author: Finch, J.

text:
    Henry W. Gray, Resp’t, v. George T. Green, App’lt.

      (Court of Appeals,

      Filed May 1, 1894.)

    1. PABTNEitsmr—Dissolution—Liquidation.
    Where, upon dissolution, no special agreement as to the liquidation is made, the partnership continues for that purpose, and'each of its members has an-equal right to the possession of its assets and is under an equal duty to apply them to the discharge of its debts.
    3. Same—Equitable action.
    While each is so engaged and acts with reasonable diligence and without discord, there is no occasion for the intervention of equity, until a final settlement is possible in which one party refuses or neglects to join.
    8. Same—Limitation.
    Until such refusal, the statute of limitations does not begin to run against a cause of action for an accounting.
    4. Same.
    Though one of the partners had made an overdraft before the dissolution, the statute does not begin to run before a refusal to apply it to the purpose of the liquidation.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made December 16, 1892, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.

      This action was brought for a dissolution of the firm of H. W. Gray & Co., stockbrokers, which was composed of the plaintiff and defendant. The complaint demanded that the partnership be adjudged dissolved, an accounting had and the plaintiff have judgment for a balance claimed to be due.
    The facts, so for as material, are stated in the opinion.

      Wheeler H. Pechham and Whitehead & Suydam, for app’lt; Elihu Root, for resp’t.

       Affirming 50 St. Rep. 316.

   Finch, J.

When this case was before us on a previous appeal, 125 N. Y. 203 ; 34 St. Rep. 732, we reversed the judgment and ordered a new trial holding that upon the facts then disclosed the cause of action proved under the pleadings accrued at the date of the dissolution of the partnership. It then appeared that such dissolution was effected by mutual consent, and that the duty of liquidation had been assigned solely to the plaintiff, a fact about which there was no controversy and which stood both found and admitted. It further appears that just before the dissolution the defendant had withdrawn from the assets, without right as between himself and his partner, the sum of about $10,000, and that a restoration of that sum to the hands of the liquidator was necessary to enable him to perform his duty in the payment of partnership debts or to reimburse "his own means so already applied. We determined, thereupon, that the latter had a right to that relief before the end of the liquidation and whenever circumstances made it necessary ; that he could reclaim it at once when the defendant denied his duty to restore it, and insisted upon holding it by force of an alleged settlement made at the date of the dissolution ; that the liquidating partner was not bound to wait till the close of the liquidation, but might sue at once to solve the disputed right, even though an accounting might be essential to the result. Looking back on that conclusion in the light of such criticism as it has received, and seeking to appreciate its just force, I am still satisfied that our determination was correct upon the situation as we then understood it, and upon the facts which appeared upon the record.

But a very great change has come over those facts, so great that I have examined again the earlier record to see whether I may not have misunderstood or misinterpreted them. That examination shows that the court explicitly, found as a fact the appointment of the plaintiff as “ the liquidating partner of the. partnership,” and the defendant’s answer denies liability for any overdraft, and alleges a settlement made at the date of the dissolution. But now the vital and fundamental fact upon which our previous opinion stood, which was the appointment and authority of the plaintiff as the exclusive agent for the winding up of the partnership affairs, has wholly disappeared, and with it has gone the further fact that there was a disagreement between the parties immediately upon the dissolution and an antagonism of claims, for now it is found that Gray was not made liquidator, that both parties acted as such, that both have acted faithfully, and that defendant has recognized that there was no settlement at the date of the dissolution by joining in the liquidation and asking credit in its results. How this remarkable and fundamental change in the facts occurred has been the subject for discussion on the argument. The defendant maintains that the evidence has not changed, but only the judgment of the trial court upon it; that the finding on the first trial was right and on this one wrong, and that the change had its origin in an effort to evade the judgment ■of this court I do not deem that criticism just. Looking over the evidence I feel bound to say that there is reasonable explanation of the change, and much in the conduct of the parties which is in accord with the latter finding, and that at all events it has such support in the proof as to put it beyond our review, and compel us to accept it as truth.

It follows that we can no longer treat the action as one by the chosen liquidator, whose right to all the assets has been denied, to reclaim such assets needed for the liquidation, and must regard it simply and wholly as an action by one partner after a dissolution to compel an accounting and adjustment of the partnership .affairs. The complaint readily admits of that construction, and, since the present findings disclose no other cause of action we ■must treat it as one for a final accounting. We cannot now say that the cause of action established was one which arose at or near the date of the dissolution. The fact which caused its origin at that date has been eliminated, and in its room no other fact requiring or justifying the intervention of equity is to be found until a much later period. In Gilmore v. Ham, 142 N. Y. 1; 58 St. Rep. 426, we had occasion to express concurrence in the doctrine of the Federal court that where a liquidation is proceeding with due diligence, without antagonism between the parties or cause for judicial interference, the right of an accounting and payment over of shares arises when the liquidation is or ought to be complete, because until then there can be no adequate ground of complaint. That is more obviously true where both parties are, as upon the findings they were here, authorized to wind up the affairs. Where no special agreement as to the liquidation is made the partnership, •although dissolved, continues for that purpose, and each of its members has an equal right to the possession of its assets, and are under an equal duty to apply those assets to the discharge of the debts. Robbins v. Fuller, 24 N. Y. 570. While each is so engaged, acting with reasonable diligence and without discord, there is nothing to complain of and no occasion for the intervention of equity until a final settlement is possible in which one party or the other refuses or neglects to join. Before that each may collect debts due, and if one is slow the other may be swift. Each may pay off liabilities until assets are exhausted, and neither can complain of the other until some emergency arises in which a right is denied or violated, or unduly delayed. The findings in the present case show a joint and amicable action down to a brief period before the commencement of the suit. An accurate and complete adjustment was delayed, without the fault of either party, by the impossibility of at least three collections ; and it was not until they were accomplished that the ultimate result could be known. While there was in the hands of defendant Green the amount of

his overdraft made before the dissolution, he could apply it to the purposes of the liquidation and pay out of it liabilities of the firm. There is no finding nor request to find that he refused to do so until his refusal to account. Gray could not disturb his possession until, at least, the fund was needed as an asset and Green refused to properly use and apply it. Upon the findings now made, it is impossible to hold, as we did upon the very different findings of the former trial, that the plaintiff’s cause of action is barred by the statute of limitations. I think he has so changed the facts as to make our previous conclusion inapplicable. In all these actions between partners, the application of the statute necessarily depends upon the circumstances of each particular case. The cause of action may arise, as in Brush v. Jay, 113 N. Y. 482; 23 St. Rep. 258, before the dissolution, and have that for its primary object: it may arise at or near the dissolution, when one is made exclusive-liquidator and his right to the possession of assets is denied and resisted. Gray v. Green, 125 N. Y. 203 ; 34 St. Rep. 732. It'may arise when the non-liquidating partner sues the liquidator, within a reasonable time after the dissolution, as in Gilmore v. Ham, 142 N. Y. 1; 58 St. Rep. 426 ; or where, as here, both parties act as liquidators with equal rights and duties, and neither is guilty of any wrong in the process, the cause of action may arise later, and necessarily will not exist until the liquidation is complete. . These are recent instances, but do not at all cover the varieties of form and incident which these actions may develop, so that always the running of the statute cannot be governed by any rigid or formal rule, but must depend upon circumstances. Those circumstances have, in this case, been so changed by the findings as to make it our duty to hold that the statute of limitations did not operate to-bar and defeat the action.

