of deal between the parties. After a careful inspection of the evidence, we are of the opinion that no ruling was had which was prejudicial to the rights of the appellant. The plaintiff had a written memorandum of some of the items on a slip of paper pinned to the contract, and he testified that he was unable to find it. His reference to the items on that paper in aid of his memory as to the items does not seem to be such an error as calls for an interference with the rule allowing it. It appeared by the evidence of the witness that the paper or memorandum was before the parties when they had an interview in the settlement of February, 1869 ; that it was looked over by both parties and used in connection with the settlement then had. After it appeai-ed that the paper had been lost, we do not think it was error to test the witness’ recollection of the items referred to in that settlement in the manner in which the referee permitted. "We think the evidence does not fall within the rule which excludes “self-serving declarations.” (Miles v. Sackett, 3 How. [N. S.], 150; Penniman v. Elliott, 27 Barb., 321.)

At the close of a very long cross-examination of the plaintiff, the defendant’s counsel asked him if he was a partner in Pool A, being a bucket shop arrangement for gambling at Oswego, in which his son, Charles A, was one of the managers. The question was objected to on the ground it was immaterial, incompetent and improper. It is now claimed by the appellant that an error was committed by the referee in excluding the answer to the question. It is not apparent from the case that the question called for any evidence that was material to the issue between the parties. If the object of the question was to affect or impair the credibility of the witness, whether it should be answered or not rested largely in the discretion of the court. (Ross v. Ackerman, 46 N. Y., 211.) The question is somewhat involved and complex, and we think no error was committed in holding that the question was improper.

We think the referee did not err in refusing to yield to the twenty-eighth request to find. The request is argumentative and asks that upon a certain state of facts being found 'it shall be determined that a certain “strong presumption” existed. We think the referee in the findings of fact made sufficiently answered the matters involved in the request. We have looked at requests twenty-nine, thirty, thirty-one, thirty-two, thirty-six and thirty-seven, and the refusals of the referee to find in accordance, therewith. Considering the requests in connection with the facts that are found in the body of the referee’s report we are of the opinion that no error was committed which should lead to an interference with the decision of the referee. Hpon a full consideration of the evidence before the referee, giving to his findings of fact such influence as we think they are entitled to, we are satisfied the referee has reached the proper conclusion. In the October Term of 1881, we heard a former appeal in this case and in the opinion then delivered we said, viz: “ It may be observed that the referee has not found, as a fact, that any deed was tendered by the plaintiff before commencing this action. Nor any finding of a demand of judgment after a default of defendant, under the terms of the contract before suit brought Nor is there any finding of wrongful withholding of the premises. Defendant went into possession by consent of plaintiff and continued in possession with plaintiff’s consent. Whether there was any usury in the contract was a question of fact much litigated at the trial, but we are not prepared to say that the referee’s finding that there was no usury was against the preponderance of evidence. The referee after finding the amount due upon the contracts, or for the land, might have allowed the defendant a reasonable time within which to pay up and have a deed of the premises. It was competent for the defendant to rely upon an equitable defense. His answer set up a purchase of the land and possession under contract from plaintiff, and he was authorized to set up the same facts which would if he were plaintiff in another action against the vendor entitle him to a conveyance of the land. (Traphagen v. Traphagen, 40 Barb., 537.) It has long been settled that an equitable defense may be interposed to a legal claim. (Dobson v. Pearce, 2 Kern., 156; Crary v. Goodman, 2 Kern., 266; Phillips v. Gorham, 17 N. Y., 275; Cuff v. Dorland, 55 Barb., 481.) Because the referee did not allow the defendant an opportunity to redeem the land upon payment of the balance found due with the costs of this action we think he did not give such effect to the features of the case presented by the pleadings and proofs as well as findings, as they were entitled to. (Stoddard v. Whiting, 46 N. Y., 627.) We think the referee in the trial now before us has followed the tenor of the opinion delivered upon the former appeal.

Judgment should be affirmed with costs.

Boardman and Follett, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    GEORGE SCOTT, Appellant, v. FRANCES M. SLINGERLAND, as Executrix, etc., of THOMAS B. SLINGERLAND, Deceased, Respondent.

      Evidence — right of a witness to read, a paper to refresh Ms memory — what declarations of a person who is alleged to have signed a lost contract may he proved to establish its existence — when to prove its contents.

    This action was brought by the plaintiff to recover for labor and. services alleged to have been performed for the defendant’s testator, T. B. Slingerland, pursuant to a written contract for the manufacture and sale of a compound, known as “The Old Homestead "Wild Cherny Bitters,” in a bottle for which the plaintiff had the patent. Upon the trial, the plaintiff being unable to produce the original contract, and the defendant having failed to produce it after having been notified to do so, the plaintiff produced what was claimed to be a copy of the original paper, which was dated April 20,1805, and purported to be executed by both parties and witnessed by one Q-. S. Armstrong, and called a witness, who testified that he was acquainted with the handwriting of the parties to the alleged agreement; that he saw an original paper in New York, which was signed by the plaintiff and Slingerland; that seals were opposite the names; that he read the paper; that the paper was in a safe, the key of which he had, that at the request of the plaintiff he took the paper from the safe and made a copy of it, and that the paper produced by the plaintiff was that copy; that the original paper was not in the handwriting of the paintiff or Slingerland, and that he could not tell in whose handwriting it was; that the safe was afterwards removed to Slingerland’s residence, the paper being then in the safe, since which time he had never seen it.
    The plaintiff then called an attorney, who testified that he drew a contract between the plaintiff and. Slingerland; that it was in reference to the manufacture of wild cherry bitters; that he drew it at the suggestion of both the parties; that he did not keep it, and thought he delivered it to one of the parties to draw a copy for the other; that he thought the paper was executed in his presence; that he could not state the contents of the paper with any definiteness, that he only knew to what it referred. He was then asked to read the paper produced by the plaintiff and then state all he recollected of the contents “ of the contract he drew.” Upon the objection of the defendant that the witness had no right to look at the paper and then give his evidence the referee refused to allow the witness to answer.

      Held, that he erred in so doing.
    That if the witness had been allowed to refer to and read the paper his recollection might have been refreshed, his memory quickened, and he thereupon might have been able to state the contents of the paper which he drafted.

      Huffv. Bennett if, Seld., 338) followed.

