author: Bbadlby, J.: Corlett, J.

text:
    WILLIAM CRANSTON, Appellant and Respondent, v. WILLIAM F. WHEELER, JOHN E. DUSENBURY, EDGAR G. DUSENBURY and WILLIAM A. DUSENBURY, Appellants and Respondents, Impleaded with HIRAM B. BURDICK and Others.

      Contract for the sale of land — effect of an agreement by the purchaser not to assign the contract without the vendor’s consent — effect of the acceptance by the vendor of a surrender by the owner of an undivided interest in the land of hzs interest therein — when specific performance should be decreed.

    September 18, 1880, tlie defendants, Wheeler and the Dusenhurys, entered into an informal written agreement with the' defendant Burdick, by which they agreed to sell to him 272 acres of land at six dollars per acre, to be paid in annual payments of $100 and interest. At the end of this agreement were the following words:l> A more complete contract to be hereafter executed.” • The plaintiff advanced $100 to be paid upon the contract, in pursuance of an agreement made between him and Burdick, by which the latter agreed to sell and convey to him one-half of all his right, title and interest in the said land. On December 4, 1880, Burdick executed a written instrument, selling and conveying an undivided one-half of his interest in the said land to the plaintiff, which provided that each party should pay one-half of the purchase-money, and that, if either should fail so to do, the other party should have the right to make the payment, and have the whole of said contract. In March, 1881, Wheeler and the Dusenburys entered into a formal contract with Burdick, dated September 18, 1880, for the sale of the said land, which contained, among others, the following provisions : “The said party of the second part (Burdick) also agrees not to assign this agreement without the consent of the party of the first part.’' Burdick thereafter indorsed upon this contract an assignment of one-half of his interest therein to the plaintiff.
    In August, 1881, Wheeler, the Dusenburys and Burdick, with actual knowledge of the rights of the plaintiff in the land, and with intent to defraud him and deprive him of his interest and rights therein, and without his knowledge or consent, . entered into an agreement by which Burdick, delivered to the other parties a written instrument, canceling and surrendering to them the contract, and all his interest under it, and received from them a deed of 118 acres of the land. The 118 acres were conveyed to Burdick’s brother, by whom they were conveyed to Burdick’s wife.
    The plaintiff having made a tender of the payments, as they came due, and kept the same good, brought this action, claiming to be entitled to a conveyance of the whole tract of 272 acres, and prays that the defendants be compelled to-specifically perform their contract

      Held, that as the plaintiff took the assignment of one-half of Burdick’s interest after the execution of the informal contract, the statement therein contained, that a more complete contract was to be executed, rendered the interest so acquired by him subject to any stipulation which might be inserted in the completed contract, which was within the contemplation of the^parties when the original agreement was made, unless it should appear to have been inserted with the intent to defraud him.
    That as no such intent was shown in this case, the agreement that the contract should not be assigned “without the consent of the party of the first part,” was binding upon the plaintiff.
    That as the agreement not to assign was in the form of a covenant, and as there was nothing to show that it was intended to operate as a condition, compliance with which should be a prerequisite to the exaction of a conveyance, its insertion in the contract did not prevent the plaintiff from becoming, by virtue of the transfer from Burdick, the equitable owner of an undivided one-half of the land.
    That by the -surrender of Burdick’s interest in the contract to "Wheeler and the Dusenburys, the latter acquired his equitable title to an undivided one-half of the premises, which merged in the legal title still held by them.
    That the surrender by Burdick of his interest under the contract could not be treated as a failure on his part to comply therewith, so as to authorize the plaintiff to make the necessary payments and claim a performance of the whole contract.
    That upon paying into court, the amounts tendered by the plaintiff he was entitled to a decree for the conveyance to him of the undivided one-half of the land jointly held by Wheeler and the Dusenburys, and of the undivided one-half of the 118 acres held by Burdick’s wife. (Corlett, J., dissenting, holding that no decree should he made in the nature of a decree for specific performance, hut that if any such decree were made the plaintiff was entitled to the full benefit of the entire contract and had the right to treat Burdick’s interest in it as extinguished by his fraudulent conduct.)
    Appeal by both plaintiff and defendants from a judgment, entered on the decision of tbe Erie Special Term.
    The action was brought to procure an adjudication establishing the alleged right of the plaintiff to pay for and take title to certain lands under a contract of purchase and sale. The case comes here upon the judgment-roll only, and the facts found by the trial court were: That on the 18th September, 1880, the defendants Wheeler and the Dusenburys owned 272 acres of land situated in Cattaraugus county, and made to the defendant Hiram B. Bur-dick an informal agreement to sell it to him for six dollars per acre, payable in annual payments of $100 and interest, and to put the agreement in more complete form thereafter. (This agreement will be found in full in the following opinion of Corlett, J.) At the time the purchase was made by Burdick there was an understanding between him and the plaintiff that the latter should have from him an equal undivided half interest in the purchase and property and advance the $100 for the first payment. The plaintiff advanced that amount and it was paid at the time the agreement was made, and pursuant to such arrangement Burdick, on the 4th December, 1880, by written agreement, sold to the plaintiff one-half of his interest in the premises, and it was thereby agreed that each should pay one-half the purchase-money. And it was further provided, that if either of them should fail to make one-half the payments, “ the other party shall have the right to make the payment and have the whole of said contract.” That about the 1st of March, 1881, the defendants Wheeler and Dusenburys entered into a formal contract under date of September, 1880, with Bur-dick, whereby they agreed to sell the land to him on the terms before mentioned, and on payment of the purchase-money to make and deliver to him a warranty deed. This contract contained this provision : “ The said party of the second part (Bur-dick) also agrees not to assign this agreement without the consent of the party of the first part.” (This contract will be found in full in tbe following opinion of Coelett, J.) Burdick, by assignment, indorsed upon this contract assigned one-half of Ins interest in it to the plaintiff. In August, 1881, Hiram B. Burdick, Wheeler and the Dusenburys, with intent to defraud the plaintiff and deprive him of his interest and rights in the said real estate and contract respectively, and with actual knowledge of the rights of the plaintiff in the premises, and without his knowledge or consent, entered into an agreement that Burdick should execute and deliver to Wheeler and the Dusenburys an instrument in writing canceling and surrendering to them the contract, and all his interest under it; that they should execute and deliver to him a deed conveying to him 118 acres of the land. This was done. Shortly thereafter Hiram conveyed to his brother defendant, Wayne S. Bur-dick, and he conveyed to Hiram’s wife, the defendant Kate Burdick, this 118 acres; all of which was done with knowledge of the rights of the plaintiff and with the intent to defraud him. The plaintiff tendered the payments as they became due unon the contract to Wheeler and the Dusenburys, which they declined to receive, and the moneys so tendered are preserved for them.
    As conclusions of law, the court determined that the surrender of the contract by Burdick to Wheeler and the Dusenburys, and the deeds to him, his brother and wife, were respectively fraudulent and void as against the plaintiff, and did not affect his rights and interests under the contract of September 18, 1880. That by the assignment of it to him his right to an undivided half interest was fixed, and that the covenant of Burdick not to assign without the consent of the vendors, did not operate to affect his interest acquired by the previous assignment, that the release by Burdick to Wheeler and the Dusenburys, and the conveyance to him were binding as between those parties, and operated as a settlement between them and as a payment by him. to them, so far as related to his interest, and that the plaintiff is entitled to judgment declaring the transaction between them void, and that he has the interest in the contract so assigned to him and on payment will be entitled to a conveyance of such interest. The several parties respectively took exceptions to the portions of the conclusions of law adverse to them, and judgment being perfected they respectively appealed.

      Hamilton Ward, for the plaintiff, appellant and respondent.

      I). H. Bolles, for the defendants Wheeler and the Dusenburys, -appellants and respondents.
   Bbadlby, J.:

The questions presented are somewhat novel and may not be -entirely free from difficulty. As between Burdick, the vendee in the contract, and the plaintiff, the latter took, by the assignment to him, an equal undivided half of the interest afforded by the contract in the land, with the right to perfect title to it in the manner .agreed upon. He had the equitable title to that extent, unless his .right to thus acquire it was denied to him by the non-assignable provision of the contract. And that question could be raised only by Wheeler and the Dusenburys. It is upon this clause of the contract that the contention of the defendants’ counsel rests. The fact that the transfer of the one-half interest in the premises was made by Bur-dick after.the first informal memorandum of agreement was made, ■containing no such clause, does not relieve the plaintiff from the force and legal effect of any provision in the-subsequent formal contract of sale. The provision in the 'former, to the effect that a more complete contract was to*be thereafter executed, will be- deemed to have brought any stipulations in the latter within the contemplation of the parties when the original agreement was made, unless it should appear that a particular provision was inserted in it with the intent to defraud the plaintiff and defeat his rights under such previous transfer. No such purpose is found. The plaintiff, therefore, must stand upon the contract as it is, and his rights as against the vendors must be deemed dependent upon and subject to its terms. Our attention is not called to any authority, text or judicial, as to the effect of such a non-assignable provision in an execu-tory contract for the sale of land.