The judgment should be affirmed, with costs.

All concur, except Peckham, J., not voting.

Judgment affirmed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Joseph Benjamin Dimmick, as Trustee, etc., Resp’t, v. C. Godfrey Patterson, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed May 1, 1894.)

    1. Will—Construction.
    Where it is expressly provided that the share given by the testator, in a certain clause, to each of his children shall be governed and affected by the provisions contained in another clause “as fully and particularly as if such additions had originally constituted portions of said part," the provisions of the latter clause, so far as they be made applicable, must be read as though they were incorporated in the former clause.
    2. Same.
    Under such rule, it was held, in this case, that it was the clear intention of the testator that the son should become vested with one-half of all he was to take under the will at the age of thirty, and with the other half _ at forty, subject, however, to the life estate of the widow in the one-third set apart for her, and so that an assignment by him of his interest carried with it one-half of that third.
    Appeal from judgment of the general term of the supreme court in the first j udicial department, entered upon an order made November 7, 1892, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    This action was brought for the construction of the will of Joseph Benjamin, deceased.
    The facts and portions of the will, so far as material, are stated in the opinion.

      Henry Major, for app’lt; James B, My and Joseph 0. Brown? for resp’t.

       Reversing 50 St. Rep. 421.

   Earl, J.

“ Third. All the rest and residue of my estate, real and personal, and wheresoever situate, I direct shall be divided by my said executors into three equal parts as nearly as can be ; and to my said wife, during her natural life, I give, bequeath and devise the rents, issues, profits and income of one of the said parts ; and to my said daughter, during her natural life, I give, bequeath and devise the rents, issues, profits and income of one of said parts; and at the death of my said daughter I give, bequeath and devise the said last mentioned part to her heirs and assigns forever; and to my said son, until he shall attain the age of thirty years, I give, bequeatli and devise the rents, issues, profits and income of the remaining one of said parts ; and upon his attaining said age of thirty years, I give, bequeath and devise unto him, and to his heirs and assigns forever, the equal one-half of said part, and the rents, issues, profits and income of the other one-half of said part unto my said son until he shall attain the age of forty years ; and upon his attaining said last mentioned age, I give, bequeath and devise the residue of said part unto him and to his heirs and assigns forever. In case, however, of his death before the said part shall vest by the foregoing provisions in him, either in part of wholly, then I give, bequeath and devise said part or such portion thereof as may not have then vested in my said son, as aforesaid, unto his children, if he shall leave any him surviving, and to their heirs and assigns forever; but he shall not leave any children, him. surviving, and shall leave a widow him surviving, then I give, bequeath and devise unto such widow and to her heirs and assigns forever, the equal one-third of said part; and the rents, issues, profits and income of the residue thereof, not as aforesaid vested in my said son, I give, bequeath and devise unto my said daughter, during her natural life, and at her death the said residue itself unto the heirs of my said daughter and to their heirs and assigns forever; and if he die without leaving such widow or child or children him surviving, then I give, bequeath and devise the rents issues, profits and income of so much of said part as shall not as aforesaid have vested in him unto my said daughter during her natural life, and at her death, said part or portion thereof itself unto her heirs and their heirs and assigns forever.

“ Fourth. At the death of my said wife, t direct that the said part appropriated, as aforesaid, to her use, shall be equally divided, and the one-half thereof be added to the said part appropriated, as aforesaid, to the use of my said daughter, and the other half thereof be added to the part appropriated, as aforesaid, to the use ■of my said son, and each be governed and affected in every respect by the provisions of this my will, touching the last two mentioned parts respectively, as fully and particularly as if such additions had originally constituted portions of said parts.”

The widow died April 21, 1891. Joseph R Benjamin died in October, 1885, leaving three children, who are parties to this action. At the time of his death he was indebted to the defendant, 0. Godfrey Patterson, in the sum of $1,873.85, with interest thereon from July 21, 1884, for which at that date he gave his promissory note, and at the same time, for the, purpose of securing the payment of the note, he executed a written assignment to Patterson, under his hand and seal, by which he transferred to him so much of the estate belonging to and vesting in him under and by virtue of the provision of his father’s will, as should be sufficient and necessary to pay the principal of the note, together with the interest thereon, up to the time of the payment.

This is an action for the construction of the will, and there is now involved only the right or estate whch Joseph R Benjamin took under the fourth clause of the will. The courts below have held that as he died before his mother he took no vested interest whatever in the one-third which had been set apart for his mother, and that the one-half of that share, upon the death of his mother passed to his children, and that Patterson took no interest therein by virtue of the assignment executed to him in 1884; and Patterson is now the only appellant from the judgment below.

The reasoning of the court below is, briefly, that there was no direct gift to Joseph R. Benjamin in the fourth clause, and that, therefore, the rule was to be applied that where the only gift is found in the direction to divide at a future time, the gift is future and contingent, and the estate does not vest until the‘time for division arrives. Joseph R Benjamin was upwards of forty years old at the time of his death, and at the time of the execution of the-assignment by him to Patterson. Therefore, he had clearly become vested with the one-third of his father’s estate, given to him in the third clause of the will. It was there expressly provided that one-half of that third should vest,in him at the age of thirty, and the other half at the age of forty, and those shares could not vest earlier. As to them, his interests were contingent until the respective periods were reached, when they became absolutely vested in him. In the fourth clause there is not simply a direction to divide, but it is expressly provided that the share there given to each of his children should be governed and affected in every respect by the provisions contained in the fourth clause “ as fully and particularly as if such additions had originally constituted portions of said part.” The provisions of the third clause, so far as they can be made applicable, must be read as if they were incorporated in the fourth clause, and hence there is a gift of one-half of Joseph R Benjamin’s interest under the fourth clause to vest in him on his arrival at thirty ,and the other half to vest in him on his arrival at the age of forty, both shares, however, being subject to his mother’s life estate. We think, reading these two clauses together, it was the clear intention of the testator that the son should become vested with the one-half of all he was to take, under the will, at the age of thirty, and with the other half at the age of forty, subject, however, to the life estate of the widow in the one-third.

It, therefore, follows that the assignment of Joseph R. Benjamin to Patterson became operative and effectual, as now claimed by him.