      The plaintiff called another witness, who testified that he had been acquainted with both the parties and had seen them at the manufactory; that he had seen and heard the paper read more than once; that he heard Slingerland speak of it in conversation with the witness’ father; that he had seen Slingerland write, and knew his handwriting; that the paper was signed by both Scott and Klinger land, and that there were seals after their names. He was then asked questions as to whether the paper provided for or referred to the manufacture of Old Homestead Wild Cherry Bitters; and was also asked to state its contents and what he had heard Slingerland say as to its contents, and what he had heard him say as to the terms of employment between him and the plaintiff. Objections to those questions as incompetent and immaterial, and that the contract claimed by the plaintiff to be in writing was the best evidence, were sustained by the referee.

      Held, that he erred in so doing, as the questions called for evidence which would tend to establish the existence of the original paper and the contents thereof.
    Appeal from a judgment entered, upon tbe report of a referee, in Oneida county dismissing the plaintiff’s complaint, with costs.
    Action by the plaintiff to recover for labor and services alleged to have been performed for defendant’s testator, at his. request, under an employment and in pursuance of a contract in the manufacture and sale of a compound known as “The Old Homestead "Wild Cherry Bitters,” in a peculiarly shaped bottle, for which the plaintiff held the patent, which bottle was known as a “ cottage bottle.” The referee has found as a fact, viz.: “ That there was no contract entered into between George Scott, the plaintiff in this action, and said Thomas B. Slingerland, deceased, as appears in the paper offered and received in evidence, marked Exhibit 2, and that the evidence fails to show that any cause of action stated in the complaint in this action existed in favor of the said plaintiff as against the said defendant.”
    Exhibit 2, produced by the plaintiff upon the trial, is claimed to be a copy of an original paper theretofore existing between the plaintiff and the testator, and it was used as secondary evidence of such contract and received as such. It bears date April 20, 1865, and purports to have been executed by the parties thereto, and to have been witnessed by J. S. Armstrong. Plaintiff was unable to produce the original upon the trial, but gave evidence tending to show that it was kept in a safe of the defendant. Notice was given to produce the original contract. Plaintiff produced as a witness Jerome B. Seely, who testified he was acquainted with the handwriting of the parties to the alleged, agreement, and that he saw an original paper of which Exhibit 2 is a copy, and that the original was taken from a. safe and shown to him in New York and that he read it, and that “ after they stopped manufacturing bitters I had the safe key, and I was at the manufactory and in charge of it for some purpose; while I had the safe key I made a copy of this paper at the request of George Scott; I took the paper out of the safe to copy it, and after I copied it I put the original back in the safe and locked up the safe; the safe was removed to T. B. Slingerland’s residence, on James street, Rome ; I helped to remove it; the papers were taken out immediately before the safe was removed, and this paper was among them; the papers were all put back into the safe and the safe put into a wagon and removed to Slingerland’s house; after the safe was at Slingerland’s house I did not see this paper; this is the copy of the paper I referred to and made; the paper is all in my handwriting, and written by me as a copy of the original; the original of this paper had the signatures of Scott and Slingerland ; the original was the same paper I had seen in New York and read; the original had seals opposite the names; I could not tell in whose handwriting the original paper was; it was not the writing of Slingerland or Scott; the original was the same one I had seen in New York and Rome; I did not know Armstrong’s handwriting, but it purported to be witnessed by him, as copy appears.” Thereupon the copy was offered and received in evidence, and marked Exhibit 2.
    Evidence was given tending to show that the original of which Exhibit 2 was a copy was kept in the safe of the deceased and was last seen in his possession. Notice to produce the original paper was given to the defendant. At the close of the plaintiff’s evidence a motion was made to dismiss the complaint on the ground that “ the alleged agreement on which this action is based has not been proved to have been made, executed and delivered by deceased, T. B. Slingerland.” Motion was reserved. Defendant thereupon gave evidence tending to show that no such original agreement ever existed. Plaintiff gave some replying evidence, but the principal question of fact upon which the decision of the referee has turned was whether or no such an original paper was ever in existence.

      O. P. Prescott, for the appellant.

      E. I. Stevens and William, Kernan, for the respondent.
   Hardin, P. J.:

In Nichols v. The Kingdom Iron Ore Company (56 N. Y., 618) it was held that secondary evidence of the contents of a written instrument when allowed does not obviate the necessity of proving the genuineness of the instrument, but renders it more imperative. In addition to the testimony of the witness who had made the copy, Exhibit 2, and who gave testimony tending to establish the existence of an original agreement from which the copy was made, the plaintiff offered further testimony to establish the existence of the original agreement. He called John B. El wood, an attorney, who formerly resided at Borne, and proved by him that he drew an agreement between the plaintiff and the deceased. He testified as follows : “ I drew a contract between Scott and Slingerland; the paper I drew was in reference to the manufacture of Wild Cherry Bitters, if I remember rightly; I drew it at the suggestion of both the parties, Scott and Slingerland; I did not keep the paper after I drew it, and I do not know whether or not I drew copies for each of them ; I drew, as far as I recollect, only the original, and delivered it to one of the parties to draw a copy for the other; I think the paper was executed in my presence; I am not absolutely certain, but speak from general recollection; since I drew the paper I do not know that I have ever seen it; I cannot state the contents of that paper with any definiteness, I only know to what it referred ; I have not read Exhibit No. 2, now; all I can state as to the contract I drew is that it referred to the manufacture of Wild Cherry Bitters. Plaintiff’s counsel requests witness to read Exhibit No. 2, and then state all he recollects of the contents of the contract he drew. Defendant objects to it as incompetent and immaterial. Witness has no right to look at Exhibit No. 2, and then give his evidence. Objection sustained and exception for plaintiff. The paper, as drawn, was drawn as directed by Scott and Slingerland; I drey the paper myself.”

We are of the opinion that the exception just quoted presents an error. If the witness had been allowed to refer to and read Exhibit No. 2, his recollection might have been refreshed, his memory quickened, and he thereupon might have been able to state the contents of the paper which he drafted. It is to be observed that the question, as propounded, calls for the recollection of the witness of the contents of the contract he drew.” We think it was allowable to put Exhibit 2 in the hands of the witness, and after that it was competent for him to state all he recollects of the contents of the .contract he drew.