By this contract the equitable title passed to the vendee and-there was no power reserved in the .vendor to defeat the right of the former to perfect legal title to the property. That depended wholly on the performance on the part of the vendee. And the vendors had no legal right to anything more than such performance, the failure of which, and that only, would give to them the right of restoration of the title. It is a stipulation or condition consistent with the rights of parties to a contract which may be operative and effectual. In ease of a grant without a reversionary interest retained by the grantor in the land a provision in terms restraining alienation is void. (De Peyster v. Michael, 6 N. Y., 467, 506, 508.) And the fact that a right of re-entry of the grantor may arise from default in payment of rent in case of a lease in fee, does not aid in support of such condition when that right of the grantor or his assigns, will exist only in action and is not founded upon any present interest in the land. {Hid.) At the time of the execution and delivery of the contract Burdick became in equity the owner of the premises, and the legal title was held by his vendors as trustees and as security for the payment of the purchase-money of which the vendee was the trustee, and his interest was in realty and inheritable, and that of the vendors personal estate. This conversion of relation to the property, produced by the contract, may be entitled to some consideration in the construction and effect of the clause in question. The vendors had the right to-impose any conditions precedent to the right of the vendee to take-the legal title which were not repugnant to the rights given by the contract in the land, or the covenant to convey, by way of qualification of estate or of rights appurtenant to the property to be observed in the conveyance to be made.. The covenant or condition not to assign the contract is not a condition or stipulation upon which the right of conveyance was-made to depend, the payment of the purchase-money was all that was required by this contract to give the right to the legal title, and require the conveyance. And it is clear that after the full payment of the purchase-money the vendors could not successfully resist the right of an assignee of the contract to a conveyance. They could then have no interest in the condition or covenant not to assign, to give it any support or validity. It would be repugnant to the right, which as of that time is given by the contract, and nugatory.

In the view taken of this case it is unnecessary to determine whether such a clause may have any and what effect' intermediate the execution of the contract and its performance on the part of the vendee. It did not prevent the transfer by the latter of an interest in the land to the plaintiff, and he became the owner in equity of tbe undivided lialf of it. The insertion in leases of covenants and ■conditions of that character is common and well recognized, but being in restraint of alienation are strictly construed. (Jackson v. Silvernail, 15 Johns., 278; Jackson v. Harrison, 17 id., 66; Lynde v. Hough, 27 Barb., 415; Crusoe v. Bugby, 3 Wilson, 234; Church v. Brown, 15 Ves., 258; Field v. Mills, 33 N. J. L. R. [4 Vroom], 254.)

Within the rule of construction as applied to leases the provision, ■even if it were a condition not to assign the contract, would not be •construed as a denial of the vendee’s right to sell his interest in the land, which would take with it the right to its protection under the contract. Nor would the assignment of a specified interest in it, less than the whole, come within the terms of the restrictive clause.

In Crusoe v. Bugby a covenant not to assign a lease was held not to interrupt the right of the lessee to sub-let by lease for part of the term; and the other cases before cited held the same and vice versa. The provision referred to in the contract is not a condition but a covenant on the part of the vendee only. It has the form of a covenant, and there is nothing in the contract itself, nor does anything appear, which can give to it the purpose or effect of a condition. It is in no sense an essential element in relation to the performance of the contract, but merely collateral to it. The plaintiff took an interest in the land under the contract by the transfer made to him by Burdick on 4th December, 1880, prior to the execution of the formal agreement, and there seems to be nothing in the way of giving effect as against the vendors to the assignment to the plaintiff of the one-half interest in the latter contract. It follows that his rights were not divested or defeated by the transaction between the vendors and vendee and^ the subsequent conveyances of the 118 acres through Burdick’s brother to his wife.

The remaining question is: What relation was produced by that transaction of the parties to it, to each other, and to the plaintiff, and what are their rights in respect to the premises ? The motives of the vendors and vendee have ho particular importance as relates to the plaintiff, and only as affects their rights to affirmative relief against each other.

The vendors had the right, by arrangement with Burdick, to take his interest, or, what amounts to the same thing, extinguish it, in the contract and in the premises, and convey their legal title to-him in any portion of the land, although they could not disturb-any existing rights of the plaintiff.

The vendors in the contract took the interest of Burdick, and paid him for it by the conveyance to him of the 118 acres. By that arrangement and its execution, Wheeler and the "Dusenburys, as-between them and Burdick and as to the plaintiff, must be deemed to have dischai’ged Burdick from the stipulations of the contract. They have taken the equitable title to the undivided half of that, portion of the premises not conveyed to him, and thus it is merged in the legal title held by them, and the equitable title to the undivided half of the whole remains in the plaintiff.

The consequence of having so discharged Burdick from liability to-pay one-half the purchase-money, is that the vendors may be treated as having the beneficial interest, to that extent, of the vendee in the contract united with the legal title in them, and thereby assuming such relation to the plaintiff in respect to the contract that the latter is entitled to pay to them one-half the unpaid purchase-money, .and, on such performance, to take a conveyance from them of half of the portion which they hold, and from the party holding under them a like share of the 118 acres. And for that purpose his relative-situation in practical effect is no different than it would have been if he had been a co-vendee with Burdick in the contract- The extinguishment-' by agreement between the vendor and the latter of his interest would not in such case affect that of the plaintiff. They have voluntarily discharged their vendee in the contract from liability to pay as part of the consideration of its relinquishment, to them. And it is not necessary to inquire whether they have the personal liability of the plaintiff. The vendors, by the transaction, have neither reduced his interest or increased his liability to-pay, but have reduced their liability to convey to one-half of that part retained by them of the premises. And the contract has in practical effect become one to sell and convey that to the plaintiff. There is nothing in the way of specific performance in behalf of the plaintiff, on performance by him. The land is charged with his interest under the contract, and the vendors or any persons holding the legal title under them may by force of it be required, on his performance, to make the conveyance. The contention on the part of the plaintiff that Burdick has so failed to make payment of the portion of the purchase-money which he undertook to pay, as to permit the plaintiff to pay the whole and take title to the entire premises, is not supported. Burdick is not in the situation of default in that respect, nor has he paid one-half the purchase money. He has disposed of his interest in the contract, or in behalf of his vendors has consented to the extinguishment of such interest for a consideration, which is the legal title to 118 acres, and the equitable title to one-half of it. His creditors have taken from him that liability to pay and the consideration on which it rested, which they were at liberty to do. The plaintiff by that is denied no legal right. He had none requiring an opportunity of Burdick to make default.

This view protects the rights of the plaintiff and preserves those of the other parties in the position they have voluntarily assumed. It may be that the latter have not accomplished what they designed. The law will not permit the attempted cancellation of the contract in fraud of the plaintiff to be effectual to his prejudice. While the fraudulent purpose may be entitled to consideration as characterizing the transaction between the vendors and vendee, and the several conveyances of the 118 acres so as not to vest title in a dona fide purchaser, the i-ights of the plaintiff in this action and to relief are not necessarily founded in such fraudulent intent on the part of the original parties to the contract, but in his legal rights derived from the transfer to him. They alone, in view of the facts, support his remedy and entitle him to the relief given by the conclusion of the trial court.

The defendants Wheeler and the Husenburys are entitled to the moneys so tendered by the plaintiff as payment of purchase-money, and he should be required to pay it into court to the credit of this action, and the judgment should be so modified as to direct him to do so.

The judgment should be affirmed, without costs of this appeal to any party.

BARKER, J., concurred; Haight, J., not sitting.

Corlett, J.

(dissenting):

On the 18th day of September, 1880, the defendants William F. Wheeler, John E. Dusenbury, William A. Dusenbury and Edgar A. Dusenbury were tbe owners of 272 acres of land in lot twenty-two in the town of Genesee, Allegany county. On that day the defendants last-named, by the name of William F. Wheeler & Co., executed an instrument in writing to Hiram B. Burdick, as follows:

“ Received of Hiram B. Burdick, one hundred dollars, in part payment of all lands owned by us in the town of Genesee, county of Allegany, and State of New York, being the whole of said lot, except 75 acres sold to Matthew Green, and being 272 acres more or less for six dollars per acre, to be paid in annual payments of one hundred dollars each, with interest.
“A more complete contract to be hereafter executed.
“WILLIAM F. WHEELER & GO.”
“ Dated September 18, 1880.”

This was delivered to Burdick on the date of its execution.

On the same day the plaintiff furnished Burdick $100 to be used by him in making the first payment on the contract, which he did.

This money was advanced by the plaintiff in pursuance of a verbal agreement, that when Burdick obtained the contract he should execute and deliver to him the following instrument, which was executed and delivered accordingly:

“Little GeNesee, December 4, 1.880.
“ In consideration of one hundred dollars in cash paid to me, the undersigned, on the 18th day of September, 1880, by William Cranston, of the town of Genesee, county of Allegany and State of New York, I, the undersigned Hiram B. Burdick, do hereby sell and convey one-half of all my right, title and interest to a certain piece of land situate on lot twenty-two in the town of Genesee, county of Allegany and State of New York, containing two hundred and seventy-two aeres, be the same more or less.
“ The one-half interest of the same hereby conveyed being one hundred and thirty-six acres, undivided one-half interest of the whole to William Cranston above mentioned, to his heirs or assigns, and I the undersigned do hereby agree, when William F- Wheeler & Co. shall make me a complete contract, which they have agreed to do, that 1 will duly assign a one-half interest in the contract to William Crans-ton, and I, the undersigned Hiram B. Burdick, do agree to make the whole of the next payment due on said contract, which will be due September 18,1881, when it shall be due, and if either party shall fail to make one-half of the following payments in said contract when ■due from William F. Wheeler & Co., then the other party shall have the right to make the payments, and have the whole of said contract; nrice of said land to be six dollars per acre in said contract.
“HIRAM B. BURDICK.
“Witness — LeoNaed Willetts.”