The j udgment must, therefore, be reversed, so far as appealed from, and the case remitted to the special term for judgment in accordance with this opinion, the costs of the appellant in all the courts to be paid out of the fund in controversy.

All concur.

Judgment accordingly.


text:
    Frederick P. Forster et al., Resp’ts, v. Richard M. Winfield, App’lt.

      (Court of Appeals,

      Filed May 1, 1894.)

    1. Will—Gift to executors.
    Before a gift to executors eo nomine can be held to vest in them personally, the intention that it should do so must be plainly manifested.

      2. Same—Vendor and purchaser.
    Where the executors do not take title to the testator’s real estate as individuals, but, as such, contracted to sell a portion of such lands to the defendant, he is entitled to a cancellation of the contract and a return of the deposit made by him on its execution.
    Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order made May 1,1893, which directed judgment in favor of plaintiffs upon a case submitted under section 1279 of the Code of Civil Procedure.
    George H. Forster died in the city of New York in November, 1888, leaving a widow and two sons, Henry A. Forster and Frederick E. Forster, and also leaving a will, the sixth clause of which is as follows:
    “ Sixth. I appoint my brother, Frederick P. Forster, and my son, Henry A. Forster, executors of this will, and empower them to sell and convey all and any part of any real estate of which I may die seized or possessed, to compound, compromise, submit to arbitration and settle all claims against my estate, also all claims belonging to my estate, on such terms as they or the survivor, or the one who may qualify, shall see fit. It is my will that, in case it is necessary to prove this will in Massachusetts, or in any other state, where security is required from executors, that no bond or security shall be required from either of them for administration on-my estate.
    “ I direct my executors, out of the proceeds realized by them under the power of sale hereinbefore conferred, which they are to receive as trustees and in trust, to pay any debts that I may owe, including any mortgages to secure bonds heretofore given by me, whether such real estate has been conveyed to any member of my family or shall belong to me at the time of my decease; and the net residue after payment of all such debts, I give to my said executors and to the survivor of them as joint tenants. I have entire confidence that they will make such disposition of such residue as, under the circumstances, were I alive and to be consulted, they know would meet my approval.”
    Frederick P. Forster took letters testamentary on the will, but the other executor never qualified as such. The property of the testator at the time of his death consisted chiefly of vacant, unimproved and unproductive real estate, all of which was mortgaged ; and he left less than $1,000 worth of personal property. At the time of making his will, and at his death, his real estate was worth less than $104,000, and at the time of his death his debts were in excess of $91,500, besides mortgages on the real estate on which there was due upwards of $33,000.
    Frederick P. Forster, one of the executors, had been in partnership with the testator for many years, and the other executor was his eldest son. On the 19th day of November, 1892, these' plaintiffs individually entered into a written agreement with the-defendant to convey to him a lot of land described as “ Lot No. 287 on a map of 339 lots at Eiverdale and Mosholu, property of F. P. and H. A. Forster, for the price or consideration of $550,-000; ” and they agreed to give a good title in fee simple, free from all incumberances, with full covenants and warranty. The plaintiffs tendered a deed executed by them as individuals, proper in form to convey the lot, which the defendant declined, claiming that they were not able to convey the lot to him by a good, title in fee simple,
    The only title claimed by the plaintiffs is under the will. The facts were agreed upon as hereinbefore recited in a written submission to the general term, which also stated that plaintiff claimed judgment for a specific performance of the contract on the ground that the will of George H. Forster contains a gift to-them as individuals of the proceeds of the sale of the whole of testator’s real estate, after the payment of debts and mortgages;' that they have a right to elect between the proceeds of the sale of the testator’s real estate and the land itself, and that as they have elected to take the lot in question, instead of the proceeds of the sale thereof, .they are seized of the lot in question and are entitled to convey it to the defendant in fee simple absolute.
    The defendant claims judgment for the return of his deposit upon the ground : (1) That the gift to the executors was not for their individual benefit, but to them as trustees on a trust which is void because there is no beneficiary' or object of the trust designated, and the plaintiffs took nothing thereunder; (2) that the gift to the plaintiffs was not of the net proceeds of the sale of all of the testator’s real estate after the payment of debts and mortgages, but was only of the net proceeds, if any, of so much real estate as was necessarily sold to pay debts and mortgages over and above the amount of the debts and mortgages, and that all of the real estate not necessarily disposed of to pay debts and mortgages was undisposed of by the will and passed to the testator’s children by inheritance.
    Upon these facts the questions submitted to the court are:
    “1. Is the gift of the net proceeds of the testator’s real estate after the payment of debts and mortgages an absolute gift to the plaintiffs as individuals ?
    2. Is the gift of the net proceeds of the sale of the testator’s real estate a gift of the net proceeds of the sale of the whole of the testator’s real estate after paying debts and mortgages or only a gift of the net proceeds, if any, of only such real estate as is necessarily sold to pay debts and mortgages over the amount of such debts and mortgages?
    3. Are the plaintiffs entitled to collect the five hundred dollars from the defendant upon tendering him a short-form full-covenant warranty deed of the lot described in the agreed case, or is the defendant entitled to the return of the deposit of fifty dollars and the cancellation of his contract to purchase the lot in question? ”
    Upon the facts submitted the general term determined that the plaintiffs took title to the real estate as individuals, and that they were, therefore, able as such to perform their contract with the defendant and to give a good title, and it rendered judgment in favor of the plaintiffs for the specific performance of the contract.

      Edward E. Sprague, for app’lt; Foster & Speir, for resp’ts.

       Reversing 52 St. Rep., 325.

   Earl, J.

There is no technical rule of law to be applied in the construction of the 6th clause of this will. The intention of the testator, as that can be ascertained from the language used, is to control and have effect. Did the testator intend to vest Frederick P. Forster and Henry A. Forster, these plaintiffs, as individuals, absolutely with the title to the land or its proceeds? Before a gift to executors eo nomine can be held to vest in them individually the intention that it should so vest must be plainly manifested. In the language here used we find no such intention. He appoints the plaintiffs executors of his will and gives them a power of sale. Then he directs them out of the proceeds realized by them from the execution of the power of sale, which they are to receive as trustees and in trust, to pay any debts that he might owe, including mortgages, and then he gives the entire residue, after payment of such debts, to his executors and to the survivor of them as joint tenants. If there were no more it this clause of the will it would scarcely be claimed that the testator had manifested any intention to vest the executors individually with the title to the land or its proceeds. All the language used relates to them as executors, and to them only in their official capacity. The gift is to them as joint tenants, and to the survivor of them, thus showing clearly that he was dealing with them in their official capacity.

