author: Barnard, P. J.: .'■Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELI BENNETT, Appellant, v. JOSEPH O. MILLER, Register of Westchester County, Respondent.

      Duty of county clerks in discharging mortgages — when they cannot be compelled to do so, when issuable facts are to be determined — 1 JR. 8., 761, sea. 28.
    June 25, 1872, a bond and mortgage were given by one Hart to Wallachand Hoag, executors, of Tristram Allen, deceased, to secure the payment of $5,000; tbis mortgage was recorded in the office of the register of Westchester county on June 27,1872. On September 12, 1883, Tristram B. Allen, a son of Tristram Allen, deceased (there being no evidence of his having any interest in said bond and mortgage) executed and delivered a written instrument, purporting to transfer to the Stationers’Board of Trade of New York a part of bis interest in tbis mortgage to have and bold the same to the amount of $400, and by which be further made and appointed the said Hoag, as executor etc., of Tristram Allen, deceased, bis attorney for him and in bis name to assign and transfer liis interest in tlio said bond and mortgage to the extent of $400 to the said Stationers’ Board, and requested the said Iloag, as executor, to pay the said sum of $400 to the said board from any property that was then or(, might thereafter be in his hands as such executor. This instrutnent was recorded in the register’s office on September 19, 1883.
    Thereafter, and on March 39, 1884, there was recorded in the said office an instrument in writing, dated .January 33, 1884, executed by D. T. Hoag, as the sole surviving executor, by wliich the said bond and mortgage was assigned to Tristram B. Allen, who thereafter assigned the same to one Emma E. Bennett by an instrument in writing, dated September 3, 1884, and recorded October 1. 1886.
    The register of Westchester, having refused an application made by the relator, the owner of the premises covered by the mortgage, to discharge the same of record upon the filing of a satisfaction thereof, signed and duly acknowledged by the said Emma E. Bennett, the relator applied for a peremptory writ of mandamus commanding him so to do.

      Held, that the application was properly denied.
    That, assuming that the purchaser from Tristram B. Allen was not required to search for instruments recorded prior to the date of the record of the assignment to said Allen, yet,that the questions, as to whether or not his assignee had actual knowledge of the prior transfer, and as to the consideration which was actually paid by her, were issuable facts which should be determined by a court of law, and not by the register.
    Appeal from an order, made at the Westchester Special Term, denying a motion for a peremptory writ of mandamus to compel the respondent to discharge of record a mortgage dated June 25, 1872, made to the executors of Tristram Allen to secure the pay- • ment of $5,000, and recorded in the office of the register of Westchester county, June 27, 1872, in Liber 530 of Mortgages, at ..page 386.
    On September 12, 1883, Tristram B. Allen, son of Tristram Allen, executed an instrument by which he sold, assigned, transferred and set over unto the Stationers’ Board of Trade, of the city of New York, a part of his interest in and to the said mortgage which was made by Philip Hart and Barbara, his wife, to Wallach " and Hoag, the executors of Tristram Allen, “ To- have and to hold the same unto the Stationers’ Board of Trade to the amount of four hundred ($400) dollars; and I do hereby make, constitute and appoint the said Daniel T. Hoag executor, etc., of Tristram Allen, deceased, my attorney for me and in my name, to assign '■'and transfer-my'interest to said bond and mortgage to the extent of four hundred ($400) dollars to the Stationers Board of Trade, to retain out of the proceeds, and after the same shall be collected, the said sum of four hundred ($400) dollars, and to pay the same to the Stationers’ Board of Trade, hereby ratifying and confirming all that my said attorney shall lawfully do in the premises, and release him from the transfer to me, or to any one for my benefit, the said interest of four hundred ($400) dollars in said mortgage. I do hereby request the said Daniel T. Hoag, as executor of any property that may be now or hereafter in his-hands as executor of Tristram Allen, deceased, to pay to said Stationers’ Board of Trade the sum of four hundred ($400) dollars,, and the receipt of Stationers’ Board of Trade for said sum will be-a full and valid discharge of the said executor, and have the same force and effect as if the same were executed by me.”
    This instrument was recorded September 19, 1883, in Liber 799 of Mortgages, page 116. Daniel T. Hoag, as sole surviving executor, on January 23, 1884, assigned the aforesaid mortgage- and accompanying bond to Tristram B. Allen, which assignment-was recorded in the register’s office of Westchester county March 29, 1884, in Liber 807 of Mortgages, page 21. The said Tristram' B. Allen, on September 2, 1884, assigned the said bond and mortgage to Emma E. Bennett, wife of the relator, which assignment-was recorded in said register’s office October 1, 1886.

      George W. Stephens, for the relator, appellant.
    Sewell, Pierce da Sheldon, for the respondent.
   Barnard, P. J.:

The rule that a mandamus will not be granted as matter of right-when there is a clear remedy at law is well settled. (People ex rel. Lunney v. Campbell, 72 N. Y., 496.) The papers show no clear legal right to the cancellation of the mortgage. The mortgage was foils,000, and was given by one Hunt and wife to the executors of Tristram Allen. Tristram B. Allen assigned his interest in this mortgage to the Stationers’ Board of Trade to secure $400, and this assignment was dated September 12, 18S3, and recorded September 19, 1883. There was no assignment by the executors to Tristram B. Allen then on record, but in January following one was given and recorded. A mortgage as between the parties passes by delivery, and Tristram B. Allen probably owned the mortgage when he conveyed it to the Stationers’ Company. At all events proof of that fact is possible and seems probable. Assuming that the purchasers from Tristram B. Allen need not search anterior to the .date of the assignment to him in January, 1884, it is still an issuable fact whether she did not have actual knowledge of the transfer to .the Stationers’ Company. It is also possible to show that the ■consideration paid by Mrs. Bennett was not what is known in law .as dona fide. The Stationers’ Company avers these facts to exist, ,and the only proper tribunal to determine the facts is a court of .law. It is entirely unreasonable to put the contest upon a register ■of deeds who has no interest in the question and who is acting under the record as these parties have made it. The order should be .affirmed with costs.

.'■Pratt, J.:

Appeal from an order denying a motion for a peremptory writ ■of mandamus to command the register of Westchester county to accept a satisfaction-piece of a mortgage recorded in Ms office.

The defendant is bound to discharge the general duties imposed ¡by statute on county clerks, respecting the recording of written instruments relating to land in his county. In respect to the discharge of records, the statute (1 B. S., 761, § 28) provides: Any mortgage that has been registered or recorded, or that may hereafter be recorded, shall be discharged upon the record thereof, by the officer in whose custody it shall be, whenever there shall be presented to him, a certificate signed by the mortgagee, his •personal representatives or assigns, acknowledged or proved and ¡certified, as hereinbefore prescribed, to entitle conveyances to be recorded, specifying -that such mortgage has been paid or otherwise .satisfied and discharged.”

It will be observed that this provision, differs considerably from •those which relate to the recording of conveyances. The recording officer must be satisfied that the satisfaction-piece has been signed by, and is properly proven as the act of the mortgagee or his assigns. It would therefore seem that the recording officer ought to require recorded evidence of the title of the person claiming to be an assignee of a mortgage, before he can be compelled to take the risk of recording the satisfaction and entering on the margin of the record of the mortgage the reference to the recorded act by which it purports to have been discharged.

In this case there is no question relative to the manner of proving the satisfaction-price, or of the identity of the party who signed it, with the assignee of the legal title of the mortgage. It is claimed simply that an instrument appeared on record showing that another party, who had not joined in the satisfaction-piece, had an equitable interest in the mortgage. Hart had given his bond to the executors of Allen, secured by his mortgage (in which his wife joined) dated June 25, 1872, recorded June 27, 1872, for $5,000. While the legal title to this bond and mortgage stood in the executors, the son of their testator, assuming to have an existing interest ” in this mortgage, executed an instrument, dated September 12, 1883, purporting to assign a part of his interest ” in the mortgage to the Stationers’ Board of Trade, to hold the same to the amount of $400, and made the executors his attorneys, with power to assign and transfer that interest to that extent in the bond and mortgage, releasing the executors fro tanto, and requesting them to pay $400 to the Board of Trade, with the same force and effect as if that sum had been paid to him. There is no suggestion that the executors ever had possession of the bond or mortgage ; on the contrary, it would appear that they never did act upon or recognize it in any way; for, thereafter and on the 24th .of January, 1884, they executed an assignment of the bond and mortgage to this son, which was recorded March 29, 1884. The son thereafter, and on June 2, 18S4, assigned the bond and mortgage to Emma E. Burnett, whose assignment was recorded October 1,1886. She assigned the bond and mortgage to Braker & Eerris, March 9, 1886, recorded April 10, 1886, and they reassigned it to her April 23, 1886, recorded October 1, 1886, on which day the relator, who owned the land, presented her satisfaction duly proven to defendant, and offered to pay his fees, etc. ■ Defendant refused to discharge the mortgage of record, or to accept said satisfaction-piece for any purpose, on the ground that there appeared to be an outstanding interest in the mortgage in the Board of Trade as assignee of a part thereof.