Afterwards, and on or about the 1st day of March, 1881, the ■said Wheeler and the Dusenburys executed to the defendant Burdick a contract in writing, ante-dated, as follows :

“ Article of agreement made this 18th day of September, 1880, between William F. Wheeler, John E. Dusenbury, William A. and Edgar G. Dusenbury, all of the town of Portville, county ■of Cattaraugus, and State of New York, of the first part, and Hiram B. Burdick, of Genesee, Allegany county, and State aforesaid, of the second part, in manner following:
“ The said parties of the first part, in consideration of sixteen hundred and thirty-two dollars to them duly paid, hereby agree to sell unto the said party of the second part all of lot (22) twenty-two, town one, range two of the Holland Land Company survey, situate in the town of Genesee, Allegany county, and State of New York, containing 347 acres more or less, excepting and reserving seventy-five acres in the south-east corner of said lot, formerly contracted to Matthew Green for the sum of sixteen hundred and thirty-two dollars, which the said party of the second part agrees to pay to the party of the first part as follows: One hundred dollars on the execution of this agreement, the receipt of which is hereby acknowledged, and the remainder to be paid, one hundred dollars in each year thereafter on the eighteenth day of September, together with annual interest on all sums remaining due at the time •of each payment. Said party of the second part also agrees to pay all taxes and assessments that shall be taxed or assessed on said premises from the date hereof until said sum shall be fully paid as aforesaid.
And this said party of the first part on receiving such payment at the time and in the manner above mentioned, shall, at their own proper cost and expense, execute and deliver to the said party of the second part, or to his assigns, a good and sufficient deed of the above described premises, and the party of the second part also agree not to assign this agreement without the consent of the party of the first part, and it is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns, of the respective party.
“In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.
(Signed) “ WM. F. WHEELER. [l. s.]
“ JOHN E. DUSENBURY. [n. s.]
“ YS. A. DUSENBURY. [l. s.]
“ EDGAR G. DUSENBURY. [l. s.]
“ H. B. BURDICK.” [l. s.]

On the 8th day of March, 1881, Burdick executed and delivered to the plaintiff an assignment in writing on the back of said contract as follows:

“ For and in the valuable considei'ation of one hundred in hand paid, I hereby assign one-half of all my right, title and interest in the within contract to William Cranston, of Genesee, N. Y.
“ In witness whereof, I have hereunto set my hand and seal the 8th day of March, 1881.
“ II. B. BURDICK.” [l. b.]

About the 10th day of August, 1881, the defendants combined and conspired together to cheat and defraud the plaintiff out of his interest in said contracts and land, they well knowing what his interests were. The mode of procedure agreed upon was that Burdick should execute a writing to Wheeler and the Dusenburys canceling and surrendering the land contract and all the interests under it;, that Wheeler, the Dusenburys and their wives should deed to Bur-dick.118 acres of said land, all of which was done. Hiram B. Burdick then through his brother, the defendant Wayne S. Burdick, caused said 118 acres to be deeded to his wife Kate Burdick, she having full knowledge of the fraud and being a party to it. Thereupon the defendants treated the plaintiff’s rights as extinguished.

The plaintiff tendered $200 for the payment and interest which fell due on the 18th of September, 1881, and a like amount for the payment which fell due on the 18th day of September, 1882. The money was refused, tbe tender has been kept good, Burdick has-' paid jiothing on the contract, and the plaintiff is treated by all the defendants as having no rights on the premises.

The above facts were found by the trial justice, and no claim is made on either side that the findings are not warranted by the evidence. The case comes before this court on the judgment-roll alone. The Special Term found among others the following-results :

“■ For conclusions of law, I find that the surrender of the contract, by the defendant Hiram B. Burdick, and the deed of Wheeler and the Dusenburys to him, and the deeds to Wayne and Kate Burdick,, respectively, are fraudulent and void, and of no effect as against the plaintiff, and do not in any manner affect his rights and interests under the contract; that the agreement of September 18,1880 (the first agreement- hereinbefore set forth), is a valid and binding agreement and in full force; that the right of the plaintiff' Cranston became fixed by the assignment made to him of an undivided' half interest under date of December 4, 1880 j that the contract subsequently executed, containing the clause or covenant that Burdick should not assign without consent, and did not operate to effect the interests and rights of Cranston, previously assigned; that whilst the conveyance and release were fraudulent and void as to the plaintiff, they are binding and valid as between the parties thereto; that the conveyance by Wheeler and the Dusenburys, and the release of the contract by Burdick to them, operated as a settlement as between them- and the payment in full as to Burdick’s interest in the contract; that by reason of said settlement he is not in default in making the payment upon the contract falling due September 18, 1881; that the plaintiff is entitled to a judgment, that the conveyance and release be adjudged fraudulent and void as far as he is concerned, and that it be further adjudged and determined that he has a contract for one undivided half of the premises described in the complaint, and will be entitled to a conveyance of such interest on paying half of the annual payments provided for in the contract.”

Both parties excepted to certain portions of the above findings. The supplemental complaint- alleges that the formal contract, executed on the 1st day of March, 1881, was to take the place of 'the memorandum of the 18th day of September, 1880, and was dated back to that day. That memorandum was not signed by Burdick.

Before it was signed by Wheeler & Oo., a clause was inserted that a more complete contract should be made thereafter. The formal contract was, under seal, signed by all the parties, contained a provision about payment of taxes, and also an agreement on the part of Burdick not to assign the contract without the consent of the other party.

While the memorandum is silent on the subject of taxes and assignment, still it is very clear that it was the understanding between the parties that it should be put in the form it was when finally executed. The memorandum was never treated as the completed contract. Besides, there is no allegation in the complaint that the clause forbidding the assignment was improperly inserted, so that as between Wheeler, the Dusenburys and Burdick, the formal agreement fixed the rights of the parties.

The agreement of the 4th day of December, 1880,, made by Bur-dick and delivered to the plaintiff, mentions the fact that Wheeler & Co. had agreed to make a complete contract, one-half interest in which should be assigned to the plaintiff by Burdick. After that, and on the 8th day of March, 1881, the half interest was assigned on the back of the contract. It will be observed that Burdick’s agreement of the fourth of December, does not purport or assume to assign any part of the contract of Wheeler & Co. to the plaintiff. That instrument sells and conveys to the plaintiff one-half of Burdick’s interest in the land. It also provides that when he, Burdick, obtained from Wheeler & Co. a complete contract he will assign one-half of it to the plaintiff. It then proceeds and defines the rights and duties of the plaintiff and Burdick, as between themselves, including the advantages accruing to the party performing. When the plaintiff took the assignment of one-half of the complete contract it is fair to assume that he knew of the non-assignment clause. There is no finding to the effect that the plaintiff did not read or know the contents of the instrument, the one-half of which was assigned on the back of it. It is presumed that a person understands the matters in reference to which he deals. It is an elementary rule that an assignee of a contract for the sale of lands occupies no better position than bis assignor. (Reeves v. Kimball, 40 N. Y., 299; Cutts v. Guild, 57 id., 229.)

The very most that the plaintiff can claim is that on the fourth of December Burdick had a contract with Wheeler & Co. which was assignable. That he became the owner of one-half of that contract, occupying, in reference to that one-half, as good a position as against Wheeler & Co., as Burdick would have occupied against that firm if no assignment had been made.

So far as the plaintiff and Burdick agreed to do certain things as between themselves, it cannot be claimed that Wheeler & Co. were in any way affected by it. For a breach or failure to perform the only remedy would be an action between themselves. The firm of Wheeler & Co. was never a party to those stipulations or bound by them. When Burdick became a party to the complete contract with the non-assignment- clause, he put it out of his power to place the plaintiff in such a position that he could enforce Burdick’s half against Wheeler & Co. They could never be compelled to perform a contract which was never made. It was a part of the contract between them and Burdick that there should be no other owner without their consent. It is obvious, therefore, that this entire contract could not be specifically enforced against Wheeler & Co. without Burdick’s consent.

It is a familiar rule that an assignee cannot compel specific performance when the original contract is made non-assignable. The rule is equally well settled that equity will not decree a specific performance, unless it can compel the execution of the whole contract. (Talbot v. Adams, 12 N. Y. W. Dig., 410; Sternberger v. McGovern, 56 N. Y., 12; Dixon v. Rice, 16 Hun, 422; Waterman on Specific Performance, §§ 389, 390-395.)

The only exception is when the contract is divisible, and may, therefore, be enforced in parts. (Waterman, § 395-398, inclusive.)

It is equally well settled that when a party wrongfully puts it out of his power to perform after its execution, a specific performance cannot be decreed. (Waterman, §§ 125, 127, and cases there cited.) Where an assignor has forfeited his right to a specific performance the assignee cannot enforce it. (Frazier v. Broadnax, 2 Litt. [Ky.], 249; Waterman, § 74, p. 101, cases cited in note.) Each party must be able to compel specific performance. Thus an infant cannot enforce as against an adult, as the latter could not against him. (Waterman, §§ 197,198.) Both parties must be bound. (Waterman, §§ 196-198.) The contract must be mutual and certain in its terms. (Burling v. King, 46 How., 452.) An enforcement cannot be compelled where the parties agree to rescind. (Monell v. Marshall, 25 How., 425, 429.) The agreement between the plaintiff and Burdick of the fourth of December clearly states the rights of the parties with reference to the land as between themselves. It shows how much was paid, who should make the next payment, also the following payments, including the rights which should accrue to the party performing in case the other failed.