The question seems to be decided by Huff v. Bennett (2 Selden, 338). Jewett, J., said in that case, viz.: “Although the rule is that ¡a witness in general can testify only to such facts as are within his ■own knowledge and recollection, yet it is well settled that he is permitted to assist his memory by the use of any written instrument, memorandum or entry in a book, and it is not necessary that such writing should have been made by the witness himself, or that it ¡should be an original writing, provided, after inspecting it, he can .speak to the facts from his own recollection.” Numerous authorities are cited in support of the proposition. We will not attempt to Teview the authorities, but content ourselves with following the authority from which the quotation lias just been made. We are of the .opinion the plaintiff was entitled to the evidence which was excluded.

Second, plaintiff produced the witness Watson, who had been ¡acquainted with the parties and seen them at the manufactorylie testified, viz.: “I have heard a paper read while I was at the manufactory; Scott produced it, and I have seen it and heard it read more than once; I never heard it talked of in the presence of Slingerland, in the factory; I have heard Slingerland speak of it in conversation with my father when I was present; I saw and heard it during the years I was living in Rome; I have had it in my hands ¡and read it; I have seen Slingerland write and know his handwriting ; this paper that I saw was signed by both Scott and Slingerland, and there were seals after their names ; Mr. Scott showed me •the paper; he took it from the safe in the factory and apparently returned it to the safe; he took it to the safe and after so doing I ■did not see it in his possession.” Thereupon the witness was asked ■the following questions, viz.: “ Q. Was that paper with reference fo Old Homestead Wild Cherry Bitters 1 [Objected to as incompetent and immaterial; paper the best evidence; not shown, lost or .destroyed. Objection sustained and exception for plaintiff.] Q. Did that paper provide for the manufacture of Old Homestead Wild Cherry Bitters and syrups, and the terms with reference to Scott for same ? [Objected to, same as last before. Objection sustained and exception for plaintiff.] Q. State the contents of that paper. [Objected to as before. Objection sustained and exception for plaintiff.] I have heard Slingerland speak as to the contents of this paper. Q. State what he said in reference to it ? [Objected to as incompetent and immaterial; contents of paper not proven; not best evidence; jiaper not lost or destroyed. Objection sustained and exception for plaintiff.] I heard Slingerland speak of the terms of employment between him and Scott. Q. State what Slingerland said in reference thereto ? [Objected to as incompetent and immaterial, and the contract claimed by Scott was claimed to be in writing, and not best evidence. Objection sustained and exception for plaintiff.] I heard Slingerland state the terms of the arrangement between him and Scott, with reference to the bitter and syrup man-factory. Q. State what he said in reference thereto ? [Objected to as last before. Objection sustained and exception for plaintiff.] ” Wo are of the opinion that the referee fell into an error in making the rulings which we have just quoted. Some of the questions called for testimony which would tend to establish the existence of the original paper. Under the circumstances disclosed by the evidence, we are of the opinion that the plaintiff was entitled to the evidence, which tended to establish the existence of the original paper, proposed to be given by the witness under examination. The fact did appear that the original paper was last in the possession of the deceased, and it was incumbent upon the plaintiff to establish (1) the existence of the original paper, and (2) he had a right to use the contents thereof to bear upon the question of the existence of the original paper. If the defendant had occupied the attitude of conceding that Exhibit 2 was a copy of the original paper, undoubtedly that copy would be the best evidence to be relied upon as to the contents of the original paper. However, inasmuch as the defendant was in the attitude of disputing the genuineness of the copy, as well as the principal fact which the plaintiff was seeking to establish, to wit, the existence of the original, of which Exhibit No. 2 was a copy, we think it was allowable to give the declarations of the deceased “as to the contents of the paper.” One of the questions which was objected to called for the declarations of the deceased in respect to the contents of the paper. If the witness had been allowed to give what the deceased “ said in reference to it,” the evidence would have strongly tended to establish the existence of the original paper. We are aware that there were very many strong circumstances and much evidence given by the defendant upon the trial of this issue, tending to show that there never existed an original paper of the kind claimed by the plaintiff. On the other hand, the plaintiff had given considerable evidence tending to establish that the original paper, which was last seen in the possession of the deceased, was executed by the parties thereto, and that Exhibit No. 2 was a copy of the original paper kept in the safe, and that the safe was taken from the factory to the residence of the deceased on James street in Rome. The witness Seeley testified that he took the paper out of the safe to copy it, and that he put the original back in the safe and locked up the safe; that the safe was removed to the residence of the deceased, and that the witness helped remove it, and that the papers were taken out immediately before the safe was removed, and the paper was among them, and the papers were all put back in the safe, and that the safe was put into a wagon and removed to Slingerland’s house; and then adds: This (Exhibit No. 2) is the copy of the paper I referred to and made. This paper is all in my handwriting and written by me as a copy of the original. The original of this paper had the signatures of Scott and Slingerland. The original was the same paper I had seen in New York and read; the original had seals opposite the names. I could not tell in whose writing the original paper was; it was not the writing of Slingerland or Scott. The original was the same one I had seen in New York and Rome. I did not know Armstrong’s handwriting, but it purported to be witnessed by him as copy appears.”

The issue in respect to whether the original paper existed executd between the parties was so important, and the testimony so conflicting in respect thereto, that we are not permitted to say that the exclusion of the testimony to which we have already referred was not injurious to the plaintiff. The principal fact has been found against him, as the referee says in his report, viz.: There was no contract entered into between George Scott, plaintiff in this action, and said Thomas B. Slingerland, deceased, as appears in the paper offered and received in evidence, marked Exhibit 2, and that the evidence fails to show that any cause of action stated in the complaint in this action existed in favor of the said plaintiff as against the said defendant.”

We are not authorized to say that such evidence would not have benefited the plaintiff had it been received. We have looked carefully through the evidence and found there many facts and circumstances, and considerable oral evidence, tending to support the conclusion reached by the referee, while, on the other hand, from the quotations we have made, as well as from the further evidence found in the appeal book, it is quite apparent that there is great strength in the evidence offered by the plaintiff tending to show the existence of the original contract and its execution by the parties, and that Exhibit 2 was a correct copy thereof. We omit to express any impressions formed upon considering the conflicting evidence, inasmuch as we are of the opinion that the issue of fact should go down to another trial. By reason of the errors which we have pointed out in the rulings we are of the opinion that a new trial should be granted.

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

Boardman and Follett, JJ., concurred.

J udgment reversed and new trial ordered before another referee, with costs to abide the event.


text:
    DENNIS BURNS, Respondent, v. HENRY WINCHELL, Appellant.