It may be observed, at the outset, that the Board of Trade could never claim more than $400 interest in this mortgage in any event, and that Emma E. Burnett’s title and right to give satisfaction,pro tcmto, of the balance cannot be questioned. It is, therefore, difficult to see why it was not the duty of the register to have, at least, accepted the satisfaction-piece and recorded it; and I cannot see why it was not his duty to have entered a reference to it on the margin of the record, and there might, perhaps, be some question whether or not the register was obliged to make any such entry, until the discharge was complete. I think, however, he ought to have received the satisfaction-piece and made the entry referring to it. It is assumed that the discharge must be accomplished, if at all, by the acts of both parties claiming under the mortgage. Hence, it is assumed that there must be an entry of two satisfaction-pieces; and if so, I fail to sec why it was not the purpose of the statute to require an entry or entries to meet the emergencies which may arise. Certainly the register had no right to require the joint act of Emma E. Burnett and the Board of Trade in one instrument before he could legally relieve the owner of the land to any extent. But this application was for a peremptory mandamus to satisfy the mortgage in toto, and, therefore, it may be said that unless the relator was strictly right in his entire application, it was within the discretion of the Special Term to refuse to grant this writ for any purpose. This brings us to the question whether or not the Board of Trade was an assignee of mortgage ” to any extent. As bearing on this inquiry, it may be observed that it does not claim to be the assignee of any part of the legal title. It now claims to hold only as an equitable owner pro tanto. Hpon this point I regard it as entirely clear that so long, at least, as the executor held the legal title to the bond and mortgage, the so-called assignment by the son was wholly inoperative to create any interest in the mortgage or bond He had no title to or in this particular asset which ho could assign. How could he have embarrassed the proceedings of the executors in the administration of their trust by selecting this or that particular asset as the subject of his transfer ? If he could thus have chosen one asset, why not another ? This is a very different thing from assigning a part of the distributive share of the estaté. Besides that, the instrument executed to the Board of Trade by the son, seems to contemplate that it shall not of itself be operative to pass any estate in the mortgage. On the contrary, the operative assignment was to be by the executors under the power thereby given to and the request made upon them; at least, it would seem to be necessary that there should have been some ratification of this son’s attempt to reach this particular asset before the Board of Trade could acquire any interest in it. It would seem, therefore, that no estate in this bond and mortgage passed to the Board of Trade by the son’s so-called assignment.

Its claim must, therefore, rest upon the point that the son’s after acquired title inures to its benefit by way .of estoppel — feeding the estoppel — as it is sometimes expressed. But that can only happen by virtue of a covenant of warranty or other covenant for title or quiet possession (McCusker v. McEvey, 11 Am. Rep., 295; Doe d. Potts v. Dowdall, id., 757) in cases of assignment, and the same principle seems to be recognized in our own courts by the late Justice Lott in House v. McCormick (57 N. Y., 320, 321). It would, therefore, seem that the entire legal title to this bond and mortgage, passed under the executor’s assignment to the son ; and so on down to Emma E. Burnett, so that she owned the entire estate therein.

While I think the register might well' have been required to accept the satisfaction-piece, to record the same and make an entry upon the margin of the record of the mortgage of its discharge pro tanto, yet under all the circumstances it was fairly within the discretion of the court at Special Term to refuse the writ and remit the party to an action to obtain adequate relief.

With this exercise of discretion we do not feel inclined to interfere.

Dykman, J., not sitting.

Order affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.; Pratt, J.,

license: Public Domain

text:
    RICHARD DONNELLY, Administrator, Appellant, v. WALSTON H. BROWN and Others, Respondents.

      Negligence — when an employer is not liable for injuries sustained by employees, from, a danger incident to the employment.

    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint made at the Westchester circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover the damages alleged to have been occasioned by the death of the plaintiff’s intestate, which was caused by the alleged negligence of the defendant.
    The court at General Term said : “ The evidence failed to establish any actionable negligence against the defendants. They are contractors for the construction of a portion of the new aqueduct for the city of New York. The plaintiff’s intestate was an employee of the defendants. The work is a tunnel in rock. At the place in question the entrance to the tunnel is by an incline from the surface. It is generally by a perpendicular shaft. At the head of the tunnel when a blast is put in and discharged, the rock broken by the explosion is thrown more or less towards the entrance to the tunnel. This loose rode is put in cars and carried out to the surface. The work goes on day and night, and the explosion is generally at the end of the day or night’s work of one set of men. Thus when one set leave work, there is the result of the explosion in broken rock on the bottom of the tunnel. It was customary for the relieving men to construct a scaffolding by which the torn rock was to be removed, which was loosened as the process o.f removal proceeded. The bottom of this scaffolding was a ladder with its foot upon the loose rock. While the plaintiff’s intestate was removing the loose rock the foot of this ladder slipped from its place on the loose stones and the plank which rested on it fell and killed him. The ladder was sound and the planking good and well laid.
    “ The only trouble was the insecure place for the foot of the ladder. This was a danger incident to the employment, and was therefore, a risk which must be assumed by the employees. (Gibson, v. Erie R. R. Co., 63 N. Y., 452.) The master had done his duty. There is no complaint of the materials or of the capacity of the fellow employees. If the fellow employees were guilty of neglect, then the law is well settled that no action will lie against the master. (Crispin v. Babbitt, 81 N. Y.., 516; Heubauer v. N. Y., .L. Erie and W. R. R., 101 id., 607.)
    “ The case shows that it is admitted by the plaintiff ‘ that the system and the method of the scaffolding, and the appliances adopted and in use by the defendants at the time of the accident to the deceased, was a good and proper system.’ The only basis for the action, therefore, is the neglect of the retiring shift to remove the stones before the ladder was placed. It was not a neglect giving a right of action against the master, if such removal should have been made.” (Malone v. Hathaway, 64 N. Y., 5.)
    The judgment should, therefore, be affirmed, with costs:

      Smith Lent, for the appellant.

      Thomas E. Wentworth, for the respondents.
   Opinion by

Barnard, P. J.; Pratt, J.,

concurred.

Judgment and order'denying new trial affirmed', with costs:


author: Smith, P. J.:

text:
    JANE BISHOP, Administratrix, etc., of WILLIAM BISHOP, Deceased, Respondent, v. THE GRAND LODGE OF THE EMPIRE ORDER OF MUTUAL AID OF THE STATE OF NEW YORK, Appellant.

      Mutual aid association —18; 9, chap. 189 — no claim can he made against the company• unless a certificate has been issued designating the person to receive the payment.

    Chapter 189 of 1879, which incorporated the defendant for'the purpose, among others, of aiding, assisting and supporting members or their families in ease of want, sickness or death, authorized it to create, manage and disburse a beneficial fund sufficient to pay all losses and expenses incident to the corporation, ■ for the relief of members and their families, under such conditions and regulations as might be adopted by the grand lodge; and that such beneficial fund might be set apart “to be paid over to the families, heirs or legal representatives of deceased or disabled members, or to such person or persons as such deceased member may, while living, have directed; and the collecting, managing and disbursement of the same, as well as the person or persons to whom, and the manner and time in which, the same shall be paid on the death of a member, shall be regulated and controlled by the rules and by-laws of the said grand lodge.” The only by-law adopted by the defendant relating to this subject provides that each member of the .order shall be entitled to a mutual aid certificate, which shall set forth the name and good standing of the member, the amount of benefit to be paid at death, and to whom payable, and that such certificate shall represent $2,000.

      Upon the trial of tliis action it appeared that the plaintiff’s intestate, who was a member of the defendant corporation in good standing, died in February, 1886, without having received the certificate provided for in the said by-law.

      Held, that the lack of such certificate was fatal to the plaintiff’s action.
    That as the statute itself designated no beneficiary, and as the defendant had, in accordance with the direction of the statute, provided in its by-law that the person to whom the fund should be payable on the death of a member shall he the person named in the certificate, such designation was a condition precedent to the defendant’s liability.
    Appeal from a judgment in favor of the plaintiff entered on a decision made in this action, wbicb was tried at the Erie Circuit by the court without a jury. • •

      Baker <& Schwarts, for the appellant.

      Truman G. White, for the respondent
   Smith, P. J.:

The defendants were incorporated by chapter 189 of the Laws of 1879, for the purpose, among others, “'to aid, assist and support members or their families in case of want, sickness or death.” The plaintiff’s intestate, who was a member of the defendant corporation, in good standing, died in February, 1886, leaving the plaintiff, his widow, and two minor children surviving him. The third section of the act provides that it shall be lawful for said corporation to create, hold, manage and disburse a beneficiary fund sufficient to pay all losses and expenses incident to the corporation, for the relief of members and their families o»f the lodges under the jurisdiction of the said grand lodge of the State of New York, working under and subordinate to said grand lodge, and such conditions and regulations as may be adopted by the said grand lodge.

The fourth section provides that such beneficiary fund as may be ordained suitable by said gi’and lodge may be provided and set apart to be paid over to the families, heirs or legal representatives of deceased or disabled members, or to such .person or persons as such deceased member, may, while living, have directed; and the collecting, managing and disbursement of the same, as well as the person or persons to whom, and the manner and time in which the sum shall be paid on the death of a member, shall be regulated and controlled by the rules and by-laws of the said grand lodge; and by section 5 of said act the defendant was empowered to make, from time to time, such constitution, laws, by-laws, rules and regulations as it should judge proper for the management of its affairs. The only by-laws adopted by the defendant appearing in the case are sections 24 and 25 of chapter 6 of the general laws, so called.

Section 24 provides that each member of the order shall be entitled to a mutual aid certificate. Said certificate shall set forth the name and good standing of the member, the amount of benefit to be paid at death, and to whom payable, and such certificate shall be issued or caused to be issued by the grand lodge and signed by the president and secretary, with the seal of the subordinate lodge attached. Section 25 provides that the certificates issued shall represent $2,000.