There is nothing in the assignment on the back of the agreement which shows the rights of the plaintiff and Burdick as between themselves. That contract was between Wheeler, the Dusenburys and Burdick. The plaintiff was not a party to it. Neither were Wheeler & Go. parties to the agreement between the plaintiff and Burdick. That contract could not be enforced by Wheeler and the Dusenburys against the plaintiff and Burdick, or either of them; nor could it be enforced against Wheeler & Go. by the plaintiff or Burdick. There was no mutuality. Wheeler &■ Co. were not parties to that contract. No obligations under it were assumed by them, nor does it purport to confer any rights or impose any obligations upon them. If either the plaintiff or Burdick failed to pay his share of the money it would not affect them. If Burdick made default and the plaintiff paid all, and thus as between him and Burdick became entitled to the full benefits of the contract as against Burdick, it would in no way affect Wheeler & Co. Those provisions had no reference to them. They only concerned the plaintiff and Burdick in their interests as between themselves. It is perfectly obvious that no decree of specific performance could be adjudged, in favor or against Wheeler & Co., of the contract of the fourth of December. The only right which the plaintiff, in the most favorable view, acquired as against Wheeler & Co. by that instrument, was that of owner of the one undivided half of Burdick’s interest in his contract with them. It is perfectly clear that the plaintiff could not enforce specifically against Wheeler & Go. that undivided half interest without Burdick’s consent.

Their contract was entire. The one undivided half could not be •enforced specifically against Wheeler & Co. They never made any such agreement. Suppose that Burdick had fully performed on his part his contract with Wheeler & Co., and then demanded the execution of two deeds, one of the undivided half to the plaintiff and the other to himself, it is self-evident that on their refusal to comply the court could not compel them. The conclusive answer would be that they never made any such • contract. Specific performance is a remedy to compel, the fulfillment of a contract as made ; the court cannot make or change a contract and then enforce it. (Vallette v. Whitewater Canal Co., 4 McLean, 192; Cassady v. Woodbury County, 13 Iowa, 113; Haskell v. Allen, 23 Maine, 448; Grey v. Tubbs, 43 Cal., 359; Phil., etc., R. R. Co. v. Lehigh, etc., Co., 36 Pa. St., 204.)

This entire contract could not be separated into two parts by one of the parties to it, and then the other party be compelled to perform the halves. If for any reason one-half of the contract was extinguished a specific performance of the other half could not be decreed. At the time the contract of December fourth was made the plaintiff and Burdick may have been in doubt as to the value of the land contract. A good many years would elapse by its terms before Wheeler & Co. could be compelled to execute a de^d. They never could be so compelled, unless payments were made as provided for in the contract. A default might result in the loss of the land, including all previous payments The plaintiff and Burdick therefore .were careful to insert in the agreement between themselves which of them should make the payments and in what proportion, also to provide that if one failed to fully perform on his part the other might and thus obtain the benefits of the whole contract. The effect of the contract between themselves, on the one failing to make prompt payment, was substantially the same as it would be in case of default in making payment on Wheeler & Co’s, contract.

It is not perceived that there is anything in the nature of a forfeiture in those provisions. It was proper to provide that if one failed the other could step in and make full payments and receive the full benefit of the contract. It falls within the principle decided in Robinson v. Cropsey (2 Edw. Chan. Rep., 138), and that class of causes. The contention on the part of the plaintiff is that, as between the plaintiff and Burdick, all of Bur-dick’s rights in the contract were extinguished by the fraudulent settlement, and that the plaintiff became the sole owner as against him; in other words, placed in such a position that under the contract of December fourth he could make the payments as they fell due, and receive the full benefits of the contract. The claim of the learned counsel being that the necessary and logical result of the finding of the trial justice was to entitle the plaintiff to the whole of the land instead of one-half, on the assumption that the whole of the contract inured to the plaintiff’s benefit. It is difficut to answer the logic of the learned counsel for the plaintiff in support of this position. If the conclusions of the learned trial justice and a majority of this court at the General Term are correct, that is, if a decree of specific performance can be made securing to the plaintiff the benefits and advantages of one-half the contract, there appears to be no good reason why he should not be decreed the benefits of his whole contract. Burdick, by his fraudulent settlement voluntarily extinguished all his rights in the contract he deprived himself of the power to enforce. After that fraudulent settlement he was in no position to say to the plaintiff, “ I have settled my part of the contract and have got what satisfies me on the settlement therefore you never can get only one-half, whether I make any payments according to our contract or not.” The plaintiff’s conclusive answer would be, “You have, by your fraud, prevented the possibility of my obtaining the full benefits of the contract; you have voluntarily extinguished your power for the purpose of defrauding me. I shall therefore proceed upon the assumption that you have neglected and refused to make your part of the payments; I will go on and make them as provided by the contract in case of your default, and will thus obtain all the advantages.” Suppose the plaintiff occupied a position where he could enforce the entire contract as against the Dusenburys, he certainly could not be prevented from doing so by the fraudulent act of Burdick. It seems to be very clear that if a decree can be made in the nature of a specific performance the plaintiff is entitled by the decree to the full benefits of his entire contract, and he has a right to treat Burdick’s interests in it as extinguished by his fraud. The difficulty is in finding the power to make such a decree against Wheeler & Co. and the Dusenburys. A breach, of Burdick’s contract with tbe plaintiff would not create a cause of action in tbe plaintiff’s favor against third persons who were not parties to tbe contract. Burdick’s breach could not operate as an assignment of tbe other half of tbe contract to tbe plaintiff so as to make him tbe owner of tbe whole contract as against Wheeler & Co., at any rate not until after tbe happening of tbe events which, by tbe contract, would make the plaintiff owner as against Burdick.

On the 10th day of August, 1881, at tbe time of tbe fraudulent settlement, no default bad been made by Burdick. Tbe time for bis payment bad not come. There was nothing then due upon the contract. Burdick owned one-half of it and the plaintiff tbe other. Tbe trial justice found, among other facts, that on tbe fraudulent settlement Burdick executed and delivered to Wheeler and tbe Dusenburys an instrument in writing, canceling and surrendering tbe said contract and releasing and transferring to them all Ms rights, title cmd interest in said land and contract.

It thus appears that on tbe lOtbday of August, 1881, Burdick while owner of half the contract canceled all bis rights and interest in tbe land and contra^^ That whole settlement has been adjudged void as against tbe Jm'tiff. But Burdick’s interests in tbe contract have not been revived or restored as against Wheeler and tbe Dusenburys. In consummating this fraud on tbe plaintiff Burdick extinguished his half of tbe contract. As between him and Wheeler & Co. be bad power to do so. His one-half interest has never been revived or restored. In committing the fraud upon tbe plaintiff be, so to speak, killed bis interest — his half is dead an,d cannot be restored to life by tbe court. It never assumed to do so.

Suppose Burdick at tbe time of this settlement bad owned tbe whole instead of one-half of tbe contract, that settlement would of course have ended it, so that tbe court could not restore or revive it in whole or in part. Although this settlement was void as against tbe plaintiff, it was valid as between Burdick and Wheeler & Co. (Robinson v. Stewart, 10 N. Y., 189-196.)

There is nothing in the pleadings or findings asking the restoration to Burdick or anybody else of his half of tbe contract. As this contract was entire, it is self-evident one-half being dead and extinguished that tbe other half — tbe surviving part — cannot be specifically enforced under the well established principles of law as above stated. Tlie extinguishment of the undivided half destroyed the whole to such extent as to prevent specific performance.

The plaintiff has. remedies which will secure him full redress, but specific performance is not one of them. It is not necessary to say that if the plaintiff had ever been in a position to enforce his agreement with Burdick, giving him the whole premises in case of Burdick’s default against Wheeler and the Dusenburys, that right would not be taken away by the fraudulent transaction between themselves and Burdick. In other words, that fraud created a cause of action, but did not create a contract which could be specifically enforced. Wheeler, the Dusenburys and Burdick are jointly and severally liable to the plaintiff for all damages sustained by him by their fraud of the tenth of August. Whether Wheeler & Co. were liable to the plaintiff in any form of action before the commission of that fraud, it is not important to inquire. The moment they fraudulently combined with Burdick to cheat the plaintiff, and consummated their fraud to the plaintiff’s damage, they created a joint and several cause of action against themselves in favor of the plaint’Ig* the full extent of all the damage he sustained thereby, to the-' ^fcft of his entire interest in the contract with Burdick. ".00

The plaintiff may also pursue and obtain the one-half of the interest acquired by Burdick in this fraudulent settlement. His interest in the contract, for which he paid nothing, was agreed upon as 118 acres of the land, of which he received a deed, after-wards causing it to be conveyed to a fraudulent grantee, his wife. This 118 acres was treated by the conspirators as the value of Burdick’s interest in the contract. While as against the plaintiff the whole arrangement was void, yet he has a right to elect to accept 'the 118 acres as the value of his and Burdick’s in the contract. Although Burdick intended to exclude the plaintiff from all benefits, he had no power to do so. It inured to the plaintiff’s benefit at his election. The property obtained by Burdick, the proceeds of the fraud against the plaintiff, can be followed and reclaimed as against Burdick or his fraudulent grantees.

It is a familiar rule that under such circumstances the property may be pursued and recovered from every one except a 'bona, fide purchaser. (Mitchell v. Reed, 61 N. Y., 123; S. C., 84 id., 556; Newton v. Porter, 69 id., 133; Hooley v. Gieve, 7 Abb. N. C., 271; Slade v. Van, Vechten, 11 Paige, 21; Dutton v. Willner, 52 N. Y., 312, 319; Case v. Carroll, 35 id., 385; Conkey v. Bond, 36 id., 427; Moore v. Moore, 5 id., 256.)