The last part of this clause does not qualify what precedes it. There he says: “I have entire confidence that they will make such disposition of such residue, as, under the circumstances, were I alive and to be consulted, they know would meet my approval.” This language does not necessarily imply that they were to take the land or its proceeds as individuals. It was just as appropriate in its relation to them as executors. lie gives the real estate or its proceeds to them upon some undefined trust, a confidence not disclosed. The testator evidently supposed that the secret trust would be carried out, and possibly that it could legally be enforced. While it is quite true that this trust is unauthorized, that no estate can, under this gift, upon this undefined and void trust, vest in the executors as trustees, and that they take a mere power of sale for the purposes specified in the will, yet these circumstances do not authorize us to hold that language which would otherwise be construed as a gift to them as executors, should be construed as a gift to them as individuals. It is sufficient to refer for the general rule of construction of such a clause in a will, to 1 Perry on Trusts, sec. 158, and Lewin on Trusts, page 149 and cases there cited. We find no authority which sustains a different construction.

Our conclusion, therefore, is that under this will the plaintiffs did not take title to this real estate as individuals, and that as such they cannot convey any title to the land in question to the defendant, and that, therefore, the defendant is entitled to a return of the deposit and a cancellation of his contract of purchase.

The judgment of the general term should, therefore, be reversed,, and judgment given for the defendant in accordance with this opinion with costs in the supreme court and in this court.

All concur.

Jndgment accordingly.


author: O’Brien, J.

text:
    John H. Ming et al., Resp’ts, v. Austin Corbin, App’lt.

      (Court of Appeals,

      Filed May 1, 1894)

    1. Appeal—Direction op verdict.
    An appeal, based solely upon an exception to the denial of a motion for the direction of a verdict in favor of the appellant at the close of all the testimony, cannot be sustained unless there were no controverted questions of fact and the jury did not correctly determine the questions of law, erroneously submitted to them by the court.
    2. Same.
    Though a question of law is erroneously submitted to the jury, there is no ground for appeal if they decide it as it should have been by the court.
    3. Contract—Severable.
    A contract is severable when the vendor’s part consists of several distinct and separate items, and the payment is apportioned to each item or is left to be implied by law.

      4. Same—Defense.
    In such case, if the purchaser has accepted one of the items, it is no defense to an action to recover the purchase price that the other items have not been delivered ; he is simply entitled to his damages, if any, for the non-delivery.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made March 17, 1893, which affirmed a judgment in favor of plaintiffs entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    This action was brought to recover a balance claimed to be due on a sale of certain bonds by plaintiffs to defendant.
    The facts, so far as material, are stated in the opinion.

      William J. Kelly, for app’lt; Charles A. Morgan, for resp’ts.

       Affirming 52 St. Rep. 71.

   O’Brien, J.

This action, commenced in 1878, is founded upon a business transaction between the parties in 1872. The litigation has been in progress ever since with varying results at the circuit and the general term, and this appeal requires us to review a judgment in favor of the plaintiffs recovered on the third trial. The general contention of each party upon the argument in this court is simple enough, but it involves the consideration of numerous facts and some questions of law, or, perhaps, mixed questions of law and fact, nor entirely free from difficulty. The verdict for the plaintiffs was for a balance of the purchase price of certain bonds sold and delivered to the defendant by the plaintiffs. The contention of the learned counsel for the defendant is that the judgment is erroneous for the reason that upon the undisputed facts the bonds were delivered pursuant to a contract, entire in its nature and legal effect, whereby the plaintiffs sold them to defendant with other securities which were never delivered. That the plaintiffs before they can be permitted to recover must show performance on their part of all the provisions of this entire contract. The only way that the defendant has raised any question of law is by a single exception to the denial of his motion for the direction of a verdict in his favor at the close of the testimony. In this condition of the record the appeal cannot be sustained unless it appears that there were no controverted questions of fact for the jury, but simply questions of law for the court, and that the jury did not correctly determine the questions of law erroneously submitted to' them by the court. If the case involved purely a question of law and nothing else, and if that question has been well decided, the judgment is not erroneous because the decision was by the jury and not the court. It is the duty of the court to decide the questions of law arising in the case, but if a question of law has been erroneously submitted to the jury, and decided as it should have been by the court, no one has been prejudiced by the error.

In order to get a clear view of the case it is necessary to refer to the facts with some detail. The plaintiffs were residents of Helena, in the territory of Montana, and engaged in buying and selling securities there. The defendant, was a banker and broker in New York. In March, 1872, one Sherwood, of Montana, being about to visit New York, had some conversation with the plaintiffs’ firm in regard to placing some of their securities. This led to a letter from him, written from the defendant’s office in New York under date of March 6, 1872, in which he informed the plaintiffs that he could place for them $5,000 county bonds and same amount territorial scrip at 85. Neither the county bonds nor the scrip were otherwise described, but the letter was written evidently after a conversation between •Sherwood and the defendant. On receipt of this letter the plaintiffs telegraphed Sherwood on the 19th of March in defendant’s care as follows: “Will sell five each bonds and territorial warrants, at eighty-five for face and interest, and give you two hundred. If wanted, telegraph.” This was the first step on the part of the plaintiffs in making any contract with the defendant, and it will be seen that the particular bonds, or the character of the warrants, or the rate of interest payable, Was not specified, but Sherwood testifies that his conversation with defendant related to bonds of the county of Lewis & Clark and convertible territorial warrants. The next day the defendant in Sherwood’s name telegraphed the plaintiffs as follows: “ Send them; draw on me.” Subsequently, on the same day, defendant send the following telegram, also in Sherwood’s name: “ Send bonds, cannot use warrants unless to be bonded in June.” The proof is that the plaintiffs intended to fill the order with warrants they then had on hand, some of which were fundable in June and some not, but on receipt of the telegram they regarded that part of the order relating to the territorial warrants as withdrawn.or at least suspended for the time, and that part relating to the bonds as required to be immediately filled. The plaintiffs’ position in respect to the warrants appears from the following letter written by them on the 20th of March, and addressed to Sherwood : ,

“Your two telegrams' of the 20th are at hand. We will ship $5,000 in bonds to-morrow night as we were unable to get them ready for to-night’s coach. All territorial warrants issued prior to Dec. 1st, 1871 (under which head ours come), are to be bonded in June at 12 per cent, interest, but from the tenor of your second •dispatch we think you understand' this fact, and are not certain whether ours are of the description or not. But as we are not certain about it, we will not ship till we hear further from you. As a matter of course we cannot allow you more than $100 for .sale of bonds alone. In case you want the warrants you must let us know. The bonds will reach you the day after this letter comes to hand.
“Yery truly yours,
“ J. H. Ming & Co.”