It does not appear that any certificate provided for by the by-laws, above referred to, was ever issued to the intestate. The lack of such certificate, we conceive, is fatal to the plaintiff’s action. The statute does not designate the beneficiary. It describes certain classes of persons who may be made beneficiaries, to wit: “ The families, heirs or legal representatives of deceased or disabled members, or such person or persons as such deceased member may, while living, have directed,” and it directs that the amount of the fund, and the person or persons to whom it shall be paid, shall he regulated and controlled by the rules and by-laws of the lodge. In accordance with that direction of the statute, the defendant has “regulated and controlled” the subject by providing in its by-law that the person to whom the fund shall be payable on the death of a member shall be the person named in the mutual aid certificate issued to such member. Thus, by the statute and the by-law, the designation in the certificate gives the sole right to the fund, and without such designation it is impossible to say that either, or which, of the persons or classes of persons mentioned in the fourth section of the act is entitled to the fund. Such designation is made the condition precedent of the defendant’s liability.

The trial court found that the intestate was not guilty of any default or neglect of duty as a member of said order in not procuring a certificate. That finding does not aid the plaintiff. There is no finding or evidence that the lack of a certificate was owing to any neglect or omission of duty on the part of the defendant. If the intestate had applied to the proper officer of the defendant to issue a certificate designating as the beneficiary a person named by the intestate, and the officer had unreasonably refused, it may be that the person so named would have had a right to recover’ on the death of the intestate; but that is a question not before us, and upon which we express no opinion.

The respondent’s counsel contends that as there is no evidence that the intestate procured a certificate payable to any person other than his family, heirs or legal representatives, it is to be presumed, in the absence of proof to the contrary, that a certificate was issued payable as the statute provides it shall be payable. To this there are two answers. In the first place the statute, as we have seen, does not provide to whom the certificate shall be made payable, but remits that subject to the control and regulation of the corporation by its rules and by-laws. In the next place no presumption arises that the corporation issued a certificate to anyone. It was under no duty to do so, unless the intestate requested it and designated a person to whom it should be made payable, of which there is no evidence.

The charter and by-laws respecting the designation of the person to whom the beneficiary fund shall be made payable, wmre a part of the contract with the defendant, which the intestate entered into when he became a member, and as their provisions have not been complied with, the defendant is not liable. The defense does not rest, as the respondent’s counsel seems to suppose, upon the objection that the present plaintiff is -not the proper party, but it stands upon the ground that the defendant is not liable to anyone.

If these views are correct, it follows that the judgment should be reversed, and a new trial ordered, costs to abide the event.

Haight and Bradley, JJ., concurred; Barker, J., not voting.

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


text:
    FRANK MOLL, Respondent, v. FRANK X. FOERY and CONRAD KASTNFR, Appellants.

      Contract — when a recovery cannot be had thereon, unless full performance of all the plaintiff was required to do thereby be shown.

    This action was brought to recover for work done, under a special contract, by which the plaintiff agreed to remove the earth from a portion of the defendants’ quarry, constituting an area of sixty feet in breadth and one hundred and twenty-five feet in length. The defendants denied that the plaintiff had fully performed his contract, and gave evidence tending to show that when the plaintiff quit the work there was a part of the said area, from three to five feet in width, which had not been excavated; that the defendants called the plaintiff’s attention to it and insisted that he should excavate it, and that he refused to do so.
    Upon the trial the court charged that if there had been a total failure on the part of the plaintiff to perform the contract so that he had not done any work at all, or in case he should have done it in such a manner as would not have benefited the defendants, he could not recover; but, that, if they should find that he substantially complied with the terms of his contract, he was entitled to recover for the work done under it; and it refused to charge, as requested by the defendants’ counsel, that the jury must find that the plaintiff had performed his contract, as it was made, before he could recover upon it.

      Held, that it erred in so refusing.

      Smith v. Brady (17 N. Y., 173) followed, and Glaaius v. Black (50 id., 145); Johnson v. Be Peyster (Id., 666); Phillip v. Gallant (62 id., 256) distinguished.
    Appeal from a judgment of the Monroe county court in favor of the plaintiff, entered on a verdict of a jury.

      William F. Rampe, for the appellants.

      George W. Rail, for the respondent.
   Smith, P. J.:

The action was brought to recover for work done in removing the surface earth of a quarry owned by the defendants, and in drawing away certain chips thrown up from the quarry and loose stone found in removing the surface earth. The work was done under a special contract by which the plaintiff agreed to remove the earth from a portion of the defendants’ quarry constituting an area of sixty feet in breadth and one hundred and twenty-five feet in length, for the sum of $200. The plaintiff claimed to have fully performed the contract, but the defendants disputed the claim, and one of the defenses set up by them was that the contract had not been performed. Upon that issue the evidence was conflicting. The testimony on the part of the plaintiff tended to show that he had removed the surface earth from the entire area specified in the contract, while, on the part of the defendants there was evidence tending to show that when the plaintiff quit the work there was a part of said area, from three to five feet in width, that had not been excavated ; that the defendants called the plaintiff’s attention to it and insisted that he should excavate it, and he refused to do so.

The defendants’ counsel requested the court to charge the jury that they must consider, as a question of fact to be determined by them, whether the contract has been performed by the plaintiff, and that if he has not performed it as agreed, he cannot recover anything under the contract. The court charged in that regard in the following language: “ That if there has been a total failure on the part of the plaintiff to perform the contract, so that he would not have done any work at all, or done it in such a manner as would not have been a benefit to the defendants, he cannot recover. If you find he substantially complied with the terms of the contract, he is entitled to recover for the work done under the contract. The defendants cannot recover any damages by way of counterclaim, because there is no evidence by which you can arrive at a conclusion as to the amount of such counter-claim.” The defendants’ counsel excepted. The defendants’ counsel then asked the court to charge the jury that they must find that the plaintiff has performed his contract as it was made, before he can recover on the contract. The court declined and the defendants’ counsel excepted. The exception taken to the charge was probably unavailing, for the reason that the part of the charge excepted to contained several distinct propositions, some of which were unexceptionable, and the exception taken was general. But the exception taken to the refusal to charge as requested, raises the distinct question whether, in view of the evidence, it was error to refuse to instruct the jury that the plaintiff could not recover under the contract unless they should find that he had performed it as it was made.

In view of the evidence given on the part of the defendants, tending to show a failure to perform* the contract in full, we think they were entitled to the instruction asked for. By the terms of the contract, performance was to precede payment, and was a condition thereof. There are cases holding that when a contracting party has, in good faith, intended to and has substantially complied with the contract, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract-price, less the damage on account of such defects. (Glacius v. Black, 50 N. Y., 145; Johnson v. De Peyster, id., 666; Phillip v. Gallant, 62 id., 256.) Most of those cases relate to building contracts, but whether or not the rule extends to other contracts as well, the present case is not within it.

According to the testimony on the part of the defendants, the plaintiff intentionally abandoned the work, leaving the contract unperformed in a substantia] particular. It is like the case supposed by Comstock, J., in Smith v. Brady 17 N. Y., 173, 188). “If A should agree to plough the field of B, consisting of twenty acres, at a given price for the whole service, or at so much per acre, to be paid when the service is done, and, after ploughing nineteen acres, should abandon the contract, he can recover nothing for his work. The owner of the field may enter, sow it with his grain, and reap the harvest, thus enjoying fully the benefits of the part performance. In so doing he waives nothing, because he cannot reasonably do otherwise. He is not obliged to abandon his field in order to be enabled to insist upon the condition of the contract.”

We think the judgment should be reversed, and a new trial had in the County Court of Monroe, costs to abide event.

Barker, Haight and Bradley, JJ., concurred.

Judgment reversed, and new trial ordered in the County Court of Monroe county, costs to abide event.


author: Barker, J.:

text:
    MILLS W. BARSE, Respondent, v. ELENRY J. MORTON and Others, Appellants.

      Orders for the delivery of oil, drawn, upon one holding it as bailee — when the lattes'is bound to deliver it to the assignee — liability of the drawer in ease he revokes the order — evidence—when proof of a custom is admissible as showing the intention of a pwson acting in accordance with it.

    In October, 1881, one Dilworth sold and transferred several parcels of oil lands, upon which producing wells were located, to the defendants for 59,000 barrels of oil, of which 10,000 barrels were delivered on that day, and orders were given for the other barrels, drawn on the United Pipe Line Company, each order being for 1,000 barrels, in the following form:
    “ October 20, 1881. The United Pipe Lines. Pass to credit of Charles R. Dilworth one thousand barrels crude petroleum, subject to your customary rules and regulations, and charge to the account of H. J. Morton & Co.”
    When the orders were made the defendants had no oil in store, but the oil produced from the lands after the purchase was stored by them with the company. Before the maturing of the orders and after Dilworth had indorsed and parted with them, of which fact the defendants were informed, the company, with the consent of the defendants, delivered the oil to Dilworth.
    Upon the trial of this action, brought by the plaintiff, who had purchased six of the orders, for a valuable consideration and before their maturity, from one Wiser, to whom they had been delivered by Dilworth, after having been indorsed by him in blank:

      Held, that as the evidence was such as to justify the jury in finding that Dilworth intended to sell and transfer his title to the orders to Wiser, and delivered them to him to carry out that purpose, and that Wiser had transferred them to the plaintiff for a valuable consideration, a judgment in his favor should be affirmed.
    Upon the trial the plaintiff was permitted to prove that it was the custon of banks and traders, dealing in this class of orders drawn on the Pipe Line, to purchase the same when indorsed in blank by the payee; and that it was also the custom of the Pipe Line to deliver the oil to the holder on their presentation, thus indorsed, without other evidence of the holder’s title.