If the plaintiff pursues the property he will be entitled to a deed •of the one undivided half of the 118 acres, one-half of the rents and profits since the 10th day of August, 1881; also fifty dollars, with interest, being one-half of the hundred dollars advanced by the plaintiff on the contract. In this way Burdick would gain nothing hy his fraud and the plaintiff would obtain his share of the proceeds.

If the plaintiff, at the time of the fraud, had been the owner of the whole contract as against Burdick, and if it had been assignable so that he could have enforced it as an entirety against Wheeler & Co., as well as against Burdick, then it is very clear that the court upon adjudging the whole scheme void as against the plaintiff (all the parties being before it), could adjudge a specific performance in 'the plaintiff’s favor. As it is, there are insurmountable obstacles in the way, one is that he only owned one-half of the contract, the •other half halCu;','en extinguished and never restored to life. Another is thJ^ar i&'fetinguished half was made non-assignable, ■therefore not enforceable to that extent, specifically, against Wheeler •& Co., in favor of an assignee.

Another is that the fraudulent settlement was not in furtherance •or performance of the contract, but in violation and extinguishment of it, to the extent of Burdick’s interest. The contract is entire. The one-half cannot be specifically enforced as it is impossible to enforce the other half.

If the plaintiff should prefer to proceed to recover damages in fraud instead of following the 118 acres, he should be allowed to move at Special Term to amend as to parties and allegations in such ■a way as he may be advised to make his action available. Although this action is one in equity, and no damages are demanded, •still as the acts of fraud, the rights of the parties, including the property involved, are fully stated in the complaint, no good reason is perceived why the action may not be retained and proper amendments made at Special Term without bringing a new action. If, however, the plaintiff elects to proceed for damages and is advised that the proper amendments cannot be made in this action, be should be allowed to discontinue this action without costs or prejudice to bringing another action for damages. If he elects to follow the land the pleadings are sufficient to entitle him to the relief above indicated. (Price v. Palmer, 23 Hun, 504; Code, § 1207; Murtha v. Curley, 12 Abb. N. C., 12; Beach v. Cooke, 28 N. Y., 508; Marquat v. Marquat, 12 id., 336; Jackson v. Andrews, 59 id. 244.) In that e/ent he should be entitled to the costs of this action including the appeal. In case amendments are made, and it proceeds as an action for damages, costs should abide the event. The plaintiff should notify the defendant’s attorney of the course he elects to pursue within twenty days after the decision of this appeal.

This judgment should be reversed, with the right to the plaintiff to proceed as indicated in this opinion, or modified as above stated at the plaintiff’s election.

Judgment modified so as to direct that the money heretofore tendered by the plaintiff to the defendants Wheeler and Dusen-burys be paid into court to the credit of the action within twenty days, and as so modified judgment affirmed, without costs to either party.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM C. MOORE, Appellant.

      La/rceny — •procuring goods by false representations — Penal Code, sec. 528 — evidence as to the intent with which the act was committed — when the schedules of an assignee are inadmissible as against the assignoi’.

    The defendant was tried and convicted upon an indictment charging him with larceny in feloniously stealing a draft. The defendant was engaged in carrying on business as a hanker in the village of Victor under an agreement with his brother in-law, one Upton, the president of the City Bank of Rochester, by which the latter was to furnish him with such currency as he might need and to discount the notes taken by him. Prior to December 19, 1883, Loomis & Woodworth had opened an account with the defendant and were accustomed to discount with him drafts drawn against produce shipped by that firm. On that day the defendant met one of the firm in the morning and asked him if he had anything for him that day, stating that he was short in New York. On the afternoon of that day the firm sent him the draft described in the indictment, and the same was discounted by him and the avails placed to their credit, at the same time he paid a check drawn by them, the amount of which exceeded the amount of their deposit prior to the discount of the draft. The defendant mailed the draft to the City Bank of Rochester the same afternoon and asked for $2,000 currency. That evening he learned that the bank at Rochester and Upton had failed; he was at that time liable upon his notes loaned to Upton to the extent of $50,000. The next morning the defendant made a general assignment for the benefit of his creditors.

      Held, that there was nothing in the representations made by the defendant, nor in the fact that he was carrying on the business of a banker, which authorizes his conviction for larceny, under subdivision 2 of- section 528 of the Penal . Code, for obtaining possession of or converting to his own use the said draft by means of fraudulent or false representations or pretenses.
    The counsel for the defendant requested the court to charge the jury that there can be no larceny without a felonious intent — an intent to steal.

      Held, that the court erred in refusing so to charge.
    Upon the trial the defendant was asked by his counsel questions as to whether or not he intended at the time of discounting the draft to make an assignment, and as to whether he expected to pay the proceeds of the draft to Loomis & "Woodworth, and as to whether at the time he expected to continue in business and be able to pay his debts as they matured. The court, upon the objection of the counsel for the people, refused to allow him to answer these questions.

      Held, that it erred in so doing.
    After the assignment the defendant went west. During his absence his assignee made an inventory and schedules of debts and liabilities. It did not appear that the defendant had ever seen or examined them. Upon the trial they were offered and received in evidence against the defendant’s objection and exception.

      Held, that this was error.
    Appeal from a judgment of conviction of tbe defendant for tbe crime of grand larceny in tbe first degree, entered at tbe Ontario Oyer and Terminer.

      John Van VoorMs, for tbe appellant.

      O. G. Armstrong, district attorney, for tbe respondent.
   Haight, J.:

On tbe 23d of October, 1883, an indictment was found against tbe défendant, at tbe Ontario Oyer and Terminer, charging him with tbe crime of grand larceny in the first degree. Tbe indictment contained two counts. Tbe first count charged that on the 19th day of December, 1882, with force and arms, one instrument in writing, commonly called a draft for tbe payment of money (describing tbe draft), of tbe value of $983.63, ot tbe property of one Leslie G. Loomis and Wilbur C. Woodworth, then and there being found, feloniously did steal, take and carry away, against the peace of the people of the State of New York and their dignity. The second count is in the same language, except that it contains the words “ a more particular description of which said instrument, in writing is to the grand jury unknown, for the reason that the said instrument in writing is in the possession of the said William C. Moore, or those claiming under him. The defendant demurred to the indictment; the demurrer was overruled. A trial was had,, resulting in the conviction of the defendant, and on such conviction he was sentenced to imprisonment for the term of five years.

IJpon the trial the undisputed evidence tended to show that the defendant was a private banker in .the village of Yictor, in the county of Ontario, and had been for about fourteen years; that he began business in a small way, having a capital of only $6,000 ; that before engaging in the business he advised with Charles E. TJpton, the president of the City Bank of Rochester, who was his brother-in-law, and was advised by him that lie would furnish him with all the currency that he wanted to carry on the business, and that, he had always done so; that it was the custom of the defendant when he discounted paper, to send it to the City Bank of Rochester, and for the City Bank to furnish him with such currency from time to-time, as he wanted ; that in August, 1882, Loomis & Woodworth, produce dealers at Yictor, opened an account with the defendant. Their method of doing business was to ship their produce and draw drafts upon it and turn the drafts over to the defendant, who would discount them, giving them credit for the avails. Upwards of fifty of such drafts had been discounted prior to the 19th day of December, 1882; on that day the defendant met one of the members of the firm in the morning and asked him if he had anything for him that day, stating that he was short in New York. Subsequently, and in the afternoon of that day, Loomis & Woodworth sent, by Daniel J. Hoag, their bank book and the draft mentioned in the indictment to the defendant’s banking office; the defendant discounted the same and gave Loomis & Woodworth credit for the avails upon their book; that they also sent by Hoag a check for $365.96, which was also presented to the defendant and paid; that the amount standing to the credit of their account at the bank before depositing the draft was only $185.39; on that day the defendant received in his bank the sum of $5,254.88, and paid out the sum of $5,098.66; on the evening of that day he learned that the City Bank of Boehester and Mr. TJpton had failed and made an assignment; he had lent Mr. Upton his notes for upwards of $50,000 for the accommodation of Mr. Upton; he had by the afternoon mail forwarded the draft in question to the City Bank and asked for $2,000 in currency to be returned to him; he was depending upon the City Bank for currency with which to carry on liis business. Under these circumstances, the next morning he made a general assignment for the benefit of his creditors.

It is contended in the first place that the court erred in overruling.the demurrer; that the indictment is bad because more than one crime is charged therein, and that it does not contain a plain and concise statement of the act constituting the crime without unnecessary repetition.

Section 278 of the Code of Criminal Procedure provides that the indictment must charge but one crime and in one form, except as in the next section provided.” The next section provides that “ the crime may be charged in separate counts to have been committed in a different manner or by different means, and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.”

The only difference, as we have seen, is that one count charges “ a more particular description of the property is to the grand jury unknown,” etc. We are inclined to the opinion that this is permissible under the statute, and that the indictment is not demurrable upon that ground.

Section 275 provides that “ the indictment must contain a plain and concise statement of the act constituting the crime, without unnecessary repetition.”

Section 528 of the Penal Code provides that “a person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either:

“ 1. Takes from the possession of the true owner, or of any other person; or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing; or secretes, withholds or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind; or,
“2. Having in his possession, custody or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement or by competent authority to hold or take such possession, custody or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property and is guilty of larceny.” .