      Tenants in common of crops — what acts establish a conversion of the interest of one tenant by a co-tenant — when an owner is not prevented from maintaining an action for the conversion of his interest by the fact that a chattel mortgage given by him thereon is over-due.

    On June 1, 1882, the parties to this action entered into an agreement hy which the plaintiff Burns agreed to plant about five acres of tobacco on land of the defendant, and cut, hang and pack the same in boxes and furnish teams to draw the same away, in consideration of which he was to have one half of the tobacco, it being agreed that in case the plaintiff failed in doing these things he should forfeit all his interest in the tobacco. After the plaintiff had stripped and sorted the tobacco ready for market and locked it up in a building the defendant pried off the plaintiffs lock and put on another so that the plaintiff, on coming to the building with cases to put the tobacco in for the purpose of drawing it to market, could not get into the building. The defendant refused to let the plaintiff have the tobacco, or any part thereof, and stated that he had not done his work properly, and for the first time found fault with the manner in which the tobacco had been harvested and cured. lie refused to case or divide the tobacco, and denied that the plaintiff had any tobacco there.

      Reid, that the plaintiff and defendant were tenants in common of the tobacco, and that the facts stated were sufficient to establish a demand and refusal which rendered the defendant liable for a conversion of the plaintiff’s interest.
    That the fact that the plaintiff had, in December, 1883, executed a mortgage, due one day from date, upon his undivided one-half interest in the tobacco, did not prevent him from maintaining the action as it did not appear that the mortgagee had ever demanded the money or taken possession of the property.
    Appeal by the defendant from a judgment entered upon a verdict rendered in the County Court of Onondaga county, and also from an order denying a motion for anew trial made upon the judge’s minutes.
    Upon a former appeal to the General Term a new trial was granted, holding “ that plaintiff’s evidence should have been confined to the market value at the time of the conversion.

      Hoyt, Beach & Hine, for the appellant.

      Terry db Terry, for the respondeut.
   Hardin, P. J.:

On the first day of June, 18S2, the patties entered into an ágreement containing the following stipulations, viz : “ That the said Burns agrees to plant about five acres of tobacco on the land of said Henry Winchell, in the town of Camillus, Onondaga county ; said Burns is to do all the manual labor on said land, load all the manure and spread the same, and what hen manure he, Winchell, has got, and the manure of two backhouses, and mix the same with leached ashes, and put the compost in the tobacco hills. He, Burns, is to do all the work on said tobacco, cut and hang and sort and pack it in boxes, and furnish all the plants, and find one-half of the lath for hanging, and one-half of the boxes. Said Burns agrees to do this work in a good and workmanlike manner, and to do the same in season; when said Burns fails in doing the same he forfeits all he has done and it shall be lawful for said Winchell to go and take charge of the same. Said Winchell also agrees to furnish all the team work that is required on said tobacco lot, and draw the- tobacco away, and to furnish one-half of the lath and one-half of’ the' boxes. And in consideration of the faithful performance' of such labor' said Burns is to have one-half of said tobacco.” Undoubtedly under' the* agreement the1- parties became tenants in common of' the: crop' of tobacco. (Caswell v. Districh, 15 Wend., 379; Harris v. Frink, 49 N. Y., 24.) In the* spring of 1883, the- plaintiff stripped and sorted the tobacco ready for market and kept ifc locked upfin the building where he sorted it. About the 20th of June, 1883, the'plaintiff went to the building with his cases and put the tobacco in for the' purpose of drawing it to market. He then found the defendant- had pried off plaintiff’s lock from the door and put on another' so that the plaintiff could not get into the building, and the defendant refused to let the plaintiff have the tobacco or any part thereof, stating to the plaintiff that he had no tobacco there, and also stating to the plaintiff that he had not done his work propelly, and for the first time found fault with the manner in which the tobacco had been harvested and cured. Plaintiff testified, viz: “ The last time I went back there I asked Winchell for my half of the tobacco there. He said I had no tobacco there at all. He would not allow me to go in at all. I asked him to case the tobacco or divide it with me; he said I hadn’t no tobacco there at all. I said well, I will go and see whether I can get it or not ”

We think the evidence entirely sufficient to establish a demand and refusal, and that the conduct of the defendant was such that he rendered himself liable for conversion of plaintiff’s interest in the tobacco at the time of the demand and refusal. (Lobdell v. Stowell, 51 N. Y., 70.) The refusal of the defendant to- allow the- plaintiff, to obtain possession of the property may be regarded as- “ waiving the performance of any further acts ” by the plaintiff as tenant ins. common. (Fobes v. Shattuck, 22 Barb., 568.) In Stall v. Wilbur (77 N. Y., 158), Earl, J., uses language applicable to the question made in respect to the demand under consideration. He says, viz.:: “ As to such property, separable in respect to quantity and quality by weight or measure, each tenant 'in common may demand of his co-tenant having possession of the whole his share, and upon refusal or a conversion by such co-tenant may sue in his own name, without joining all the other co-tenants.” (Channon v. Lusk, 2 Lans., 211; Lobdell v. Stowell, 37 How., 88; S. C., 51 N. Y., 70.)

The doctrine just cited was followed in Thomas v. Williams (32 Hun, 260), where Smith, P. J., speaking for this court, said, viz.: “ The parties were owners in common of the grain. It has been held in this State that owners in common of grain or other personal property, in its nature separable in respect to quantity and quality by weight or measure (as the grain in question here was shown to be), may sever their portions of the common bulk at will; and where one of them, having the entire property in his possession, appropriates the whole to his own use, and.refuses, on reasonable demand, to let the other have his portion of it, he is liable for a conversion.” We hold the evidence upon the trial in the case before us was sufficient to warrant the jury in finding a demand and refusal, and that the defendant converted the whole of the plaintiff’s interest in the crop of tobacco.

It appeared upon the trial that the plaintiff, on the 4th day of December, 1882, executed to John C. Monroe a chattel mortgage to secure sixty-five dollars due “ in one day from date, with use,” upon “ the undivided one-half of five acres of tobacco, raised in 1882, which is now on the poles and in the barn on the premises now occupied by Henry Winchell, in the town of Camillus, and now remaining and being in his possession in said town.”