      Held, that the evidence was admissible as bearing upon Dilworth’s intention when he indorsed and delivered the orders to Wiser.

      Semble, that the mere naked possession of the orders indorsed by the payee in blank, without other evidence' that the payee intended to part with his title, would not be sufficient to prove a title to the same in the holders as they were not negotiable instruments.
    Appeal from a judgment entered upon a verdict in the plaintiff’s favor for damages and costs, $6,738.81, and from an order denying the defendant’s motion for a new trial made upon the minutes of the justice before whom the action was tried.

      The legal proposition presented by this appeal arises upon two exceptions, one taken to the refusal of the court to grant a nonsuit and the other to the denial of the defendants’ motion at the close of all the evidence asking the court to direct a verdict in the defendants’ favor. In October, 1881, Charles R. Dilworth was the owner of and interested in several parcels of oil lands, upon which were located producing wells, which he sold and transferred to the defendants, and they agreed to pay therefor 59,000 barrels of oil. Of this amount they delivered on the day of sale 10,000 barrels, and for the balance they made and delivered to Dilworth orders on the United Pipe Line Company, all payable in the future, each for 1,000 barrels, and in the following form: “Bradford, Pa., October 20, 1881. The United Pipe Lines: Pass to credit of Charles R. Dilworth one thousand barrels crude petroleum, subject to your customary rules and regulations, and charge to the account. of H. J. Morton & Co.” At the time of the making and delivery of the orders the defendants had no oil in store. The oil produced from the lands after the purchase, was stored by the defendants with the Pipe Line Company. Six of the orders, being those in suit, were made payable on the 20th of October, 1882.. Before these orders were payable Dilworth indorsed the same in blank, and they passed into the hands of C. B. Wiser, who, before their maturity, sold and delivered them to the plaintiff. On the day they were made payable they were presented to the Pipe Line Company and the oil demanded, which was refused. Before that time the company, with the consent of the defendants, delivered oil in this amount to the payee, who, at that time, had indorsed and parted with the possession of the orders, of which the defendants were informed. The plaintiff purchased the orders from Wiser before their maturity, paying therefor a valuable consideration.

      'Oary & Eumscy, for the appellants.

      J. E. <& M. B. Jewell, for the respondent.
   Barker, J.:

The orders were founded upon a good consideration, and they, therefore, constituted an equitable assignment of the oil to Dilworth, although they were never accepted by the Pipe • Line Company, on which they were drawn. It was the duty of that company, acting as the bailee of the owner of the oil, to deliver the same to Dilworth on being notified of the transfer. After the orders were delivered, the defendants could not effectually revoke the same without the consent of the holder. The cases establishing the rights of the parties under instruments of this character are decisive. (Morton v. Naylor, 1 Hill, 583; Parker v. City of Syracuse, 31 N. Y., 376.) The case of Alger v. Scott (54 N. Y., 14), cited by the appellants’ counsel, does not support his position, but affirms the rule as stated where the order is based upon a good consideration. The circumstance that the oil was not in the hands of the drawee at the time of the orders does not change the rule; for, when oil applicable to the payment of the orders passed into the possession of the drawee by the direction of the defendants, the orders became effective and the equitable transfer was accomplished. The parties to the agreement anticipated that the oil produced from the wells located on the lands, or other oil which should be secured by the defendant from other sources, would be delivered to the Pipe Line for the purpose of meeting the orders and thus discharging the drawers indebtedness to Dilworth. As the oil had not been produced and delivered to the Pipe Line Company when the transaction took place, the orders could not operate, eo instantly to transfer the title to the oil; but they, nevertheless, created an equity which would seize hold of the oil as soon as it passed into the custody of the Pipe Line. (Field v. Mayor, 2 Seld., 179.) If Dilworth had remained the owner of the orders, it is clear he would have had a perfect right of action against the defendants in case of their non-payment on due presentation. After Dilworth had indorsed the orders and delivered them to Wiser, the defendants consented that the Pipe Line Company might deliver to Dilworth the quantity of oil mentioned in the several orders in suit.

It is conceded by the defendants that the judgment should be sustained, if, by the evidence, a case was made fairly establishing that Dilworth had transferred his title to the orders and the plaintiff had acquired the same. We think that the evidence tended to prove a state of facts that justified the jury in reaching the conclusion that Dilworth intended to sell and transfer his title to the orders to Wiser, and, to carry out that purpose, delivered the same to him, and that the latter disposed of the same to the plaintiff for a good consideration. Before the maturity of the orders, Dilworth •indorsed the same in blank and caused them to be delivered to Wiser. It appears from the evidence that when the lands were ¡sold, Wiser had an equitable interest therein, and was at that time •.engaged in managing and operating the wells located thereon, and was present and participated in the negotiations which resulted in .the sale. We think this evidence indicates that it was the intention .of Dilworth to part with his title to these orders and to transfer the ■same to Wiser. It does not appear that Dilworth, in any manner, had discharged his obligation to Wiser, arising out of the latter’s .equitable interest in the lands sold and conveyed to the defendants. It is fairly established that Dilworth intended to part with his title. •The mode and manner of making the transfer was sufficient for •that purpose. The holder of the orders would be authorized to write a formal assignment over the indorser’s signature. (Dunn v. Commercial Bank, 11 Barb., 580.)

. We do not intend to hold that the mere naked possession of the •orders indorsed by the payee in blank, without other evidence that ■the payee intended to part with his title, would be sufficient to ■prove a title to the same in the holder. They are not negotiable .instruments. The plaintiff was permitted to prove that it was the custom of banks and traders dealing in this class of orders drawn on the Pipe Line to purchase the same when indorsed in blank by the payee. And that it was also the custom of the Pipe Line to •deliver the oil to the holder on their presentation, thus indorsed, without other evidence of the holder’s title. This evidence was ■objected to by the defendants as incompetent and immaterial. We ■think it was competent as bearing upon Dilworth’s intention when he indorsed and delivered the orders to Wiser. It is disclosed by the case that Dilworth was familiar with this custom. It also •appears by the defendants’ proofs that it was Dilworth’s intention that the orders should be presented by Wiser to the Pipe Line Company for payment at their maturity, but, as he, Dilworth •claims for his own account. If the evidence was competent for the ■purpose indicated, then it was properly received. It was not competent to prove the custom for the purpose of showing that by the iforee and effect of it the payee could be deprived of his title without his consent, or that the same could be construed in any other manner than that required by law.

The main dispute on the trial was, whether the orders were delivered to Wiser as assignee and owner, or as the agent of Dilworth, to present them to the Pipe Line Company and receive the oil on the payee’s 'account. The evidence tended to support both contentions, and we are of the opinion that the verdict of the jury was conclusive against the defendants on that question. In his charge the learned trial judge presented that question to the jury and instructed them that the defendants would be entitled to a verdict in their favor unless they found that Dilworth intended to transfer the title to the orders to Wiser, and if they found he did so intend, then their verdict would be for the plaintiff. Neither party excepted to the charge and the ease was submitted to the jury upon that single issue.

Judgment and order should be affirmed, with costs.

'Surra, P. J., Haight and Bradley, JJ., concurred.

Judgment and order affirmed.


text:
    BRIDGET QUINLAN, Administratrix, etc., of THOMAS QUINLAN, Deceased, Respondent, v. MARTIN H. BIRGE and Others, Appellants.

      Lien of an attorney for costs— Code of Civil Procedure, sec. 66, as amended in 1879 — not affected by a settlement made without the attorney's consent — he cannot proceed with the action, after its settlement, without obtaining the permission of the court — terms upon which such permission will be granted.

    An attorney is not required to give notice to the defendant of the lien for costs, given to him by section 66 of the Code of Civil Procedure, as amended in 1879, in order to make the same effective, as against the action of the parties in settling the cause and stipulating for a discontinuance of the action without his consent.
    Where there has been no verdict, report, decision nor judgment in favor of the plaintiff, at the time of the settlement, the lien of the attorney is preserved on the original cause of action which was placed in his hands for collection, but he cannot proceed in the action, after the settlement, for the purpose of enforcing his lien, without leave of the court, which, in a proper case, it is the • practice of the court to grant on notice to all interested parties.

      After the joinder of issues in this action, brought to recover damages for the death of the plaintiffs intestate, which was alleged to have been caused by the defendants’ negligence, the controversy was settled by the parties thereto, the defendants paying to the plaintiff, as administratrix, $600, and receiving from her a full release and stipulation to discontinue the action.

      Held, that as it was conceded that the defendants acted in good faith in making the settlement, and without any intention on their part of cheating or defrauding him out of his legitimate costs, the plaintiff’s attorney should not he permitted to proceed with the action for the purpose of collecting his costs until it was shown to the satisfaction of the court that he was unable to collect the same from his client, or out of the money which the defendants paid to the plaintifE on the settlement, which was held by her, as a trustee, undischarged of the lien in favor of her attorney for all his costs.
    Appeal by the defendants from an order of the Erie county Special Term permitting the plaintiff’s attorney to prosecute the action for the purpose of recovering his costs after settlement and discontinuance of the action without his consent.
    The deceased lost his life by the burning of the defendants’ factory, in which he was at that time engaged as their servant. It was claimed by the plaintiff that the accident occurred by reason of the defendant’s negligence, and this action was brought to recover the damages suffered by the next of km of the deceased. After the issues were joined, and before trial, the parties settled the controversy; the defendant paid the plaintiff, as administratrix, $600, and she executed and delivered a full release and stipulated to discontinue the action, but no order was entered thereon. No notice of motion was served on the plaintiff, and she did not appear on the hearing.