It will be observed from the reading of this statute that larceny can be committed in four different ways: First. By a person who, with intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, takes from the possession of the true owner or any other person, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind. Second. By a person who, with like intent, obtains from the true owner or any other person, possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing, any money, personal property, etc. Third. Any person who, with like intent, secretes, withholds or appropriates to his own use any such property, etc.; and Fourth. Any person who, with like intent, having in his possession, custody or control the property of another as a bailee, servant, attorney, agent, clerk, etc., appropriates the same to his own use.

The indictment, as we have seen, charges the taking of the draft in question “with force and arms, then and there being found, feloniously did steal, take and carry'away against the peace of the people,” etc. This we regard a sufficient statement of facts to bring the case within the first clause of the section, which is the taking of property from the possession of the true owner, etc. This subdivision of the section defines the crime of larceny substantially as it was defined by the Revised Statute, and such a statement, under the Revised Statute, was sufficient. The second, third and fourth subdivisions of the section constituting larceny in substance re-enact tbe provisions of the Revised Statutes constituting the crimes of obtaining personal property by means of false representations or pretense, the secreting, withholding and converting of property, and embezzlement by bailees, servants, attorneys, agents and officers. If, upon the trial, it should turn out that the ofíense proved differed from that alleged in the indictment, the question would be one of variance and could not be taken advantage of by ■demurrer.

The court, in its charge to the jury, said the law requires of •every banker, who holds himself out to serve the public in that capacity, to a more rigid responsibility for good faith and honest dealings than ordinary contractors merchants and traders. It requires of him that he shall only deal with those men when he is able to perform the contract which he assumed to perform by virtue of dealing with them, and the very act of entering into a contract implies on his part a representation that he is able to perform his part of the contract and pg,y back the money deposited with him if it shall be demanded of him during banking hours. The ■court then says: That was the contract which this man made, and that was the nature of the representation which the law implies him to have made when he entered into this contract with the firm ■of Loomis & Woodworth, at that time, if this was a deposit there. He gave them credit; he did not ask any credit, to be sure; he was not at liberty, when he had received the deposit, to say, ‘ I will pay you to-morrow or the next day, or the day after,’ but when he received it he was implied as saying, I will pay you at once,’ ■* * * that being the obligation he assumes and the representation the law implies. The question is, was that representation true ? Was he in a condition to meet that obligation ? As to that I fancy you will have very little difficulty. It is a question for you upon the evidence, as to whether or not he was in a condition to meet that obligation at the time he assumed it. It appears from the evidence in this case, and it is not practically disputed, as I understand it. that at this time Mr. Moore was not a solvent man. * * * The obligation which this man assumed, by virtue of his business as a banker, was that he would pay his depositors the amount each depositor had with him whenever it was demanded. The obligation was, therefore, to pay on demand, and if he was able to do that he was solvent; if he was not able to, he was legally insolvent.”

It will thus be observed that the ease was tried and submitted to the jury upon the theory that the false representations and precense relied upon to convict, were to be determined from the implications arising from the fact of his doing business as a banker, and of his-insolvency. Whilst these implications are often relied upon in civil actions, for the purpose of establishing fraud so as to disaffirm contracts and recover back property sold, we are not aware of any case in which such implication has been relied upon to establish larceny or the crime of obtaining property by false pretense.

The question thus presented is of considerable importance. It is not claimed that the evidence would justify the conviction of the defendant under the first, third or fourth subdivisions of the section. Conviction is only claimed under the second subdivision, which is that a person who, with intent to deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, obtains from the true owner or any other person possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing, any money, personal property, thing in action, evidence of debt .or contract or article of value of any kind, steals such property and is guilty of larceny. The Revised Statute provided that “every person who with intent to cheat or defraud another shall designedly, by any false pretense, obtain from any person any money, personal property or valuable thing, shall, upon conviction, be punished by imprisonment,” etc.

In comparing the provisions of the Penal Code and those of the Revised Statutes, it will be observed that the only substantial change is the incorporating of the word representations ” in the Penal Code, so as to read false representations or pretense.” Otherwise the provisions are substantially the same. It is not claimed in this case that there was any false token or writing by means of which the defendant obtained possession of the draft. It is not claimed that there was any oral or written representations in reference to his means or ability to pay the draft. The only oral communication that passed between them was the asking of the the question, if they had anything for him that day, and the statement that be was short in New York. This was not a representation as to his ability to pay; if it proved anything, it would rather tend to prove that he was in financial trouble, and thus serve as a warning rather than an inducement to deposit with him. The people’s case in reference to false representations and pretense rests solely upon legal presumptions.

In order to constitute the crime of larceny the draft must be obtained by means of false representations or pretense. We do not understand that the failure to disclose the fact of insolvency, when purohasing property upon credit, would amount to a false representation or pretense within the meaning of the Code. To so construe the statute would practically close every avenue to business to the entire insolvent population of the country. If the individual doing business publishes beforehand his insolvency, he thereby closes the door so that he is unable to procure credit and carry on his business. Being insolvent, he has no capital of his own with which to-maintain his business. If, by purchasing upon credit without disclosing his insolvency, the law will imply a false representation or pretense that he is able to pay, and if such false representation or pretense exists, the law will further assume an intent to cheat and defraud, it would follow that the entire insolvent community by continuing in business would become liable to an indictment and conviction for larceny.

By reference to Cowen’s Criminal Digest (at p. 320), we find it stated that “ a false pretense must relate to an existing fact, any representation as to what will or will not happen cannot be considered as a false pretense. So that if a man obtain goods by promising to pay cash for them, or to pay for them at a future time, or gives his note for them with assurances that it will be paid at its maturity, when at the same time he does not intend to pay, these are false promises because there is no pretense that any fact exists; there is no representation as to what is then untrue.” And again he says: “Asa general rule, there must be a false representation by words, written or spoken by the accused, or by some one for him, to which he gives his assent. A mere false show or appearance, however specious or successful it may be, will not support a prosecution under the statute. The false pretense must not only be a misrepresentation as to an existing fact, but it must be a willful misrepresentation ; or, in other words, the party must know that be is making a false representation, and it must be so alleged in tbe indictment. * * * The false pretense must be one, to which the jury may believe the person defrauded might and actually did give credit.” And again he says, at page 326: “ An allegation by speech is necessary to constitute false pretense.” And again: “No false pretense made after the delivery of goods, can support an indictment for obtaining such goods by false pretenses. The false pretenses must be predicated on some matter or thing pretended then to be in existence, but which in truth was not.” (People v. Conger, 1 Wheeler’s Cases, 448; Daniel K. Allen’s Case, 3 City Hall Recorder, 118; Ranney v. The People, 22 N. Y., 413; James Conger’s Case, 4 City Hall Recorder, 65; 1 Colby’s Criminal Law, 561, 562, 563.)

Russell on Crimes (at page 288, volume 2) says: “ Barely asking another for a sum of money is not sufficient, but some pretense must be used and that pretense false, and the intent is necessary to constitute the crime.

Wharton in his work on Criminal Law (7th ed.), says: “ There must be always something to show adequately that the party •defrauded was induced to part with his property by relying upon the truth of the alleged false statements.” (Sec. 2162.)

And again, at section 2113, he says : In certain cases the conduct and acts of the party will be sufficient, without any verbal assertion. Where a man assumed the name of another to whom money was due, required to be paid by a genuine instrument, it was held indictable. And where a person at Oxford, who was not a member •of the university, went for the purpose of fraud, wearing a commoner’s cap and gown and obtained goods, it was held within the act though not a word passed. And so where the defendant, an employee in a hospital, wrote to a manager for linen, not saying in words that it was for the hospital, but knowingly making that impression 'on the manager’s mind.” But in all of these cases it was by means of false token or writing.

Bishop, in his work upon Criminal Procedure (vol. 2, at § 165), says that the allegation in the indictment that the money or other thing was obtained by means of false pretense, which are the statutory words,- is not sufficient. Tbe allegation must state wbat tbe pretenses were.

We have tbus seen tbat under tbe Revised Statute there must be some false representation or pretense, or else some false token or writing by wbicb tbe party was deceived and induced to part with tbe possession of bis money or property, in order to constitute the crime.

Section 544 of tbe Penal Code provides tbat a purchase of property by means of a false pretense, is not criminal, where tbe false pretense relates to tbe purchaser’s means or ability to pay, unless tbe pretense is made in writing and signed by tbe party to be charged.”

Here we have express statutory enactment providing tbat on the purchase of property it shall not be criminal, unless tbe false pretense is made and put in writing, and signed by tbe party to be charged, where it relates to his means or ability to pay.

Inasmuch as there may be some question about tbe deposit of tbe draft being a purchase of property,” within tbe meaning of tbe Code, we prefer not to rest our decision upon its provisions.

In tbe case under consideration the only representation claimed was the ability of tbe defendant to pay the draft when called upon by Loomis & Woodworth, and such representations were to be inferred from the fact that he was doing business as a banker and at the time was insolvent. It appears to us that the conviction under such circumstances is in direct conflict with the authorities to which we have referred.

The counsel for the defendant asked the court to charge the jury that there can be no larceny without a felonious intent —• an intent to steal. The court refused to so charge and the defendant excepted.

The district attorney argues that under the provisions of the Penal Code the felonious intent to steal is not necessary. It appears to us, however, that this question is settled by the express provisions of the section. “ A person who, with intent to deprive or defraud the true owner of his property, or of the use and benefit thereof,” etc. This clause refers to and qualifies the four subdivisions of the section defining larceny. Felonious ” is defined by Webster to be “malignant, malicious, villainous, traitorous, perfidious.” Felonious intent, where used in penal statutes, means criminal intent, and criminal intent is an intent to deprive or defraud the true owner of his property.