Because of the execution of that mortgage the defendant upon the trial insisted that the plaintiff had no title or interest in the tobacco at the time of the demand and refusal. It appeared in the evidence that the mortgagee had never demanded the money oh his mortgage, nor taken possession of the mortgaged property. Notwithstanding the execution of that mortgage by the plaintiff, he owned the equity of redemption in the property, and had such an interest in it as against the defendant that he had a perfect right to the possession thereof at the time of the demand and refusal. (Marsden v. Cornell, 62 N. Y., 215; Green v. Clarke, 12 id., 343.)

Giving the chattel mortgage to Monroe in no manner enhanced the defendant’s rights in the property, and defendant failed to connect himself with the title or interest of Monroe in the property,' except by a subsequent arrangement made after the demand and refusal, to the effect that when the property was sold the mortgage would be paid out of the interest of the plaintiff in the proceeds. Such payment appears to have been made, and the recovery had in this case is only for such sum as is equivalent to the proceeds of plaintiff’s half after paying therefrom the mortgage in question. Monroe had entered into an arrangement that he would wait for the pay on his mortgage until Burns sold the tobacco, and after that arrangement Burns had bestowed considerable labor upon the property covered by the mortgage, during the winter and in the spring, in stripping, sorting and resorting the tobacco. In effect, there was an understanding .between the plaintiff and the mortgagee that the mortgage should not be enforced until the tobacco was turned into money and the proceeds could be applied thereon. Under such circumstances we are of the opinion that the plaintiff had an interest in the property, and as against the defendant the right to the possession thereof, and that the defendant’s conversion was wrongful. (Bowen v. Fenner, 40 Barb., 383.)

It appears by the evidence in the case that the defendant sold the whole crop as his own, and in his answer and upon the trial he sought to assert a claim to the whole crop and insisted the plaintiff had forfeited his right to any part thereof under the contract. According to the evidence of Monroe the defendant never acquired any right to the property in virtue of the mortgage. He did not take an assignment of the mortgage. lie had notice before he sold the tobacco to Skinner that Monroe held the mortgage. All the parties acted upon the assumption that when the property was sold and turned into money that out of Burns’ half of the proceeds the mortgage should be paid. Such payment was made and, as before remarked, the verdict in this case is only equivalent to the balance of the proceeds.

In the course of the charge the trial judge submitted to the jury to find whether the plaintiff had failed to perform his duty as required by the agreement in respect to the tobacco, and whether the failure was such as was contemplated by the agreement under ■which the defendant would be warranted in taking possession of the tobacco in question. The verdict of the jury is adverse to the defendant on that question. The trial judge observed, viz.: “ It is a question of fact; it is a question in determining which you will have to review all of the evidence relating to the way this tobacco was cultivated and cured and handled down to that time. The defendant was protected by the agreement, by the insertion of the clause which allowed him, whenever there was a failure, to take possession of the property; and before you find that he had a right to take possession of the property, at the stage when it is said that he did take possession and convert it, you must find that Burns himself had failed in his duty.”

We think that the question was presented sufficiently favorable for the defendant to the jury. Their verdict is adverse to the defendant upon that question as well as upon all other questions of fact in the case. We see no error in the progress of the trial which should lead us to disturb the verdict.

The judgment and order should be affirmed, with costs.

Boardman and Eollett, JJ., concurred.

Judgment and order affirmed, writh costs.


text:
    CHARLES W. AVERY and Others, Respondents, v. ANTOINETTE WOODIN and Others, Appellants.

      Practice■ — -a party cannot appeal from a judgment entered upon Ms default— Code of Oiml Procedure, sec. 1294.
    In this action for partition the defendant, Antoinette Woodin, who had, by an attorney, appeared, but had not answered, appeared before the referee appointed to take proof of the rights, shares and interests of the several parties and report thereon, objected to certain requests for findings made by the plaintiffs’ counsel,, and thereafter appeared before the Special Term and was heard upon a motion to confirm the referee’s report, which was thereafter confirmed by an interlocutory judgment which directed a sale. After a sale had been made a final judgment confirming the sale was entered, notice of the motion being served on the defendants, who had appeared. From this judgment the defendant Antoinette, who did not appear at the hearing of the motion to confirm the referee’s report of sale, appealed.

      Held, that the appeal should be dismissed as the final judgment was entered upon the default of the defendant, within the meaning of that term as used in section 1394 of the Code of Civil Procedure.
    That a claim made by the appellant — that certain letters passing from the respondents’ attorney to the counsel for the appellant, with respect to what papers should be printed to constitute the appeal book, were sufficient to obvialevthe objection — was unsound, as the consent of the parties would not confer jurisdiction upon this court to hear an appeal.
    Motion, by tbe plaintiffs and respondents, to dismiss tbe appeal “upon the ground that said appeal is taken from a judgment rendered or made by default, and is unauthorized, and upon the further ground that no case and exceptions has been made and filed.”
    In September, 1884, this action was commenced to obtain the actual partition, or, if that could not be had, the sale of certain lands described in the plaintiff’s complaint. The complaint, after describing the premises sought to be partitioned, alleged, viz.: “ That the plaintiff, Charles W. Avery, has an estate of inheritance therein of an undivided four-elevenths interest in the fee thereof; that the plaintiffs, Charles Burghart and Richard Burghart, own, jointly, an undivided one-eleventh interest in the fee thereof. * * * That the defendant, Jacob Burghart, owns a similar estate therein of an undivided three-elevenths interest in the fee thereof. That the defendant, Antoinette Woodin, owns a similar estate therein of an undivided one-eleventh interest in the fee thereof.”
    No answer has ever been served by the appellant. On the 30th of May, 1885, an order was granted at the Onondaga Special Term, whereby a referee was appointed “ to take proof of the rights, shares and interests of the several parties in the property, of the several matters set forth in the complaint, and to ascertain and report the rights and interests of the several parties in the premises and an abstract of the conveyances by which the same are held.” By that order it appears that all the defendants were adults, except Thomas McMahon, Jr., and Mary Estella McMahon, who were infants, for whom a guardian ad litem was appointed. The order also required the referee to inquire and report whether the whole premises, or any lot or separate parcel thereof, was so circumstanced that an actual partition could not be made, and as to whether there were any liens, “ and also whether the undivided share or interest of any of the parties in the premises is subject to a general lien or incumbrance by judgment or otherwise,” etc. That order was made upon notice and upon a stipulation by the attorney for the defendants, said attorney having appeared for the present appellant, but having served no answer. On the 25th day of August, 1885, the referee made his report, in which he stated, viz.: “That having been attended by the attorneys for the several parties who appeared in the case, 1 proceeded to a hearing of the matters so referred. I further report that on such hearing I took proof of the several matters set forth in said complaint and find that the material facts therein alleged are true, and I further find and report that the following is an abstract of the conveyances by which the premises described in said complaint are held.”
    Further, “ that the premises described in said complaint are so circumstanced that an actual partition thereof cannot be made without a great prejudice to the owners thereof,” and in his report he stated the facts and reasons for such conclusions. It appears that the appellant was before the referee and objected to the referee’s “finding, as requested by the plaintiffs,” and aéks the referee to find otherwise. On the 31st of October, 1885, the report was presented to the Onondaga Special Term, notice thereof having been given to the defendants who had appeared, and after an argument by the respective parties, the court pronounced an interlocutory order of judgment, wherein it was declared viz : “ The plaintiff, Charles W. Avery, is seized of and entitled in fee to an undivided four-elevenths interest in said premises.” Also “the defendant, Antoinette Woodin, is seized of and entitled to an undivided one-eleventh interest in the fee thereof.”
    It was further adjudged that the premises be sold by a referee and that a report be made of the sale and that the proceeds be distributed as in said order directed. At a Special Term held in Onondaga county on the 27th of March, 1886, after a notice to the attorney for the defendants who had appeared, an application was heard for confirmation of the report of such sale and for final judgment. There was no appearance at such Special Term in behalf of the defendant, and judgment was granted confirming the sale, and the referee was directed “ to pay to the defendant, Antoinette Woodin, the sum of $143.31, being the amount of her share in the proceeds of said sale.” The interlocutory judgment was rendered January 28, 1886. The time to appeal therefrom expired March 30, 1886. No appeal was taken. Final judgment was taken by default, March 30, 1886, from which this appeal is taken with a notice of intention to review the interlocutory judgment.