      James M. Humphrey, for the appellants.

      AdeTbert Moot and George Lewis, for the respondent.
   Barker, J.:

We do not need, in disposing of this appeal, to discuss many of the legal propositions argued by the learned counsel for the respective parties, for in our previous decisions, in similar cases, we have considered and passed upon the controverted questions now presented. This court held in Dimick v. Cooley (3 Civil Pro. R., 141) that the provisions of section 66 of the Code of Civil Procedure, as amended in 1879, had the effect to change the rule of the common law, and by its terms gives an attorney for the plaintiff a lien on the cause of action from the time of the commencement thereof, which cannot be displaced by its settlement and discontinuance without the attorney’s consent, unless his costs are adjusted and paid.

In subsequent cases decided by this and other courts it has been held that it is not necessary for the attorney to give notice to the defendant that he has a lien on the cause of action, by virtue of the said section, for the purpose of making the same effective as against the action of the parties in settlement of the cause of action and stipulating for a discontinuance of the suit without his consent. (Albert Palmer Co. v. Van Orden, 64 How. Pr., 79 [Sup. Ct. N. Y.]; Tullis v. Bushnell, 65 How. Pr., 465 [N. Y. Com. Pleas] ; Jenkins v. Adams, 22 Hun, 600 [1st Dept.]; Whittaker v. The N. Y. and H. R. R. Co., 11 Civ. Pro. Rep., 189.)

As there had been no verdict, report, decision nor judgment in favor of the plaintiff at the time of the settlement, the attorney’s lien is preserved on the original cause of action which was placed in his hands for collection. The court possesses ample power to protect the lien which the law gives the attorney as security for his costs, but he cannot proceed in the action after settlement for the purpose of enforcing his lien without leave of the court, which, in a proper case, it is the practice of the court to grant, on notice to all interested parties. (Martin v. Hawks, 15 John., 405 ; Coughlin v. N. Y. C. and H. R. R. R. Co., 71 N. Y., 443 ; Rooney v. Second Ave. R. Co., 18 id., 368; Pulver v. Harris, 52 id., 73; Dimick v. Cooley, supra.)

When a case is made permitting the attorney to proceed in the action, notwithstanding the settlement between the parties and their stipulation to discontinue, it is the duty of the court to direct as to the time and manner of the future prosecution of the action, and to watch the proceedings and doings of the attorney so as to fully protect the rights of both parties, and not unnecessarily annoy or embarrass the defendant when he has acted in good faith. In view of the facts disclosed in this case,-we incline to the opinion that the p’aintiff’s attorney should not be permitted to proceed with the action for the purpose of collecting his costs until it is made to appear to the satisfaction of the court that he is unable to collect the same from his client, or out of the money which the defendant paid to the plaintiff on the settlement, which the latter now holds as trustee, undischarged of the lien in favor of her attorney for all his costs.

It was conceded on the argument by the attorney that the defendants acted in entire good faith in making the settlement, and without any intention on their part of cheating or defrauding him out of his legitimate costs. The contrary of this concession cannot be fairly established from the history of the case as set forth in the affidavits, and such was the opinion of the learned judge who granted the order under review, for he states in his opinion, which is printed in the case, that the settlement was free from any actual or imputed fraud upon the rights of the plaintiff’s attorney on the part of the defendants or their attorney.

The plaintiff, in her representative capacity, up to this time has in her hands the money paid to her on the settlement — at least nothing appeal’s to the contrary — for the benefit of the next of kin of the deceased, to be distributed by the surrogate after deducting therefrom the expenses of the action,” on notice to such persons as the surrogate deems proper.” (Code, § 1903.) No satisfactory reason has been suggested by the attorney why he should not in the first instance seek payment of his costs from his client, and not pursue the defendants, who had the undoubted right to adjust the plaintiffs’s claim for damages, if she had a good cause of action, or to buy their peace if they conceived her claim to be without merit. Of course, as has been already stated, if there was a good cause of action a settlement without the attorney’s consent would not destroy his lien. In our opinion it would be manifestly unjust and inequitable to compel the defendants to pay the costs of the plaintiff’s attorney until the latter has made every reasonable effort, and failed therein, to secure their payment from the plaintiff, or out of the fund on which he has alien, and which is also in equity primarily liable therefor as between the parties to the action. As the fund is ample, he should be required to pursue it, with due diligence and promptness, and fail in a reasonable effort to reach the same, before the court should allow him to prosecute the action and compel the defendants to pay his costs.

The order should be reversed, without costs of this'appeal, with leave to the attorney to renew the motion if he fails to obtain his costs from the plaintiff or out of the fund paid by the defendants to the plaintiff on the settlement.

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

Order reversed, without costs, and without prejudice to renew on showing inability to obtain costs out of the fund or the plaintiff.


author: .Barker, J.:

text:
    JAMES B. THOMAS, Respondent, v. THE MORAVIA FOUNDRY AND MACHINE COMPANY, Appellant, Impleaded with Others.

      Bight, where persons have liens upon separate lots covered by a mortgage, to' require that the lots be sold in the inverse order of alienation.

    On January 10, 1888, tlie defendants, Lisk and Russell, executed and delivered to tlie plaintiff two mortgages upon four separate parcels of real estate, two of which, were owned by them as tenants in common, the other two being owned by Russell individually. Subsequently thereto,, and on July 12, 1884,. the said mortgagors executed and delivered to the defendant, The Moravia Foundry and Machine Company, a mortgage upon one of the said parcels owned by them as tenants in common, known as the “store lot,” whiohwas, on that day, duly recorded. Thereafter, and on August 27, 1884, the said mortgagors executed and delivered to the plaintiff a third mortgage', which embraced only that one of the two parcels owned by them as tenants in common, which was known as the mill lot. Upon a saleunder a judgment recovered in an action brought to foreclose the first two mortgages, the two parcels of real estate owned by Russell individually were first sold for $925. The “store lot” was then sold for' $2,200, and the' “mill lot” for' $4,000, making an aggregate sum of $7,125.
    Upon an appeal from an order directing that the plaintiff’s third mortgage should be paid from this sum, after deducting therefrom the amount due on the first two mortgages owned by him:

      Held, that the plaintiff should be compelled to satisfy the first two mortgages by applying in payment thereof, first, the proceeds arising from the sale of the real estate owned by Russell, individually, and, second, the proceeds arising from the sale of the mill lot; and that as the fund thereby provided was more than was needed for that purpose, the proceeds arising from the sale of the store lot should be applied to the payment of the mortgage given to the Moravia Foundry and Machine Company, and not to the payment of the plaintiff’s third mortgage.

      Appeal by the defendant, the Moravia Foundry and Machine Company from an order of the Monroe Special Term directing the distribution of the surplus proceeds in a mortgage foreclosure action, after the payment of the two mortgages first mentioned and described in the complaint and in the final decree.
    The plaintiff and the defendants, the Watertown Steam Engine Company and Iienry F. Steele, appeared on the hearing as respondents and ask that the order be affirmed.

      H. Greenfield, for the Moravia Foundry Company, appellant.

      HaBelton <& Allen, for the plaintiff, respondent.

      Mason <& Hose, for the Watertown Steam Engine Company, defendant and respondent

      Franlc G. Avery, for Henry F. Steele, defendant and respondent.
   .Barker, J.:

The facts upon which the legal propositions are based may be briefly stated: On the tenth day of January, 1883, the defendants, John Lisk and Abial L. Russell, the mortgagors, in the several mortgages mentioned in the complaint and in the judgment, were the owners, as tenants in common, of two parcels of land which in all the proceedings in the action have been treated by all the parties as separate and distinct parcels, and are so described in the mortgages. Upon each of said parcels there existed at that time a mortgage lien, less in amount than the value of the property. At the same time the said Russell was the individual owner of two other parcels of land upon which there was also mortgage liens. None of the owners of these several liens were made parties to this action, and all the mortgages and judgments *in which the parties to this action are interested are subsequent and subordinate to said several liens.

On the said 10th day of January, 1883, the said Lisk and Russell executed to the plaintiff the two mortgages first described in the complaint, and there was due upon them at the time of the entry of final judgment the aggregate sum, including the interest and premiums paid for insurance, $4,863.94. Subsequent thereto and on the 12th day of July, 1884, the said mortgagors executed and delivered to the appellant, the Moravia Foundry and Machine Company, a mortgage upon one of said parcels owned by them as tenants in common, and distinguished from the other parcels as the “ store lotand the same was recorded on the 12th of July, 1884, which was subsequent to the recording of the said prior mortgages to the plaintiff. Subsequently thereto, and on the 27th day of August, 1884, the said mortgagors executed and delivered to the plaintiff a third mortgage, which embraced only one of the parcels which they owned as tenants in common, and is distinguished from the other parcels as the mill lot, upon which there was due at the time of the entry of final judgment the sum of $1,092. The judgment contains a direction, that the four parcels of land embraced in the plaintiff’s first two mortgages be sold in the following order: First. Parcel B. Second. Parcel D, which were the premises owned by Russell individually. Third. Parcel C, known as the store lot, and being the parcel embraced in the appellant’s mortgage. Fourth. Lot A, known as the mill lot, which was embraced in the plaintiff’s third mortgage. On the sale parcel B brought $100, parcel D $825, parcel 0 $2,200, and A $4,000, making an aggregate sum of $7,125.