The felonious intent must exist at the time of taking or obtaining possession of the property, where the possession is obtained by means of false representation or pretense. Where, however, the offense consists in the secreting, withholding or appropriating, or where it consists in the appropriating of property by bailee, servant, attorney, agent, clerk, etc., it is only necessary that the felonious intent exists at the time of such secreting, withholding or appropriating of the property, for in such cases the property stolen would be properly in the possession of the party secreting, withholding or appropi'iating it.

Upon the trial the defendant was sworn as a witness in his own behalf and was asked the following questions : “ At the time you received the draft, on the nineteenth of December, did you have any intimation, knowledge or intention of making an assignment ?” Again : At the time you received the draft and gave Loomis & Woodworth credit for it, did you intend and expect to pay the proceeds to them when called for ? ” Again: “ Up to the time when your son arrived from Rochester that evening, had you any intention of making an assignment ? ” Again : At the time you took this draft, on the 19th of December, 1882, did you believe, relying upon your skill and experience as a banker, your credit, and the means you had at your command, that you could continue in business and pay your creditors as their claims matured?” And again: “ At the time you received this draft did you intend and expect to go on with your banking business and pay your debts as they matured ?

Each of these questions was objected to by the people. The objection sustained and the defendant excepted. It appears to us that the questions were proper and that the defendant should have been permitted to answer them. The question of his intent was at issue and was one of the elements constituting the alleged crime. It appears to us that he had the right to show that he believed Mr. Upton to be a man of large means, possessing sufficient ability to take up the notes amounting to $50,000 and upwards that the defendant had -loaned to- him for Upton’s accommodation, and that consequently he did not believe himself insolvent at that time; that he supposed and believed that the City Bank would continue to rediscount his paper and furnish him with necessary currency to continue his business; that he had no intention of making an assignment, but, on the contrary, he expected and intended to continue his business, and pay the proceeds of this draft over when called for, as well as his other depositors. (Kerrains v. The People, 60 N. 1., 221.)

After the defendant had made his assignment for the benefit of creditors, he went west. During his absence the assignee made an inventory and schedules of his assets and liabilities. It did not appear that the defendant had ever seen or approved of them. Upon the trial they were offered in evidence by the people, and received under the objection and exception of the defendant. The object of this evidence was to show insolvency. We do not understand that they were competent.

In the case of Tyler v. Brock et al. (68 N. Y., 418), the action was brought by the plaintiff as assignee in bankruptcy of Edmund S. and George D. King, to recover of the defendants Brock et ah, the value of certain goods alleged to have been transferred by the bankrupts to the defendants in violation of the bankrupt act. Schedules of indebtedness made and verified by the bankrupts were admitted in evidence. It was held that they were improperly admitted; that they were immaterial unless offered for the purpose of showing the insolvency of the Kings, and if offered for that purpose they were not competent evidence as against the defendants. (See, also, Turner v. See, 57 N. Y., 667.)

The case of Abbott v. The People (15 Hun, 437), is distinguishable. In that case the schedules were made and sworn to by the prisoner, and were consequently evidence against him.

Numerous other exceptions were taken upon the trial, but under the view which we have taken of the case we do not regard it as necessary to consider them at this time.

The judgment and conviction should be reversed, and the proceedings remitted to the Court of Oyer and Terminer of Ontario county.

Smith, P. J., Barker and Bradley, JJ., concurred.

So ordered.


author: Smith, P. J.:

text:
    ANTHONY COOMAN, Appellant, v. THE BOARD OF EDUCATION OF THE CITY OF ROCHESTER, Respondent.

      Supplementary proceedings — defeats in the affidavit cannot he taken advantage of in coUatw'al proceedings —power of a county judge to direct money to he paid, over to the claimant — 0ode of Procedure, sec. 294 — the hoa/rd of education of Rochester is a distinct corpoi'ation, separrate from the city.

    In this action, brought by the plaintiff to recover for a quantity of charcoal sold and delivered to the defendant, to be used in the public schools in Rochester, which were under its charge, the defense was that the amount due had been paid to a judgment creditor of the plaintiff under an order made in proceedings supplementary to execution. It appeared that the affidavit presented by the judgment creditor in such proceedings to the county judge stated “ that the city of Rochester, as deponent is informed and believes, is indebted to said defendant in an amount exceeding ten dollars, and that Alonzo L. Mabbett, the superintendent of the board of education, is acquainted with the facts of said indebtedness, and has possession of the claim, order or check upon the treasurer of said city, as such officer of said city, of said indebtedness to said defendant; that the treasurer of said city has charge of the moneys so to be paid to said defendant.-” An order was made requiring Mabbett to appear and be examined, but none requiring the city of Rochester or the board of education to so-appear, nor was any order served on them, nor did they appear in the proceedings. The final order therein recited that it appeared that the city of Rochester was indebted to the plaintiff in a sum named; that a check therefor was in the hands of Mabbett, and ordered it to be delivered to the judgment creditor in those proceedings and the amount thereof paid to him by the treasurer of the city.

      Held, that the validity of the order could not be attacked in this collateral proceeding, upon the ground that the facts were stated in the affidavit upon information and belief.

      Miller v. Adams (52 N. Y., 409) followed.
    That as neither the city nor the board of education were ordered to or did appear for examination, the judge exceeded his jurisdiction in directing the treasurer to pay the amount of the check to the claimant, and that the order made by him was invalid.
    It seems that the board of education of the city of Rochester is a separate and distinct corporation from the city of Rochester, and that its rights and liabilities upon contracts made by it cannot be affected by orders made in proceedings instituted against the city of Rochester.
    Appeal from a judgment, entered upon a decision of the court in a case tried at the Monroe Circuit, without a jury.

      Quincy Van Voorhis, for tbe appellant.

      J. N Beckley, for tbe respondent.
   Smith, P. J.:

Tbe action was brought to recover for a quantity of charcoal sold and dehvered by tbe plaintiff to tbe defendant, to be used in and about tbe public school buildings in said city, under tbe charge off tbe defendant, and which was so used. The answer admitted tbe creation of tbe debt, and alleged payment of tbe same to Otis N. 'Wilcox, a judgment creditor of tbe plaintiff, in pursuance of an order made by tbe special county judge of Monroe county, in proceedings supplementary to execution upon tbe judgment in favor of Wilcox. Tbe questions raised by tbe appeal relate to tbe validity of those proceedings. Tbe proceedings were bad under section 294 of the Code of Procedure. That section provided that tbe affidavit to be presented to tbe judge, on tbe application for tbe initiatory order, shall show, among other things, that a person or corporation has property of tbe judgment debtor, or is indebted to him in an amount exceeding ten dollars. Tbe only averment on that subject, in tbe affidavit presented to the judge by Wilcox, was the following : “ That tbe city of Rochester, as deponent is informed and believes, is indebted to said defendant in an amount exceeding ten dollars, and that Alonzo L. Mabbett, tbe superintendent of tbe board of education, is acquainted with tbe facts of said indebtedness and has possession of tbe claim, order or cheek upon tbe treasurer of said city, as such officer of said city, of said indebtedness to said defendant. That tbe treasurer of said city has charge of tbe moneys so to be paid to said defendant.”

Tbe appellant’s counsel contends that tbe affidavit, being on information and belief, was insufficient to give jurisdiction. We regard Miller v. Adams (52 N. Y., 409) as an authority adverse to that contention in this collateral action. Whether, upon a direct application to set aside tbe proceeding, the affidavit would be held sufficient to support an order based upon it, was left an open question by tbe decision cited, and it does not arise in this case.

A more serious question is presented by tbe claim of tbe appellant’s counsel that tbe proceeding was not instituted to reach tbe debt owing to Oooman by tbe defendant herein, tbe only debt described in tbe affidavit being one alleged to be owing by another corporation, to wit, tbe city of Rochester, and for that reason tbe proceeding is not available to tbe defendant as a defense herein. A reference to tbe charter of the city of Rochester shows that the defendant is a separate department of the government of that city, composed of the commissioners of common schools of the city, and by express terms is made a corporate body in relation to all the powers and duties conferred upon it by virtue of the charter, and is charged with “the superintendence, supervision and management” of the common schools in said city, in all respects. (Laws 1861, chap. 143, title 6, §§ 137, 142, sub. 9, as amended.) The charter also provides for raising money by tax for the support of the common schools of the city, which is made subject to the disposal of the board (sec. 148), and to that end all such moneys, and all moneys received by the city for schools, are to be deposited with the city treasurer, to the credit of the board, and it is provided that they shall be drawn out in pursuance of a resolution of the board, by draft drawn by the president and countersigned by the clerk of said board, payable to the order of the person entitled to receive the money. The treasurer is to keep such funds separate and distinct from any other moneys in his hands. (Sec. 149.) Among other specified purposes for which money may be thus raised by tax, and for which purposes the board of education has the power and is charged with the duty of expending the money under their control, so far as may be necessary, are “ to procure fuel and defray the contingent expenses of the common schools. (Secs. 140, sub. 4; 142, sub. 11; 144, 148.) The board is also charged with the expenditure of the public moneys received by the city from the State and paid to the treasurer for the support of common schools. (Sec. 142, sub. 12, part 3; sec. 149.) All provisions of law in respect to school district libraries apply to it (sec. 145), and it is required to report annually, among other things, such information respecting the common schools of the city as may from time to time be required by the State superintendent of common schools. (Sec. 14-2, sub. 12, part 5.) In short, the board of education, although its individual members are officers of the city, is a corporation distinct from that of the city, subject to the direct control of the State, in some particulars, and capable of making contracts binding upon itself alone, and of ■contracting debts payable out of a specified fund which it has the «ole power to control and disburse. It would seem that in a proceeding instituted for the sole purpose of reaching a debt owing to the judgment debtor by one corporation, an order requiring another .and different corporation, against which no proceeding was had, to make payment of a debt owing by it, must necessarily be a nullity. And if the latter corporation pays to any one other than its creditor, it does so voluntarily; it is not protected by the order, •and the rights of its creditor are not affected thereby.