      Avery & Merry, for the motion.

      Louis Marshall, opposed.
   Hardin, P. J.:

Section 522 of the Code of Civil Procedure provides “ each material allegation of the complaint, not controverted by the answer * * * must, for the purposes of the action, be taken as true.”

Section 1294 of the Code of Civil Procedure provides viz: “ A party aggrieved may appeal in a case prescribed in this chapter, except where the judgment or order of which he complains was made upon his default.”

In as much as no issue of fact was raised by the answer we think the complaint must be taken as true, in obedience to section 522, and we think, under section 1294, it must be held that the appellant was in default, and it was the duty of the Special Term to accept as true the allegations of the complaint which were admitted for the purposes of the action by the omission of the defendant to take issue in the modes prescribed by the Code for controverting the allegations of the complaint.

We think it has been settled by several adjudications that an appellant is not entitled to prosecute an appeal where he is in default. The interlocutory judgment follows the allegations of the complaint, and the final judgment carries forward the adjudications of the interlocutory judgment and completes the full adjudication of the rights of the parties. (Goldsmith v. Goldsmith, 11 Weekly Dig., 551.) In that case it was said, viz: Where the defendant appears and does not answer, but files exceptions to the referee’s report, and is heard on the application for judgment, no appeal lies from the judgment entered, the same being regarded as a judgment by default under section 1294 of the Code.” The same doctrine seems to be declared by the case of Flake v. Van Wagenen, in 54 New York, at page 21. It is insisted on behalf of the appellant that certain letters passing from the respondent’s attorneys to the counsel for the appellant with respect to what papers should be printed to constitute the appeal book are sufficient to obviate the objection •now made against the appeal. We think the position is unsound. Consent does not confer jurisdiction upon this court to hear an appeal. Our jurisdiction must be obtained by compliance with the pi’ovisions of law conferring appellate jurisdiction. Besides, we find in the letters of the respondent no clear intention to waive any legal rights, or to confer any power upon an appellate court to review the questions involved. We are of the. opinion the motion should be granted and appeal dismissed with costs.

Boardman and Eollett, JJ., concurred.

Motion granted, and appeal dismissed, with costs.


author: Boardman, J.

text:
    MARY MALANEY, Appellant, v. NANCY CRONIN and Others, Respondents.

      Action for partition — Code of Civil Procedure, sec. 1537 — when it may he maintained, as against a purchaser in good faith from a person in possession ■under a devise valid on its face hut in fact void.

    This action was brought by the plaintiff, as one of the heirs-at-law of Mary Malaney, deceased, who died seized of the premises described in the complaint, to cancel and declare void the will of the said Mary, by which she devised to the defendant Nancy, her daughter, the premises in question, and to cancel a deed of the said premises given by said Nancy to the defendant Pryor, and a mortgage given by Pryor to the defendant Williams, and to have the said premises partitioned or sold and the proceeds divided among the persons entitled thereto. Upon the trial of issues, settled in the action, the will was found to be void as having been procured by undue influence, imposition and fraud. Thereafter the complaint was dismissed upon the ground that the action could not be maintained, under section 1537 of the Code of Civil Procedure, the plaintiff being out of possession, and the person to whom an apparent devise had been made having conveyed the premises to one who purchased the same in good faith and without notice of any defect in the title of the devisee.