On the next day, March 21, the plaintiffs shipped the county bonds to the defendant of the face value of $5,300. Nothing more was heard from the defendant in regard to the warrants until April 9, when the defendant telegraphed the plaintiffs to “ send the five thousand territorial warrants,” but in the meantime, and on March 26, the plaintiffs sold them to another party .at eighty-five for face and interest, the same price for which they were to sell them to the defendant, and no warrants were ever delivered to the defendant. Now, it may be that there was a contract entire in its nature for the delivery of the bonds and warrants without any specification as to their precise character or the interest which they drew, but the defendant was not quite satisfied with the contract in that form. His subsequent telegrams and letters were in such terms as to warrant the jury in finding that they left the plaintiffs in ■doubt whether he required the delivery of the warrants or not. He certainly did not want them unless they were of a certain kind not specifically mentioned in the plaintiffs’ written offer to sell. It appears that there was then in the market two classes of warrants, one class convertible into bonds in June and the other payable by the treasurer in cash at some future time. The plaintiffs evidently acted in good faith in selling the warrants ■on hand to another party, as they got no more for them than the price which, in the end, is turned out that the defendant was willing to pay. The true situation was revealed to the plaintiffs more clearly by a letter addressed to them by the defendant under date of April 13. In this the defendant informed them that he had about six weeks before purchased the bonds and warrants from Sherwood. That he understood the bonds drew fifteen per cent, interest instead of twelve, and was astonished to find on their arrival that they drew but twelve. That his first impression was to hold them subject to their order, and on reflection concluded to place them at best rates without loss, hold funds subject to their order, and trust them to make the thing satisfactory when the situation was understood. That acting upon that he sold the bonds and placed to their credit $4,400, subject to their check, and had directed his cashier to send them a check book. There was then some discussion in the letter in regard to interest on the bonds accruing before they arrived in New York, which is not material. The defendant then proceeded to say that, “As to the adjustment of this matter generally, as to the misunderstanding, I shall leave it pretty much to you.” That the bonds were worth $350 less than he expected, and that no one was to blame for the misunderstanding. That he was willing to do his part to harmonize, so that no one would lose much and all be content. He then offered to deduct from the proceeds of the bonds a gross sum of $100, which he should retain himself, leaving $4,341.77 to be paid to the plaintiffs. He then added: “ I will be satisfied and try to make up the deficiency in something else. * * * Let me know if I am-not under all the circumstances pretty reasonable.” In a postscript to this letter the defendant said: “ I received your letter as to territorial warrants and ordered them forwarded (by telegram) some days ago.” The plaintiffs’ offer was to sell bonds and warrants. It was distinct and definite, and the parties became bound only when it was accepted by the defendant in terms equally definite. It is easy to -see that the caution with which the defendant worded his telegrams of acceptance produced in the minds of the plaintiffs the doubt and uncertainty which followed. At first he said “send them," which, of course, meant both bonds and warrants. But he immediately followed this by another dispatch to “ send bonds,” which meant the bonds alone, saying that he could not use the warrants unless fundable in June. But he omitted to say that even if they were that he wanted them sent or would accept them,, and it was not till April 9, nineteen days after the bonds had been shipped, that he gave an unequivocal order to ship the warrants. To hold that this completed a contract to be performed only as an entirety,and that could not be performed distributively, would, as it seems to me, be going quite too far.

On the 29th of April the plaintiffs accepted the defendant’s-proposition in the following letter: “ Your favor of April 13, notifying us of receipt of bonds is at hand. They were a long time on the road and we were quite anxious concerning them.. The misunderstanding as to the kind of bonds we offered for sale we regret, and we certainly supposed Mr. Sherwood and yourself were posted as to the new issue of bonds, 12s, in accordance with a law of the legislature of ’71, which forbids the' issue of any bonds hereafter at a greater interest than twelve (12) per cent.

“ Your letter states that you think that $4,341.77, which brings the bonds down to a net figure of 81^-c., would be fair for all concerned. In view of the fact that Sherwood’s telegram stopped the shipment of territorial warrants, a portion of which you could have used (as it afterwards seemed) to good advantage, and that the transaction was conducted by you without any profit, we accept, the change,”

The plaintiffs subsequently drew their check upon the defendant for $3,500, which was paid, and afterwards for the balance, which tlie defendant refused to pay for the reason that the warrants had not been delivered. One of the plaintiffs testified that, the bonds and warrants drew the same rate of interest and were of equal value in the market, so that it could not be said, as matter of law, that the warrants were the principal consideration which induced the purchase, or that the omission to deliver them frustrated the objects of the contract. The case could not have been taken from the jury on that ground. A contract is entire when the parties intend that the promise by one party is conditional upon entire performance of his part of the contract by the other party. The contract is said to be severable when the part tobe performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item or-is left to be implied by law. 2 Parsons on Cont.; Tipton v. Feitner, 20 N. Y. 423; Pierson v. Crooks, 115 id. 554; 26 St. Rep. 492.

Whether a contract is entire or to be taken distributively is often a question of intention and frequently one of fact. The original contract was for the delivery of two classes of securities at a common price, but it cannot be said, as matter of law, that the plaintiff then became bound to deliver bonds bearing a certain rate of interest or warrants fundable in June, and the subsequent correspondence related to these unsettled questions. The defendant, in his letter of April 13th, made a new proposition, which was subsequently accepted by the plaintiff, to accept delivery of a larger amount of bonds at a reduced price, and he promised to pay for them a specified sum, by honoring the sellers’ check at sight. This promise was not conditioned upon subsequent delivery of the warrants. There is nothing in the letter to warrant such an inference. The contrary conclusion finds some support in the fact that he agreed to pay the purchase price at once, and did pay $3,500, which he was not bound to do if the contract was entire and had not been severed by the correspondence. If the intention of the parties was not clear it was proper to submit the question to the jury. It could not be held that the defendant’s contention was conclusively established since at least opposing inferences and different conclusions were possible. The question was not whether the parties had made an entire contract in the first instance, but whether it was such at the close of the correspondence, or when the plaintiffs accepted defendant’s proposition to pay another price for another amount of bonds. Nor was the question one whether the defendant had or had not waived the delivery of the warrants, but whether the parties intended, in making and accepting the last proposition, that such delivery should precede the defendant’s obligation to pay any part of the purchase price of the bonds. The defendant’s right to insist upon the delivery of the warrants and to claim damages for the nondelivery may be conceded, but that would not prove that the contract was entire and had not been severed by the conduct of the parties. The defendant’s telegram to send on the bonds was open to the construction which the plaintiffs put upon it, that he wanted them at all events. Except for this dispatch the bonds and the warrants would doubtless have been sent together. It was competent for the jury to find that by this telegram, the defendant’s letter of April 13 and the plaintiffs’ acceptance of the proposition then made, even if the delivery of the warrants was not waived, yet the parties had expressed an intention that the bonds and warrants might be delivered each at different times ; that the parties had apportioned to each a different and distinct price or portion of the whole consideration; that the right to deliver one was not dependent upon the delivery of the other, and as no time of credit was given, payment for each class of securities was to be made upon delivery. The correspondence was fairly open to the inference which the jury evidently drew, that the parties intended to so change and shape the contract as to render it capable of performance on either side in parts, and so not to be taken as entire, but separate or divisible. The bonds to be delivered, accepted and paid for at once; the warrants subsequently, when the misunderstanding as to their form and character had been cleared away. That the contract had thus been severed by the parties is made clearer by the form of the pleadings. The plaintiffs alleged in their complaint the sale and delivery of the bonds at a specified price, and nothing else. The defendant did not plead non-performance of an entire contract as a defense, or at all, but alleged as a separate defense, “ by way of counterclaim,” that the plaintiffs had sold to him and agreed to deliver, among other things, convertible territorial warrants to be of the par value of $5,000 at eighty-five; that they had not delivered them, and demanded judgment dismissing the complaint and for his damages for failure to deliver. The defense was not that an entire contract for the sale and delivery of bonds and warrants was unperformed,but that the defendant had sustained damages in consequence of the non-performance of a separate contract to deliver warrants. But the court submitted to the jury, not only the defendant’s claim for damages under the counterclaim, but also the question whether the contract was entire or had been severed, which was not specifically raised by the answer at all, and the verdict was for the plaintiff. I think there was no error in this disposition of the case by the trial court; that the finding of the jury is conclusive upon this appeal, and that the judgment, should be affirmed.