But in the proceeding under consideration, neither corporation was required to make payment. The initiatory order referred to the debt mentioned in the affidavit, as one in favor of Cooman against the city of Rochester, but it did not require either the city ■of Rochester or the board of education to appear and be examined. Its requirement in that behalf was laid upon Alonzo L. Mabbett, but not as an officer of either of said corporations, the only fact stated in the order in connection with the said Mabbett being that he “is acquainted with the facts of said indebtedness and has ■charge of said claim.” The only purpose in naming him seems to have been to procure his testimony as a witness and to obtain an injunction restraining him from parting with a certain draft hereinafter mentioned, which injunction was granted by the judge. The only persons served with the order were Mabbett and Cooman. Cooman did not appear. Neither corporation appeared or answered. Mabbett appeared and was sworn as a witness, but his attendance for that purpose could have been compelled as effectually, and more .appropriately, by the service of a subpoena. (Code, § 295.) There is no pretense that he owed the debt. As the initiatory order was not directed to the city or the board, and neither of them appeared, ■the judge did not acquire jurisdiction over either of them, and no subsequent action by either of them in respect to the debt owing to Cooman was justified by any order made in the proceeding.

Much was said on the argument as to the official character of Mabbett, but that question we regard as immaterial. As has been said, the initiatory order did not specify him as an officer of either corporation nor direct service to be made on him as such. The affidavit described him as “the superintendent of the board of education,” and he testified in the proceeding that he was superintendent of schools, and as such, clerk of the board of education. Whether he was or was not an officer of the city or of the board is-of no consequence, since neither corporation was directed to appear, and there is nothing in the case to show that he appeared for either corporation to protect its interests, or that he appeared in any other capacity than that of a witness.

The power which the judge possessed -in a proceeding under section 294 was to order “ any property of the judgment debtor, not exempt from execution, in the hands either of himself or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment, except,” etc. (Sec. 297.) The final order made in the proceedings in question recited, among other things, that it appeared that the city of Rochester was indebted to Cooman in the sum of $117.50 ; that a check or order for said amount payable to the order of Cooman is in the possession and under the control of said Mabbett, as an officer of the board of education of said city of Rochester; and that said check or order is drawn upon the treasurer of the city, who has the money of said city in his charge; and it ordered said Mabbett to deliver and transfer to Wilcox, or his attorney, the said order or check, and that the treasurer of the city, upon the service of said order upon him, and upon the presentation of said cheek to him by the plaintiff or his attorney, pay to either of them the full amount of the same.

In making that order, it seems to us the judge exceeded his jurisdiction. lie could only order the property or money of the judgment debtor to be applied. The check did not belong to the debtor. He could have no property in it till it was delivered to, and accepted by, him. For augnt that appears, he was ignorant of its existence.

Again, the treasurer had no authority to pay the check till it was indorsed by the person to whom it was payable, and to pay it without such indorsement was a breach of his official duty, which the judge had not power to compel. Besides, neither the treasurer, nor the corporation of which he was an officer, had been brought into the proceeding or subjected to the jurisdiction of the judge, and the judge’s order, so far as the treasurer was concerned, was hrutum fulmén.

The only mode in which the check could have been made available to Wilcox was through the order of some tribunal of competent jurisdiction to compel Coom'an to indorse and transfer the same. Whether the judge had power to compel that to be done in the proceeding before him, it is unnecessary to inquire, as he did not attempt the exercise of such power.

For the reasons above stated, we think no defense was shown to the plaintiffs claim, and the judgment should be reversed.

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

BARKER, Haight and Bradley, JJ., concurred.

So ordered.


author: Smith, P. 5.:

text:
    JOHN BLANK, Appellant, v. CHARLES HARTSHORN and WALTER PARISH, Respondents.

      ■Joinder of several causes of action arising out of the same transaction — when the plaintiff will not he compelled to elect upon which he will proceed— Code of Civil Procedure, sea. 481, sub. 2.
    Tile first count of the complaint in this action alleged that from about May 1, 1884, to January, 1885, the plaintiff pastured, fed and took care of, and furnished hay and other feed for fifty-two head of cattle belonging to the defendants, at the defendants’ request, and that such pasturing, etc., was reasonably worth $600. The second count alleged that the plaintiff pastured a like number of cattle belonging to the defendants, under a special agreement made between the plaintiff and the defendants about May 1, 1884, by the terms of which the defendants agreed to take said cattle to the city of New York and sell them on or before October 1, 1884, and, after deducting the purchase-price of the cattle and the cost of transportation, to pay the plaintiff two-fifths of the remainder of the proceeds of the sale. The third count alleged a like agreement made between the defendants and one Peters, and that Peters had assigned his cause of action thereunder to the plaintiff. It appeared from an affidavit read by the plaintiff that the defendants might claim to have made the agreement with Peters, who in fact acted as an agent for the plaintiff.

      Held, that the court erred in granting a motion made by the defendants, to compel the plaintiff to elect upon which of the three counts he would proceed to trial.
    Appeal from an order of the Steuben Special Term, requiring tbe plaintiff to elect on which of the three counts in the complaint he will proceed to trial, etc.

      Hakes <& Page, for the appellant.

      J. H. da O. W. Stevens, for the respondents.
   Smith, P. 5.:

The first count alleges that from about 1st of May, 1884, to 1st January, 1885, the plaintiff pastured, fed and took care of, and' furnished hay and other feed for, fifty-two head of cattle belonging to the defendants, at the defendants’ request, and that such pasturing, etc., was reasonably worth $600. The second count alleges-that the plaintiff pastured a like number of cattle belonging to the-defendants, under a special agreement made between the plaintiff' and the defendants about 1st May, 1884, by the terms of which the-defendants agreed to take said cattle to the city of New York and sell them on or before 1st October, 1884, and after deducting the-purchase-price of the cattle and the cost of transportation, to pay the plaintiff two-fifths of the remainder of the proceeds of the sale. The third count alleges a like agreement made between the defendants and one Peters, and that Peters had assigned his cause of action thereunder to the plaintiff.

The order appealed from requires the plaintiff to elect on which count he will go to trial, and to amend his complaint accordingly, and upon failure to elect, orders the complaint to be stricken out.

Except in one particular, hereinafter mentioned, the three counts relate to the same transaction. On that ground the respondents’ counsel contends that the pleading violates the mandate of the Code, that the complaint must contain “ a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition.” (Sec. 481, sul^ 2.) But there may be more than one - cause of action arising out of the same transaction, and if the several causes of action are such as may be united under section 484, their joinder does not necessarily vitiate the complaint. Where it can be seen 'that the statement of each cause of action is probably needful in order to prevent a failure of justice, in consequence of a variance between the pleading and the proof, we think such statement, provided it be plain and concise, should not be regarded as “unnecessary repetition” within the meaning of the Code. Thus, in an action for labor and. services alleged to have been performed under a special contract at an agreed price, if it appears that, from the circumstances of the case, it is doubtful whether the alleged contract can be satisfactorily established, we think the spirit of the Code does not prevent the adding of a count for the same labor and services upon a quantum meruit. In the pi’esent case the first count is of that nature and it. embraces a period from the 1st of October, 1884, to 1st of January, 1885, not covered by the special agreement as set out in the other two counts. Upon these grounds we think the first and second counts may be permitted to stand.

As to the necessity of the third count the plaintiff, in his affidavit used on the motion, avers that the farm on which he pastured the cattle was rented by Peters for the plaintiff’s use ; that the contract with the defendants set out in the' complaint was first negotiated and talked over by Peters and the defendants when the plaintiff was not present, and that it will probably be a question on the trial whether the plaintiff can claim under the contract, as the undisclosed principal of Peters, or as his assignee. In these circumstances we think the third count also should be allowed to stand to enable the plaintiff to present the several lines of proof upon which he relies.

By this disposition of the matter the defendants cannot be harmed, except in being deprived of the opportunity of nonsuiting the plaintiff for a variance in proof, or of driving him to a motion for leave to amend. A special object of the Code is to remove all such meshes and pitfalls from the path of litigants. The defendants may interpose as many defenses as they have to each cause of action, in the same manner and with the same effect as if such cause of action stood alone.

These views are in harmony with the cases of Longprey v. Yates (31 Hun, 432), decided in the old Fourth Department, and the authorities there cited. In Velie v. Insurance Company (65 How. Pr. R., 1), WestbRooe, J., speaking of the different grounds of recovery presented by the two counts in that case, said: “ If either or both are tried, the proof upon each ground of recovery stated may be close and conflicting. A jury of twelve men may be divided in opinion as to which one is established, while all may unite, some for one reason and some for another, in the conclusion that the plaintiff is entitled to recover.” And the Court of Appeals has held in a recent case, that it is not necessary that a jury in order to find a verdict, should concur in a single view of the transaction disclosed bty the evidence; if the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that part of the jury proceeded upon one interpretation and a part upon the other.” (Murray v. Ins. Co., 96 N. Y., 614.)

We think the order should be reversed and motion denied, with ten dollars costs and disbursements.

Baeeee, Haight and Beadley, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.