The final judgment directed that out of the proceeds the costs of the suit and the plaintiff’s first two mortgages and interest be first paid, which then amounted in the aggregate to the sum of $4,863.94. The surplus remaining after satisfying this part of the decree, it will be observed, was more than sufficient to pay the plaintiff’s; third mortgage, which was a lien upon the mill lot, and is about equal to the amount which the appellant claims is due upon and secured by its mortgage upon the store lot.”

The real and substantial question in dispute between the parties is, which of these mortgages should be first paid out of the surplus arising upon the sale of all the mortgaged premises ? The appellants’ position is that as its mortgage was executed and recorded prior to the plaintiff’s third mortgage it is, in equity, a lien upon the surplus moneys. The final judgment did not' dispose of this controversy. It contains a provision that out of the proceeds of the sale, properly applicable thereto, there be paid to the plaintiff the sum of $1,092, the amount found due on his third mortgage, and then directs that in all other respects the rights and equities of all the parties be reserved until the further order of the court. It is not claimed, by the plaintiff that this provision of the decree establishes that his third mortgage should be paid prior to the appellants’ mortgage, and he concedes that that question was left open for further consideration. After the premises were sold, and -the referee’s report of the sale was confirmed and the amount of the surplus moneys ascertained, the court made the order of distribution, from which the appellant appeals, which provided that out of such surplus there be first payed to the plaintiff his third mortgage, amounting to the sum of $1,092, with interest thereon from the 11th of March, 1886.

The question presented is first to be considered as between the plaintiff and the appellant. By the application of a well-settled equitable rule the appellant may insist that the plaintiff’s first two morgages should be paid out of the proceeds of the sale, derived from a sale of the premises embraced therein, exclusive of the parcel covered by its mortgage. The fund derived from the sale of those parcels was more than sufficient for that purpose. The effect of a distribution made on this basis will be to secure to the appellant the application of the entire sum realized on the sale of the parcel covered by its mortgage, or so much tñereof as may be necessary to pay the same in full. The appellant’s mortgage will be thus fully protected, and nothing will be taken from the plaintiff, as he will thereby secure the full satisfaction of both of his mortgage liens, which are prior in point of time to the appellants.

The cases are decisive of the question as between parties whose mortgage liens stand in the same relation to each other as these do as to point of time and accruing under the same circumstances. ¥e only need to apply the general rule as stated in Bernhardt v. Lymburner (85 N. Y., 172), viz.: “ Where there are several successive grantees of different portions of mortgaged premises, the land on foreclosure is to be sold in the inverse order of alienation, and this secures the equitable rights of the parties as between themselves. The first grantee of part of the mortgaged premises, who has purchased for full value and without any agreement to assume the mortgage, may justly claim that the burden of the incumbrance should be cast in the first instance upon the remaining lands of the grantor, and a second or other grantee takes subject to the equity of the prior grantee. The same principle is applicable to the ease of successive mortgagees of parts of mortgaged premises on a foreclosure of a prior mortgage on the whole property, where, by its application, the equitable rights of all parties will be secured.” (See, also, Stuyvesant v. Hall, 2 Barb. Ch., 151.)

The appellant was a mortgagee in good faith, and it may be flssrimp.fi that when it accepted the same it was with a full knowledge of the equitable rule, that the remaining parcels covered by the plaintiff’s mortgages would be first sold in satisfaction of the debt secured thereby. Nothing has been disclosed in this case which should result in a defeat of this expectation. The appellant’s mortgage was intended as a security for the payment of eight notes made by the mortgagors, Lisk and Russell, and indorsed by it as an accommodation indorser.' Upon some of those notes a judgment has been recovered by the Moravia National Bank, as holder, against the maker and indorser, in the sum of $1,007, which was docketed in the Seneca county clerk’s office. Upon some of the other notes a judgment has also been recovered by another party, and against the makers alone, for the sum of $552. It does not appear that the appellant has paid either of the notes, or any part of the said judgment recovered against it by the bank upon a portion of the notes so indorsed by it. The defendant, the Water-town Steam Engine Company, hold two mortgages executed by Lisk and Russell upon parcels “ A ” arid “ C,” both of which are subsequent in point of time to the appellants and to the plaintiff’s third mortgage. That company appeal’s upon this appeal, and contends for an affirmance of the order, chiefly upon the ground that the appellant may, in view of these facts, seek protection against its liability as indorser by a resort to separate funds, one of the premises recovered by its mortgage and the other the lands and premises upon which the judgment recovered by the Moravia bank is a lien, and invokes the application of the rule that where a creditor having a lien on separate funds should not be permitted to proceed with the collection of his debt so as to disappoint the creditor, who has a lien only on one of them.

This question is not properly up for consideration on this appeal. The appellant has had no opportunity to establish the extent of its liability as indorser of the notes of the mortgagors, nor was the question up at the time of the making of the order of distribution whether the appellant should resort to some other fund in the first instance for the purpose of securing indemnity against its liability as indorser. The order of distribution directed the payment of the plaintiff’s third mortgage out of the surplus funds before any proceeds should be applied in discharge of the appellant’s mortgage. That is the error relied upon for a reversal of the order of distrh bution, so far as any has yet been made. The order goes no further, but directs that if there is any surplus of the proceeds of sale, after paying the plaintiff’s third mortgage, that the same be paid into court for the use of the person or persons entitled thereto, as may be hereafter determined. As the matter must come again before the court for a final order of distribution, and upon that hearing the question can be investigated as to how much may be due the appellant upon its mortgage, and. the question now presented by the respondent, the Watertown Steam Engine Company, can also, at the same time, be considered, the facts upon which those questions are founded will be more fully and satisfactorily presented than they now appear by this record.

So much of the order appealed from as directs the payment of the plaintiff’s third mortgage in the first instance, out of the surplus money and the particular fund out of which the same be paid, is reversed. The other provisions of the order are affirmed, without costs of this appeal to either party. This will result in leaving the entire surplus subject to the further order of the court.

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

So much of the order appealed from as directs the payment of the plaintiff’s third mortgage, and, also, so much of the order as directs out of what fund the plaintiff’s first two mortgages be paid, is reversed. In other respects the order is affirmed without costs of this appeal to either party.


text:
    JOHN McDONOUGH and Others, Respondents, v. MYRON J. DILLINGHAM, Appellant.

      Pleadings — rules for determining, when an action is to be held as brought on contract and not in tort — when a partial performance of an agreement to com promise a debt will not relieve a defendant from liability for a fraud perpetrated in contracting it.

    Where the allegations of the complaint are such as make it doubtful whether the cause of action therein alleged is on contract or in tort, every intendment is to be made in favor of construing it as being an action on contract.
    In all cases where the pleader avers the sale and delivery of property to the defendant at a fixed and agreed price, which remains unpaid, and also alleges, that he perpetrated a fraud in making the purchase, by means of false repre sentations as to his solvency, and a question of doubt is presented as to whether it was the intention of the pleader to set forth a cause of action ex contractu or ex delicto, the omislion to allege that damages have accrued to the plaintiff by reason of the fraud is accepted by the court as a circumstance indicating the purpose of the pleader to rely upon the contract as constifuting the cause of action
    Since the amendment of section 549 of the Code of Civil Procedure, made in 1879, allegations of fraud on the part of the defendant, in making the contract declared upon, are pertinent and material, and cannot be treated as mere surplusage.
    Upon the trial of this action, brought to recover the damages sustained by the plaintiffs by reason of the failure of the defendant to pay a note and check given by him upon the purchase of cattle, evidence was given tending to show that after the maturity of the note and check the defendant and one of the plaintiffs had some negotiations relative to the indebtedness, in which the plaintiffs accused him of perpetrating a fraud in making the purchase, by fraudulently misrepresenting his pecuniary condition, which accusation was denied by the defendant, though he admitted that he had sought to compromise the debt on account of his insolvency. After propositions suggested by the defendant had been rejected by the plaintiffs, one suggested by the latter was accepted by the defendant, by which the plaintiffs agreed that if he would pay $500 in cash and $1,000 as soon as he could earn it, or would secure its payment to their satisfaction, they would accept it in payment of the debt. The $500 was paid to and applied by the plaintiffs upon the note and check, but neither was given up, nor was any release executed by the plaintiffs; nor was $1,000 paid or secured to be paid.
    The defendant’s counsel, who claimed that the plaintiffs had condoned the fraud-requested the court to charge the jury that if they believed that there was an agreement made between the plaintiffs and defendant, by which the plaintiffs agreed, after they knew all the facts (assuming fraud -to have been committed by the defendant on. the purchase), to compromise or settle the transaction, and such an agreement was partly carried out, then thereby the plaintiffs waived any fraud so committed, and could not recover.