      Held, that the court erred in so holding.
    That, by the adoption of that section of the Code of Civil Procedure, the old rule, denying to a party partition of lands held adversely, was intentionally changed where such adverse holding and possession is under a devise valid on its face but in fact void, and that this purpose ought not to be, and could not be, thwarted by a transfer of the devisee’s apparent title to a party whose title and possession is no other or better than that of the devisee.
    Appeal from a judgment dismissing tbe complaint, entered in Oneida county, upon tbe decision of the justice before whom this action was tried.
    This action was brought by plaintiff as the daughter and heir of Mary Malaney, deceased, who died, seized, holding and in possession of the premises described in the complaint. The action is founded on section 1537 of the Code of Civil Procedure. The relief sought is to cancel and declare void the will of said Mary Malaney, deceased, whereby she devised to her daughter, Nancy Malaney (now defendant Nancy Cronin), the premises described in the complaint; also to cancel a deed of said premises, gi/en by said Nancy to the defendants Pryors, and also a mortgage of $1,700, given by said Pryors to defendant Elliot S. Williams, as executor, etc., of Mary Malaney, deceased; also a prayer for partition or sale of the said premises, and a division of the proceeds among the several parties entitled thereto, or for such other or further judgment or relief, or both, in the premises as shall seem equitable and just. The defense was that the said will was a valid one, and was the free act and deed of the testatrix. The case was brought on for trial at a Circuit Court held at TJtica, commencing on the 10th day of May, 1886. The court, at the commencement of the trial, directed issues to be settled and stated. Thereupon, the attorneys for the respective parties agreed upon and settled such issues, which were approved by the court and embraced in an order, which was duly entered. At the commencement of the trial, defendants moved to dismiss the complaint on the grounds that it appeared from the complaint that Nancy Cronin, the devisee under the will, had conveyed the premises therein described to the defendants Pryors, which was denied. The cause was then tried, and the jury rendered a verdict on said issues, finding that the said will was procured by undue influence, imposition and fraud; and also found that said will was procured and caused to be made by said defendant, Nancy Cronin (the devisee), in her favor, by putting the testatrix in fear of her life, or some severe corporal punishment or harsh and cruel treatment. Defendants moved for a new trial on the minutes, which was entertained, argued and denied. The cause, after having been duly placed on the calendar for a Special Term, held at Rome, was, upon defendants’ application, sent to an adjourned Special Term, held at Utica, where it was tried, and thereafter a decision was filed dismissing the complaint.
    The justice found, among other facts, that the defendants, Thomas J. and Harriet J. Pryor, about April 2, 1883, purchased and took a deed of the real property described in the complaint, without notice and in good faith, from defendant Nancy Cronin; that said Pryors purchased said property and took said deed, without notice of other claims, in good faith and for a fair price, and immediately entered into possession thereof under said deed, and since then have been in such possession of the property; that this action was commenced April 19, 1885, and when so commenced the defendants Pryors were in possession of said real property, holding same under their said deed, and claiming title thereto adversely to the other parties to this action; and also found, as matter of law, that this action of partition cannot be maintained under section 1537 of the Code of Civil Procedure, the plaintiff being out of possession, there having been an apparent devise of the property to another, but the devisee not being in possession under the devise.

      Edward Lewis, for the appellant.

      Williams & MeCabe, for the respondents.
   Boardman, J.

Two issues only were presented by the pleadings. First. Whether the devise of the lands, which are the subject of the action, to Nancy Cronin, defendant, was valid. Second. Whether the defendants, Prior, were purchasers from Nancy Cronin, the devisee of such land, in good faith, for value and without notice of the invalidity of the devise. The jury found the devise to be void and that Prior was a bona fide purchaser and in the possession of the lands under a deed good in form given by Nancy Cronin. On these facts, conceded to be true for the purposes of the present appeal, the plaintiff claimed a judgment for partition of the lands between herself, as one of the heirs-at-law of Mary Malaney, deceased, and the other heirs-at-law. This claim was resisted by the defend- * an'ts, upon the sole ground that partition cannot be had under section 1537 of the Code, where the apparent devisee, Nancy Cronin, is not in possession, but the Pryors are in possession, holding adversely as Iona fide purchasers from said Nancy. The learned judge, with some hesitation, sustained the defendants’ claim and dismissed the complaint. The statute under which this action was brought is comparatively new and no authority is cited covering the precise point in controversy. Chapter 238 of the Laws of 1853, first gave such a right of action, and that was repealed in 1880 when section 1537 was incorporated in the Code in its stead. Under the act of 1853 it was held by the Court of Appeals, Judge Miller speaking ,for the court in Hewlett v. Wood (62 N. Y., 78), said that “an action of partition can be maintained to determine the validity of any devise or will of real estate notwithstanding an adverse possession. The action is in the nature somewhat of an ejectment; but issues of fact are to be made up and tried by a jury, and when the legal title is established, a partition or a sale may be granted upon application to the court, as the relief demanded after the main subject of the controversy has been determined by a jury.” It does not appear whether that action was brought against the apparent devisee or his grantee. In the present ease the Priors took the title of Nancy Cronin as heir-at-law, although her title as devisee was worthless. The Priors were, therefore, tenants in common with the plaintiff, the moment the devise was declared void. If the devise was void they could acquire no title under it. To sustain their entire title to the lands under Nancy Cronin’s deed they must sustain the validity of the devise against the attack of the heir-at-law. The probate of the will is not conclusive. (Matter of Gouraud, 95 N. Y., 256.) "When the will or devise fails their title under it fails notwithstanding their good faith. So when the devise is overthrown the Priors’ title under it is gone and they remain grantees of the share of Nancy Cronin as one of the heirs-at-law. Such possession, of course, is not adverse to the plaintiff. The grantee stands in the jfiace of the devisee and can have no greater rights. There can be no good reason why the heir may not have the same relief against the grantee as against the devisee. The intent of the law was to give a direct and prompt mode of determining the rights of the parties. Of what use, then, to require an action of ejectment to establish title and afterwards an action of partition to ascertain the rights of the parties and make division ? That seems to us precisely what the legislature intended to obviate by this new form of action. If Nancy ■Cronin had not been one of the heirs the position and claim of Prior might possibly have had more force. By the section 1537 whether in or out of possession, the action lies, notwithstanding an .apparent devise thereof to another by the decedent and possession under such devise, that seems to authorize in a single action the determination of the validity of the devise, and if that be found, void a partition of the premises among those entitled to share therein. Nancy Cronin was a necessary party to test the devise Prior was a necessary party both as to the devise and partition. 'We conclude that the old rule denying to a party partition of lands held adversely was intentionally changed where such adverse holding and possession was under a devise valid on its face but in fact void. The purpose of the law, if as stated, cannot and ought not to be thwarted by a -transfer of the devisee’s apparent title to a party whose title and possession is no other or better than the devisee’s. For these reasons we think the judgment should be reversed. No appeal has been taken from the order denying a new trial upon the issues settled and passed upon by the jury, and hence the verdict upon those issues must stand. The case must then go back to the .Special Term with directions to take such further action as is required by law and the practice of the court, preliminary to a final judgment of partition among the owners of the premises in ■controversy. If in the setting aside the deed from Nancy Malaney {now Cronin) to Prior, and the mortgage from the Priors to the ■executor,, any equities are involved requiring protection, the court at Special Term will provide for the same.

The judgment, is reversed and the proceedings are sent back to the Special Term for such further action as may be necessary in ■order to effect partition or sale of the premises. The appellant shall have costs of this appeal against the respondents.

HabdiN, P. J., and Follett, J., concurred.

.Judment reversed and proceedings remitted to the Special Term with instructions to effectuate a partition.