All concur, except Peckham, J., dissenting.

Judgment affirmed.


text:
    The People ex rel. Lucy D. Kittredge et al. Resp'ts, v. John Mabie, 2d, et al., App’lts.

      (Court of Appeals,

      Filed May 1, 1894.)

    1. Villages—Ehlabgement of boundabies.
    The provision § 33, tit. 8, chap. 291 of 1870, as amended by chap. 870 of 1871, only applies to villages incorporated under said act, and not to those organized under a special chapter.
    2. Same—Act of 1884.
    Neither does the act of 1884 confer power to extend the boundaries of a village, specially chartered.
    Appeal from order of the general term of the supreme court in the second judicial department, made December 14, 1893, which affirmed an order of special term striking from the assessment roll of the village of Peekskill certain assessments against the relators.
    This was a proceeding by certiorari, under chapter 269 of the Laws of 1880, to reverse and strike from the assessment roll of the village of Peekskill, in the county of Westchester, certain assessments against the property of the relators which were alleged to be illegal.
    Said village was incorporated under a special act of 1816, which was amended several times and finally revised and consolidated in 1883 (Laws of 1883, chap. 117), by which act its boundaries were fixed and declared (§ 1), and have" not since been changed by any act of the legislature. On July 19, 1892, the board of supervisors of Westchester county, upon petition of the trustees of said village, passed an'act by which the boundaries of the village were enlarged so as to include the houses and certain lands of the relators. Under said act the defendants, as assessors of said village, included in the village assessment roll said property of the relators.

      Edward Wells, for app’lts; George F. Canfield, for resp’ts.

       Affirming 58 St. Rep., 460.

   Finch, J.

The village of Peekskill was organized under a special charter. Laws of 1883, chap. 117. It has no power to enlarge or extend its own boundaries, but was dependent for that expansion upon the authority of the legislature, exercised directly or through some permitted but subordinate agency. In neither mode was that authority given, and the claim of the village to the contrary, upon which it ventured to act, cannot be supported. That claim rests upon a construction of the general act for the incorporation of villages. Laws of 1870, chap. 291, as amended by Laws of 1871, chap. 870. That statute on its face and by force of its own express terms is confined in its application to and is operative only upon villages incorporated under it. Title 8, § 28. The further provision, therefore, upon which the appellant relies (§ 33), that “ the boards of supervisors of the several counties are hereby authorized and empowered to extend the boundaries of of any incorporated village within their respective counties,” must be read with the previous limitation as applicable, not to all villages, but to such as shall be organized under the general act itself. Otherwise the latter section is made inconsistent with the earlier one and the latter is contradicted. In framing a general act the object was to enable villages to organize under it without need of an application to the legislature for special power or authority, and a provision committing all questions of boundary extension to the county supervisors was natural and prudent. But special charters, under which separate villages were organized, had each their own peculiar features, and were intended to be left to the law of their organization, except so far as a later enactment applied, upon which also the appellant relies. That provides, (Laws of 1884, chap. 308) that “ the trustees and officers of any village of this state created by special charter shall have and possess the same powers as are prescribed in any general act for the incorporation of villages within this state, except as such charter may be in conflict with any provision or provisions of said general acts.” That statute does not go far enough for the the appellant’s purpose, or cover the situation. The added powers given are explicitly to the village officers and trustees, and not to the county supervisors, whose authority is in no respect touched or enlarged; and it is simply the power of officers under special charters to which is added the power conferred on similar officers under the general act. Under that the village authorities could not enlarge their own boundaries, and so were obliged to apply elsewhere. The powers of the boards of supervisors were enlarged by giving them subordinate legislative control over the boundaries of such villages as were formed under the general act, but no statute has authorized them to interfere with the lines of villages organized under special charters, and as to them the legislature has retained and not parted with its jurisdiction over boundaries. However broadly the word “ powers ” may be construed, as in Freligh v. Saugerties, 70 Hun, 589 ; 53 St. Rep. 741, in which it was interpreted with great liberality, it is not elastic enough to add to and reach the powers of county supervisors, not named or referred to in the act.

The argument, that since the general act allows the county board to legislate “ upon the petition ” of the village officers, a power of petition is given to them which the law of 1884 carries over to officers under special charters, and, therefore, by implication we can say that the supervisors gained authority to act upon and grant the request, scarcely needs discussion. The clause referred to was merely a limitation of the authority conferred upon the supervisors, a condition precedent to their action, and not the grant of a new power to the village officers. Both sets of such officers, those under the general act and those under special charters, could petition for a change of boundaries, but one had to go with their requests to the supervisors and the other to the legislature.

It follows that the village was not enlarged, and the assessments founded upon that supposition were properly stricken from the roll.

The order should be affirmed, with costs.

All concur.

Order affirmed.


author: Gray, J.

text:
    The People ex rel. The American Bible Society, Resp’t, v. The Commissioners of Taxes and Assessments for the City and County of New York, App’lt.

      (Court of Appeals,

      Filed May 1, 1894)

    Taxes—Release.
    The legislature may release property which has been assessed for taxation, and "may exercise this power* in any way and at anytime during and before the completion of the proceedings for taxation.
    Appeal from order of the general term of the supreme court in the first judicial department, made March 6, 1894, which affirmed an order of special term directing a writ of mandamus to issue to defendants, commanding them to remit of the tax of 1893 levied on the real estate of the relator so much thereof as was assessed upon that portion of the real estate used by the relator exclusively for its own purposes.
    The facts, so far as material, are stated in the opinion.