      Reld, that the court did not err in refusing so to charge.
    Appeal from a judgment entered upon a verdict rendered at the Erie County Circuit, and from an order denying the defendant’s motion for a new trial founded upon the judge’s minutes.
    The plaintiffs, in Jujy, 1883, sold and delivered to the defendant two carloads of cattle at the fixed and agreed price of $3,207.60; the defendant thereupon made and delivered his negotiable promissory note for that sum, payable twenty days after date, with use. ' On the 17th day of July, 1883, the defendant purchased of Uhlman & Block one car load of cattle at the agreed price of $1,296.27, and thereupon the defendant delivered to them his check for that sum, payable on the twenty-ninth of July. Before the commencement of this action Uhlman & Block sold ancl transferred all their right of action growing out of the transaction to the plaintiffs herein. On the trial the question was presented, whether the causes of action set out in the complaint were upon these contracts, or were for a tort for an alleged fraud in making the purchase. The cause of action arising out of the sale by the plaintiffs to the defendant is first set out in the complaint. The first allegation is in a paragraph marked number two and is as follows: “ The plaintiffs further allege that on or about the second day of Juty, 1883, the plaintiffs sold and delivered to defendant two car loads of cattle, at said city of Buffalo? for the agreed price of $3,207.60, which sum was the value of the said two car loads of cattle. That such sale was made to the defendant upon credit, and was evidenced by a promissory note of which the following is a copy,” the note is then set out in full. In succeeding paragraphs, numbered 3, 4, 5 and 6, it is alleged in substance, that, to induce the plaintiffs to give such credit and take such promissory note, the defendant stated and represented to the plaintiffs, that he was perfectly good and responsible ; that he was worth, in his own right, twenty such car loads of cattle, and that he did not intend to sell the cattle immediately, but intended to keep them in pasture on his own farm and await a better market, and that he had other cattle on his farm; and for those reasons he wanted credit, and that he was perfectly good and responsible. Then follows the other allegations, stating that the plaintiffs relied upon such representations and believed them to be true, and was induced thereby to give credit to the defendant. And, further, that the defendant was insolvent; and that such allegations were false and untrue, and were made with the intent and purpose of cheating and defrauding the plaintiffs; that the note remained unpaid, excepting a small sum, which was stated, and that the plaintiffs had susrained great damage by reason of the premises.
    The cause of action arising out of the sale of the other car load is charged in the second count as follows: “ The plaintiffs further allege that on the 17th day of July, 1883, Uhlman & Block sold to the defendant one car load of cattle for the agreed price of........ dollars, and that the said firm of Uhlman & Block accepted from the defendant a check, of which the following is a copy, on account of the purchase-price of said cattle to wit: ” Here follows a copy of the check. The allegations as to fraud are substantially the mime as those contained in the first count.
    The prayer for judgment is as follows: “ "Wherefore the plaintiffs demand judgment against the defendant for the sum of' $3,207.60, with interest thereon from the 2d of July, 1883, and the further sum of $1,295.27, with interest thereon from the 17th day of July, 1883, less the sum of $500, paid on or about the fifteenth day of October, together with the costs of this action.”
    The defendant, in his answer, admitted the making of the purchase of the cattle, and the giving of his notes and checks as alleged in the complaint, and admits that neither of them had been paid. He also denies the allegations of fraud, and claims that if any fraud had been practiced, as alleged, the same has been condoned and waived.
    The verdict was for the sum demanded in the complaint.

      John Gillette, for the appellant.

      Gharles A. Forsyth for the respondents.
   Barker, J.:

The defendant insisted upon the trial that the cause of action averred in the complaint was founded upon contract. We concur in this construction of the complaint. The further averments therein, that the defendant, for the purpose of inducing the plaintiff to give credit on sale of the cattle, made false and fraudulent representations as to his financial condition and solvency, which induced the plaintiff to deliver the cattle without payment, do not make the action one ex delicto. The rule of pleading established by the Code requires the complaint to contain a plain and concise statement of the facts constituting the plaintiff’s cause of action, and a demand for such judgment as the plaintiff supposes himself entitled to on the facts set foi-th therein. Nothing more is necessary in any case. The pleader is not required to state, either in the summons or the complaint, the class of action to which he 'conceives his cause of action belongs, as the same are denominated in judicial procedure. If the complaint states facts entitling the plaintiff to any relief whatever, then it is for the court to determine, when the question is properly presented, whether the cause of action averred is founded in contract or tort. The chai-acter of the cause of action must, in all cases, be determined by an analysis of the averments-in the complaint, together with the nature of the relief demanded. (Conaughty v. Nichols, 42 N. Y., 83; Ledwich v. McKim, 53 id., 307, 315; Neftel v. Lightstone, 77 id., 96; Elwood v. Gardner, 45 id., 349.)

If the cause of action as set forth is doubtful or ambiguous, every intendment is in favor of construing it in the nature of an action ex contractu. (Goodwin v. Griffis, 88 N. Y., 629.) If all the allegations relative to the defendant’s misrepresentations as to his pecuniary condition, and his fraudulent intent in making them, were struck out of the complaint, a cause of action founded on the defendant’s promises, as set forth therein, would remain, concisely and clearly stated, showing a cause of action founded on contract. The averments set forth in the second count clearly constitute a cause of action on contract within the rule of construction adopted by the courts for the purpose of ascertaining whether the same is one in contract or tort. It will be observed there is no averment that Uhlman & Block suffered any damages in consequence of the fraud alleged to have been perpetrated on them by the defendant. In all cases where the pleader avers the sale and delivery of property to the defendant at a fixed and agreed price, which remains unpaid,-and-also alleges he perpetrated a fraud in making the purchase, by means of false representations as to his solvency, and a question of doubt is presented as to whether it was the intention of the pleader to set forth a cause of action ex contractu or ex delicto, the omission to allege that damages have accrued to the plaintiff by reason of the fraud is accepted by the court as a circumstance indicating the purpose of the pleader to rely upon the contract as constituting the cause of action.

Since the amendment of section 549 of the Code, made in the year 1879, averments-of fraud on the part of the defendant in making the contract declared upon are pertinent and material, and cannot be treated as mere-surplusage. If the fraud is admitted by the defendant, or is sustained by proof when denied, the plaintiff is entitled to a body execution against the defendant on the judgment. The question • of fraud, when the cause of action is on contract, is collateral thereto, and presents a separate and distinct issue, which must be tried and determined with the issues presented on the question of the defendant’s liability on’the contract.

Section 549 now provides that the defendant may. be arrested “ in an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability. "Where such an allegation is made, the plaintiff cannot recover unless he proves the fraud; and a judgment for the defendant is not a bar to a new action to recover upon the contract- only.” Section 550 enumerates the cases in which the right to arrest depends upon matters extrinsic of the cause of action,’ and in which no execution against the person can issue, unless an order of arrest has been granted .and executed before judgment. These extrinsic matters need not be alleged in the -complaint, and if alleged are immaterial to the right of action and need not be proved upon the trial. (Segelken v. Meyer, 94 N. Y., 485; Code of Civil Pro., § 1487; Smith v. Duffy, 37 Hun, 506; Rail v. Conger, 1 How. Pr. [N. S.], 88.)

The allegation of fraud brought the case within the class of cases mentioned in subdivision 4 of section 549, which would entitle the plaintiff to a body execution on the judgment in case the charge of fraud was sustained by the proofs presented on the trial. The defendant admitted his liability on the contracts, and, as the judgment is not in excess of his indebtedness thereon, the judgment ■should be sustained, unless some error occurred on the trial relative to the issue of fraud. The defendant’s - evidence tended to prove that, after the maturity of the note and cheek, he and one of the plaintiffs had some negotiations relative to the matter of his indebtedness, in which the plaintiffs accused him of perpetrating a fraud in making the purchase, by fraudulently representing his pecuniary eondition. This accusation the defendant denied, but, at the same ■time, sought to compromise the debt on account of his insolvency. .Several propositions were made by the defendant as the basis of the ■compromise, but none of them were satisfactory and were rejected. The plaintiffs then made the defendant a verbal proposition in ■.substance, viz., that if he would pay them $1,500 — $500 in cash and $1,000 as soon as he could earn the same or secure that amount to their satisfaction — they would accept it in payment of the debts. ■This proposition the defendant assented to and paid the $500, which the plaintiffs indorsed upon the notes and checks in pro rata proportions. No other negotiations were had between the parties, .and at the time of .the commencement of this suit the $1,000 had ■not been paid or secured to be paid. Neither the note or check was given up, nor was a release in any form executed by the plaintiffs. At the time of the conversation relative to the proposed ■compromise, the plaintiffs were informed as to the financial ability .of the defendant at the time he purchased the cattle. This was the only evidence presented by the defendant in support of the ■defense that the plaintiffs had condoned the fraud.

Upon this question the court was asked to charge the jury that if they believed that there was an agreement made between the plaintiffs and defendant, by which the plaintiffs agreed, after they knew all the facts (assuming fraud to have been committed by ■the defendant on the purchase), to compromise or settle the transaction, and such an agreement was partly carried out, then, thereby, the plaintiff waived any fraud so committed and the plaintiffs ■cannot recover. This was refused, and the defendant excepted.

We are of the opinion that there was no error in rejecting the proposition. The general rule on that subject undoubtedly is, that where a defrauded party, with full knowledge of the fraud, settles (the matter in relation to which such fraud has been committed, and releases tlie person who defrauded him, he thereafter has no claim for relief, either at law or in equity, on account of such fraud. Or if the defrauded party, after such knowledge, subsequently confirms the original contract by making new agreements respecting it, he thereby condones the fraud and cannot pursue the wrong-doer. But we think that the facts which the defendant’s evidence tended to prove, were insufficient to make a case which falls within either of the rules stated. The plaintiffs promise to accept a lesser amount than was due them upon the original indebtedness was wholly executory and was not an accord and satisfaction of the defendant’s obligation. There was no new agreement made which superseded, changed or altered the terms of the original contract. The payment which the defendant made had the effect to reduce the damages which the plaintiffs sustained by reason of the defendant’s fraud, but there was no new agreement made which would merge the fraud in a new obligation on the defendant’s part. The money which he paid was but a part performance of the original undertaking, and it did not increase, alter or change the nature of the original transaction. We have examined the many cases cited by the learned counsel for the defendant in support of his argument, and fail to discover that they support his contention that the terms of the compromise relieved the defendant from liability to arrest on a body execution issued upon the judgment.