Costs allowed to appellant against respondents.


author: Boardman, J.:

text:
    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY to Acquire a Crossing of the NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY Over Their Railroad in the Town of Chemung.

      Report of commissioners fixing terms upon which one railroad may'cross the tracks ' of anothei' — when a company availing itself of one part of an order cannot appeal from another part imposing conditions upon it — when the question will be held to be res adjudicata after affirmance of the report.

    In proceedings, instituted in 1881 by the Lackawanna and Western Railway Company, to acquire a crossing over the New York, Lake Erie and Western Railroad Company at Chemung, the commissioners made a report fixing and determining the mode and place of such crossing, and requiring the Lackawanna company, as one of the terms and conditions upon which the crossing was granted, to construct certain bridging on its route to the west of Chemung river, at a considerable distance from the place of said crossing and from the Erie railroad, such provision being made for the purpose of providing sufficient waterways for the Chemung river, so as to avoid injury -or destruction to the embankments, tracks and road-bed of the Erie railroad. This report having been affirmed by the General Term and the Court of Appeals on appeals taken to these courts by the Erie road, the Lackawanna Railroad Company paid the compensation directed by the report, built its road across the river and over the Erie railroad and ran its trains thereon, but neglected to build the bridging required by the report and order confirming it. After the Ene Railroad Corn; pany had commenced an ^action against the Lackawanna company to compel it to specifically perform its contract, the latter company appealed from those portions of the order which required it to build the bridging.

      Reid, that the appeal should be dismissed.

      It seems, that the appellant was prevented from taking such an appeal by the fact that the order was entered upon its own motion and for its own benefit, and that it had availed itself of such order and had built its road and was running its trains by the authority of the order.
    That the report and order prescribing the terms and conditions of the crossing constituted a complete disposition of the whole controversy, giving benefits to the Lackawanna, which they were enjoying, and providing adequate and necessary protection for the Erie, and that such a report cannot be appealed from in fragments so .that the benefits may be retained and the protection be withdrawn.
    That the order, as a whole, was res adgudicata in this court, the same questions having been already argued and decided therein. i

      That if it were not res adjudicóla in this court, and the commissioners had no power or authority to insert this requirement in their report, the Lackawanna company could make that objection by an answer and upon the trial of the action for specific performance.
    Appeal from parts of a report of commissioners, fixing and determining the points and manner of the crossing of the New York, Lake Erie and Western Railroad Company, in the town of Chemung, by the petitioner’s railroad, and from the order confirming the same.

      J. McGuire, for the New York, Lackawanna and Western Railway Company, appellant.

      D. O. Robinson, for the New York, Lake Erie and Western Railroad Company, respondent.
   Boardman, J.:

In 1881 the Lackawana company instituted proceedings to acquire a crossing over the Erie railroad, at Chemung. Commissioners were duly appointed. A great mass of testimony was taken and a report made, fixing and determining the mode and place of such crossing as a part of the terms and conditions of granting such crossing. The Lackawanna company were required to construct certain bridging on its route, to the west of Chemung river, at a considerable distance from the place of said crossing and from the Erie-railroad. Such provisions were made for the purpose of jwoviding sufficient water-ways for the Chemung river, so as to avoid injury or destruction to the embankments, tracks and road bed of the Erie railroad. Such report was filed on the 31st day of October, 1881, and on the 9th day of November, 1881, on motion of the Lackawanna Railroad Company, the report and decision of the commissioners was duly, in all things, confirmed and the order entered. The Erie company appealed from said order of confirmation to the General Term of the Supreme Court. The appeal was brought to a hearing, and in May, 1882, the report and order of confirmation was affirmed and the order duly entered and notice of such entry given by the Lackawanna company to the Erie company, the former company soon after paying to the latter the compensation directed to be paid by the report and order. On a further appeal to the Court of Appeals, by tbe Erie company, tbe report and order were affirmed or tbe appeal dismissed. Meanwhile, tbe Lackawanna built its road across the Oliemung river and over the Erie railroad, and ivas running its road, but neglected to do tbe bridging required by said report and order. Thereupon, tbe Erie Railroad Company, in September, 1884, commenced an action in equity in tbe Supreme Court, which, is now pending, against the Lackawanna company to compel it to perform the terms and conditions of said report and order relating to bridging and waterways for the protection of the Erie company’s roadway. In October, thereafter, the Lackawanna company took this appeal from those portions of said report and order so made and confirmed at its instance, and on its motion, and so sought to be enforced by the Erie company as aforesaid. A motion is now made by the Erie company to dismiss said appeal on several grounds, which will be discussed so far as may be necessary in deciding this motion.

We are not disposed to pass upon the right of the Lackawanna company to appeal from the report and order more than twenty days after the order of confirmation was made, and as seems to be required by section 18, chapter 140, Laws of 1850, But we very much doubt whether an appeal will lie from an order entered upon the party’s own motion and for its own benefit. Especially does that seem unreasonable when the appellant avails itself of such order and has built its road and is running its trains by its authority. We are inclined to think such an appeal will not and ought not to lie. But there is a stronger reason why this appeal should not stand. The report and order prescribing the terms and conditions of the crossing constitute a complete disposition of the whole controversy, giving benefits to the Lackawanna, which they are enj oying, and providing adequate and necessary protection for the Erie. It ought not to be possible that such a report can be appealed from in fragments so that the benefits may be retained and the protection be withdrawn. Each part of the report is dependent upon the other parts, and the report of the commissioners would be very different if a part only was allowed to stand. As well take away the keystone of ian arch, when the whole structure must fall. Nor is it possible that justice would permit the reversal of the parts- of the order appealed from, leaving the others to stand. ■

Again, tlie order, as a whole, is res adjudícala in this court. The same questions have been argued and decided. In hostility to the Erie and at the solicitation of the Lackawanna, we have held the report and order to be just and proper. It is true, the power bf the commissioners to make certain conditions was not directly passed upon, but we have no doubt of its existence. (Matter of Lockport and Buffalo R. R. Co., 19 Hun, 38.) Such power seems to be a necessary incident to the duty of providing for a crossing. However, if the question is not res adjudicata in this court, and if the commissioners had no power or authority to make the requirements inserted in their report and confirmed by the order, the Lackawanna company can make such objections by answer and upon trial in-the action for a specific performance.

We think the appeal should be dismissed, with costs.

Hardin, P. J., concurred; Eollett, J., not sitting.

Appeal dismissed, with costs.