      George S. Coleman, for app’lt; Frederick S. Duncan, for resp’t.
   Gray, J.

The relator was one of the religious societies, or corporations, referred to in chapter. 498 of the Laws of 1893, and claims to have been exempted from taxation for the year 1893, by force of the provisions of that act. Section I provided that the real property of such a corporation, “ shall be exempt from taxation ” and section II provided that this act shall take effect immediately.” It became a law, with the governor’s approval, on April 29th, 1893. The sole question presented was whether the language of the act should be construed to have prevented any tax from being imposed or collected for the year 1893. We think that the order of the special term, directing the commissioners (through the writ of mandamus) to remit the tax for that year, has been properly affirmed below. It is true that there is nothing in the act authorizing us to give retroactive effect to its provisions; a construction which, in the absence of language containing an unmistakable direction, legislative acts should not receive. But we are not called upon to give such a construction. The point is whether immediate effect could be given to the legislative provision. Could property, which then was in the course of assessment for purposes of taxation, be withdrawn therefrom ? All we have as to the legislative intention, when the act should be operative, is what we read in the second section. While the legislature commanded that its act should have immediate effect, we should not, and we need not here, infer any intention to discharge or release a tax, if, under the general tax laws, the proceedings for taxation had arrived at that stage, when the assessment was an unalterable fact, and beyond the power of the taxing officers to change. The legislative body will be presumed to be acquainted with the established plan of taxation throughout the state and to know of the processes, or successive steps, prescribed by law to be taken by taxing officers, in the assessment of property, subject to taxation, and in the imposition of the amount of the tax. They are presumed to know that under the plan, as prescribed for the city and county of New York in the Consolidation Act, there are limitations of time, which bear upon the liability of persons and the assessable character of property and the general powers of taxing officers. In the city and county of New York the books, which contain the “ annual record of the assessed valuation of real and personal estate,” are opened upon the second Monday of January and remain open until the first day of May. Within that period of time the commissioners have the power to correct the books; but on the first of May they are closed by direction of the statute. We have had occasion to consider the law, which thus regulates taxation in the city and county of New York, and it must be regarded as settled that the assessable character of property is fixed on the second Monday of January. There is power conferred upon the commissioners by the statute, during the time the tax books are open, to correct them with respect to valuations ; but, on the first day of May the books are closed by law, and thei'e is no provision for the amendment, or alteration of the record. Consol. Act, § 817 ; Sister of St. Francis v. Mayor, etc., 51 Hun, 355 ; 20 St. Rep. 985; affirmed 112 N. Y. 677; Association for Colored Orphans, etc., v. Mayor, etc., 104 Id. 581; 6 St. Rep. 477.

The judicial functions of the tax commissioners terminate upon the first day of May, and thereafter the duties are of a clerical nature. But it is indisputable that the legislature may release property, which has been assessed for taxation. The power over the subject is unlimited and can be exercised in any way and at any time during the proceedings for taxation. If it is claimed that a legislative enactment has arrested those proceedings at a stage when, by the general law, the tax books are closed and the assessable character of the property has been fixed, beyond the power of the taxing officer to alter, the language must be very explicit to warrant them in thereafter remitting the tax. In the Colored Orphan Asylum case, supra, the property, for which exemption was claimed, was acquired on July 31st and its claim was refused, upon the ground that as with the closing of the record on the first day of May the power of the amendment or alteration had ended, the exemption given in the Eevised Statutes must be regarded as prospective in its operation. In the present case, however, we have the command of the legislature, to exempt the relator, given at a time when the records, or tax books, are recognized by the general law to be open for correction. The implication, from the statutory direction that they shall be open, is that up to the date for their closing no basis is absolutely fixed for extending the amount of the tax upon the assessment rolls. We feel constrained to hold that the act having been given immediate operation, at a time when the tax books were directed by law to be open, the effect was to withdraw the property affected from all liability to taxation, and that the tax commissioners actually had a warrant in law for the correction of the tax books by removing therefrom the entry of the property in question. "We recognize the possibility that our decision may operate to release a large amount of property assessed for 1893, and that our construction ascribes to the legislature an intention which it may not, perhaps, have had. However that may be, we have, as our only guide, the language of the act; which, for being imperative-as to the time for its provision to'take effect, must be considered with reference to the existing condition of the proceedings for the imposition of a tax. That it would have been better legislation, by clear and appropriate language, to prevent any doubt with reference to the application of the exemption to pending taxation proceedings throughout the state, is one of those' reflections not infrequently suggested by a consideration of legislative work.

The order should be affirmed, with costs.

All concur.

Order affirmed.


text:
    The People ex rel. John S. Coyle, App’lt, v. James J. Martin et al. as Police Commissioners, etc., Resp’ts.

    (Court of Appeals,
    Filed May 1, 1894.)
    APPEAL-DECISION OF POLICE COMMISSIONERS.
    The decision of the board of police commissioners removing: a patrolman from the police force, though affirmed by the general term, may be reviewed and reversed by the court of appeals, where there is no real conflict in the evidence and there is a substantial failure of evidence to sustain' the decision.
    Appeal from order of the general term of the superior court-of the city of New York, made April 3, 1893, which affirmed proceedings of the respondents dismissing the relator from the police force, and dismissed a writ of certiorari to review such, proceedings.
    The facts, so far as material, are stated in the opinion.

      Louis J. Grant, for app’lt; George S. Coleman, for resp’ts.

       Reversing 52 St. Rep., 939.

   Earl, J.

The relator, a patrolman, was dismissed from the police force of the city of New York for “ conduct unbecoming an. officer,” in that “ on the 26th. day of April, 1892, he had an altercation with patrolman Mildrum, during which he drew his club and struck Mildrum on the head, causing a slight scalp wound, during his hour of duty and this proceeding by certiorari was instituted to review the determination of the police commissioners.

While the general term of the court below had power, under § 2140 of the Code, to weigh the evidence given before the police commissioners upon the trial of the relator, and, if it found that the preponderance thereof was against the facts found, to set aside the determination there, made, we have frequently decided that this court has no such power. People ex rel. Murphy v. French, 92 N.Y. 306 ; People ex rel. Flanagan v. Board of Police Com’rs, 93 id. 97 ; People ex rel. McCabe v. Board of Fire Com’rs, 106 id. 257 ; 8 St. Rep. 695 ; People ex rel. Hogan v. French, 119 N. Y. 507 ; 30 St. Rep. 67. If there is any evidence fairly sustaining the determination of the police commissioners we cannot interfere therewith.

But where there is no real conflict in the evidence, and there is thus a substantial failure of evidence to sustain the determination, we ought, in the exercise of our jurisdiction, to review and reverse it, and we think this is such a case.