In Baker v. Spencer (47 N. Y., 562), the plaintiff had given the defendant a $500 note, and subsequently he suspected that he had been defrauded by the defendant, and refused to pay the same. Suit was brought thereon against the defendant and a judgment recovered, which was compromised by his giving a new note for $300, which he paid. The defendant afterwards ascertained, that he had been defrauded in the original transaction, and brought an action to recover the moneys paid upon the last named note and had judgment for the sum paid thereon. The court held, that if the plaintiff had knowledge of the facts constituting the fraud when he compromised the judgment rendered against himself it would have been a condonation of the alleged fraud, as it would have been merged in the new note. That case cannot, therefore, be brought within the principle of the rule upon which the defense of con-donation is based, for the reason that the new note was then received as an accord and satisfaction of tlie prior liability existing against the defrauded party.

In Obregon v. De Mier (54 How., 390), the defendant had American gold in his hands belonging to the plaintiff for the purpose of making a purchase of silver coin. Subsequently, and before any purchase was made, the plaintiff countermanded the order and drew a draft upon the defendant at sixty days, which was accepted, and it was held that by drawing the draft the plaintiff had elected to treat the defendant as an ordinary debtor, and the fiduciary relation was ended. There are many other cases of the same import.

In Nelson v. Blanchfield (54 Barb., 630), the plaintiff, after the perpetration of the alleged fraud, and with knowledge thereof, settled wtth the defendant and compromised the transaction by accepting the defendant’s note for a portion of the damages and a due bill for 200 shares of the capital stock in a corporation, and the absolute transfer of other shares in the same company, and it was held that it was a condonation of the tort and a waiver of the plaintiff’s right to arrest.

In Adams v. Sage (28 N. Y., 103), the parties were in controversy as to their rights, growing out of a transaction between themselves, and suits were pending in which the same matter was involved. Before trial they compromised their differences and executed releases to each other. In a subsequent action by one of the parties to set aside the release, it was held, as the complaining party had compromised and settled the original matter in dispute, with a full knowledge of the facts upon which the charge of fraud was based, he was not entitled to relief on the ground of the alleged fraud.

In these and the other cases cited by the learned counsel for the defendant, it will be found, on their examination, that the settlement and compromise entered into in each of the cases was based upon an agreement in the nature of an accord and satisfaction of an existing obligation and the substitution of new ones in lieu of the former ones, or that there was a formal release by the defrauded party of a previous legal obligation, with knowledge of the fraud charged. (Parsons v. Hughes, 9 Paige, 594; Alliance Ins. Co. v. Cleveland, 14 How., Pr., 408.)

The evidence produced by the plaintiffs, in support of the allegations of fraud, was of such a character as to make a case for the consideration of the jury, and they were specifically instructed by the court that they could not find a verdict for the plaintiffs unless the charge of fraud was established to'their satisfaction. As the cause of action -was admitted, and the jury found that a fraud was perpetrated by the defendant in the purchase of the cattle, the plaintiffs made a case within the rule laid down in the fourth subdivision of section 549, and the judgment should be affirmed.'

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

Judgment and order affirmed.


author: Rumsey, J.

text:
    FREMONT C. GAGE, Appellant, v. MYRON GAGE and Others, Respondents.

      Will — when devisees will he held to take as joint tenants and, not as tenants in common.

    This action was brought by one of the lieirs-at-law of Michael Gage, deceased, to obtain a construction of a clause in his will, which, after devising to his wife for her life the use', rents and profits of a certain tract of land, read as follows; “At the decease of my said wife I give, bequeath and devise the said described premises to my son, Fremont Gage, and my daughter, Lucy Olmstead, for their use and benefit during their natural.lives, and at their decease I give and bequeath the same to their heirs forever, to be divided equally between them, share and share alike.”
    Held, that Fremont and Lucy took under this clause as tenants in common and not as joint tenants, and that at the death of each the share of such tenant descended to the heirs of the one so dying in fee.
    That as the absolute power of alienation was not, by this clause, suspended for more than two lives in being, at the time it took effect, the will was valid.

      Campbell v. 1lawdon (18 N. Y. 412) followed; Purdy v. Hayt (92 id., 446) distinguished.
    Appeal by the plaintiff from a judgment entered in Yates county, upon the trial of this action by the court without a jury.
    The following opinion, upon which the judgment was affirmed by the general Term, was delivered by Mr. Justice Rumsey in the court below:
   Rumsey, J.

This action is brought solely for a construction of the will of Michael Gage, deceased, and the plaintiff, one of his heirs-at-law, claims in hostility to the will. There is no precedent for such an action, and if the objection had been taken the complaint must have been dismissed. (Chipman v. Montgomery, 63 N. Y., 221.) But as all the parties are here, and have agreed to the question presented and desire a decision on it, I will pay no attention to the objection which they have not raised. The second clause of the will is the one which is presented for construction, and which is claimed by the plaintiff to be void. By it the testator devised to his wife for her life the use, rents and profits of a certain tract of land, then followed a devise in these words: “ At the decease of my said wife I give, bequeath and devise the said described premises to my son, Fremont Gage, and my daughter, Lucy Olmstead, for their use and benefit during their natural lives, and at their decease I give and bequeath the same to their heirs forever, to be divided equally between them, share and share alike.” The plaintiff claims that this clause of the will is void, because it operates to suspend the power of alienation for more than two lives in being. Plis contention is that Fremont and Lucy take as joint tenants, and that, consequently, the devise to them creates a joint estate in them for their lives, and á life estate to the survivor of tjiem, with remainder over to their heirs, and that these two life estates, added to the estate for the life of the widow, suspend the power of alienation for three lives, and the devise is, therefore, void. The question is, then, do Fremont and Lucy take under this clause of the will as joint tenants or as tenants in common ? If they take as tenants in common, each has his share in severalty. There is no survivorship between them. At the death of each his share descends to his heirs in fee, and the power of alienation is not suspended for more than two lives in being, and that clause of the will is valid.

It is provided, by a statute of this Sta'te, that every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless expressly declared to be a joint tenancy. (3 B. S. [7th ed.], 2179, § 44.) This has been the policy of the law of this State since 1786, when the first law of that nature was passed. (1 Greenl., 207, § 6.) By these statutes the rule of construction which obtained at common law was precisely reversed, and instead of there being a presumption that a devise to two persons makes them joint tenants, the presumption is that they are tenants in common, and this is only removed by an express declaration that they take as joint tenants, or by words from which it clearly appears that there is an intention to create a joint tenancy; and nothing less than this will do it. (Purdy v. Hayt, 92 N. Y., 446, 453.) This intention can only be gathered from the expression used in the devise, and must be a necessary implication from it, and in no other way can the law be satisfied. In this case the devise is to Fremont and Lucy for “ their natural lives, and at their decease” to their heirs. There is nothing in the words used to indicate that they take as joint tenants. The case is precisely within Campbell v. Rawdon (18 N. Y., 412). The devise there was to the testator’s sons, George and Joseph, and to his housekeeper, Jane, for their natural lives, and after their decease ” to the heirs of John, The court say: “It is entirely clear that the three persons named took their life estates as tenants in common and not as joint tenants. On the death, therefore, of any one of the three the limitation over to the heirs of John Bill took effect as to an undivided third of the lands in question, and when another died then as to another third.” (P. 414.) There are several later cases which illustrate the strictness with which the statute is construed. (Purdy v. Hayt, 92 N. Y., 446; Mott v. Ackerman, Id., 539). My attention has been called to a decision of one of my brethren upon the third clause of this will, in which, upon language identical with that used in the second clause, he reaches the conclusion that the devisees- took as joint tenants. By reason of that decision I have examined this question with renewed care, but I can see no escape from the express words of the statute or from the case of Campbell v. Rawdon cited above. The counsel for the plaintiff, however, insists that although these parties take as tenants iii Common, yet there is a cross-remainder to each one after the death of his co-tenant, and for that’ reason the power of alienation is suspended for' three successive life estates. This claim is adverse to- the construction given in Campbell v. Pawdon. [supra), as shown by the quotation made above from that case. It is contended that the claim is supported by the case of Purdy v. Hayt [supra), but it will be seen that the court reached the conclusion that cross-remainders were limited to the tenants in common by a consideration of the intent of the testator, derived, not from the words in the devise, but from another provision of the will, postponing a sale of the premises until after the death of the last of the co-tenants. (See pp. 453, 454.) There is nothing in this case to take it out of the rule laid down by Judge Comstock in Campbell v. Rawdon (supra). The result is that the second clause of the will devises only two and not three successive life estates, and that it is not void as illegally suspending the power of alienation. The plaintiff fails, therefore, at the outset of his case and his complaint must be dismissed. Of course the plaintiff should pay costs to those of the defendants who have appeared. As there are four separate appearances by four different sets of defendants, who have appeared by different attorneys, I think each set should have a bill of costs. They all had interests to protect, and they were not connected in interest, and it was proper that they should appear separately. I will, therefore, give a separate bill of costs to each set of defendants. (2 Bliss Code, § 3229.)

On an appeal to the General Term by the plaintiff the cause was argued by:

J. Ilenry Metcalf.\ for the appellant.

Edwin Hicks, for Myron Gage, respondent.

II. M. Field, for Minnie L. Wyckoff, respondent.

Frank Rice, for Homer B. Gage and others, respondents.

Homer J. Reed, for Wesley Morley and others, respondents.

Present — Smith, P. J., Barker, Haight and Bradley, JJ.

Judgment affirmed, with costs, on the opinion of Pumsey, J., at Special Term.