At the date mentioned the relators’ post extended from 130th street northerly along Seventh avenue, and Mildrum’s post extended from that street southerly along the avenue. The relator testified that while he was at the southerly end of his post Mildrum came to him and without any provocation applied to him vile and abusive epithets, which he specified in his evidence; that Mildrum rushed at him and grabbed him by the throat and attempted to strike him with his club ; that he, the relator, acted in self-defense, and in doing so touched Meld rum with his club; that he broke loose from Mildrum and started to run away, and did run away from him; that Mildrum drew his pistol from his pocket and chased him and fired three shots at him ; that as Mildrum was attempting to fire the fourth shot he turned and grabbed the pistol and the hammer thereof came down and cut his hand ; that then, considering his life in danger, he struck Mildrum with his club, and that he acted from the beginning to the end of the affray in self defense. He also stated that he had a pistol in his pocket during the affray, but did not draw it.

Louis Baecht and John F. Sullivan both testified that they saw the entire transaction between the relator and Mildrum, and they confirmed the evidence of the relator in every material particular. Their evidence showed that Mildrum was the aggressor, and that the relator was acting in self defense.

Owen Mehan, a witness for the relator, did not see the commencement of the affray, but he testified that when he came in view of the parties he saw Coyle running across the avenue and that Mildrum followed him and fired three shots at him ; that after Mildrum had fired the third shot Coyle turned and grabbed the pistol and then struck Mildrum with his club ; that he was acting on the defensive and his life was in danger.

William H. Wharton, a witness called against the relator, testified that he reached the scene of the altercation after it was about over. He saw blood on Coyle’s hand and no marks whatever on Mildrum.

. Cornelius Gr. Yan'Reypen, called as witness against the relator, testified that he did not see the commencement of the altercation; that be heard the pistol shots and saw the relator and Mildrum clinched and scuffling in the avenue—evidently having reference to the time after the firing of the three shots, when the relator turned and siezed the pistol in the hands of Mildrum. He said that Mildrum was the larger man and that Coyle then and there, complained that Mildrum had attempted to shoot him.

Patrick Coyle testified that on the evening of April 26th he saw Mildrum at the station house in the presence of his son, the relator and that Mildrum speaking of the altercation, then said : “ I am "to blame for it. I lost my head. One thing, I am glad I didn’t kill him ; ” and in this evidence the witness was corroborated by the relator.

I have now called attention to all the material evidence in the ■case except that of Mildrum, and it shows a most outrageous assault by Mildrum upon the relator; that the relator acted in self-defense, and that, instead of deserving condemnation for what he did, he was entitled to commendation for his forbearance. One appointed to the police force does not thereby lose his manhood, and when abused and assaulted he has at least the sacred right of self-defense; and upon this evidence it cannot be said that the relator transcended the bounds of a proper self-defense.

The evidence of these witnesses is not contradicted in its essential features by Mildrum. He claimed that the relator at the time of t-he commencement of the altercation was about twenty-five feet south of his own post, on his, Mildrum’s post, where he bad been standing for a few minutes. He testified that he walked across the avenue, and asked him what he was doing there. It does not appear that he had any right whatever to interfere with the relator. The record does not disclose that there was any rule or regulation of the police department which authorized him to drive or eject the relator from his post. He testified that he did not commence the altercation, and denied the use of the vile language testified to by the other witnesses. He admitted that a pistol was drawn during the affray, but declined to answer by whom it was drawn. He admitted that Coyle ran away from him, but declined to answer whether he fired three shots at him while he was running. He admitted that Coyle grabbed his pistol and that he ran after him about fifty feet; but he did not deny that he attempted to grab the relator by the throat. While he denied some of the details testified to by the other witnesses, the material and vital facts testified to by them stand uncontradicted. This is a case where, if the testimony of Mildrum furnishes any evidence in conflict with all the other evidence in the case, it is simply a scintilla, entitled to no weight and wholly insufficient to uphold the determination of the police commissioners.

Without, therefore, disturbing or departing from the rule laid down in the cases above cited, we think the order of the general term and the determination of the police commissioners should be reversed, with costs in the supreme court and in this court to the relator.

All concur, except Andrews, Oh. J., not voting.

Ordered accordingly.


author: Peckham, J.

text:
    Alfred Blewitt, App’lt, v. William J. Booram et al. Resp’ts.

      (Court of Appeals,

      Filed May 1, 1894)

    Evidence—P ahol.
    In an action upon a contract under seal, but which does not require a seal for its validity, it is competent for the defendant to show, by parol evidence, that the instrument was executed upon condition that it was not to operate as a contract until the performance by the plaintiff of some prescribed act.
    Appeal from general term of the superior court of the city of New York, entered upon an order made April 6, 1891, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term dismissing the complaint.
    The nature of the action and the facts, so far material, are stated in the opinion.

      Isaac N. Miller, for app’lt; James L. Bishop, for resp’ts.

       Affirming 39 St. Rep. 244.

   Peckham, J.

This action was brought to obtain an accounting from defendants and for damages sustained by plaintiff by reason of the violation of a certain contract, under seal, entered into between the parties to the action in relation to the right to manufacture and sell a certain kind of binder for books, called the “ Common Sense Binder,” and for which letters patent had been issued.

The defendant admitted the execution of the contract, but alleged that it had been executed upon the parol condition that it was not to operate as a contract until the plaintiff acquired the interest of a third person in the patent spoken of in the agreement, and it was alleged that the plaintiff had never performed the condition. Evidence showing that the contract was executed with the condition above stated, and that the condition had never been performed, was offered upon the trial and received by the court, under proper objection and exception on the part of the plaintiff, and, after the evidence was in, the court found the fact in accordance with defendants’ contention and gave judgment dismissing the complaint, which was affirmed at the general term, and from such affirmance the plaintiff has appealed to this court.

The case of Reynolds v. Robinson, 110 N. Y. 654; 18 St. Rep. 235, holds that a writing which is in form a complete contract, and which has been delivered, may be proved to have been delivered upon a parol condition that it was not to become a binding contract until the happening of some event in the future, and that such event had not occurred. The cases cited in the brief opinion fully bear out the statement.

The plaintiff here contends that the authority of that case-must be confined to contracts which are not under seal, and, as the contract here was a sealed one, the case has no application.

Of course the mere presence or absence of a seal upon a writing would seem to be a matter of the smallest importance upon the question now under consideration. The same reasons would apply with equal force for receiving or rejecting the contemporaneous parol understanding where the writing was sealed, as where the seal was absent.. It is a question in each case as to whether there has or has not been an executed and completed agreement or act. Many of the old English cases held the doctrine that where-there was a writing bearing upon its face the marks 'that it was. fully and completely executed, if there were a delivery of the writing to the party himself, there could be no parol evidence that the delivery was upon a condition or escrow. The reason assigned in many cases was that such evidence would lead to the result that a bare averment without any writing would make void every deed. The word deed was not used in its restricted sense of a written instrument conveying land, or some interest therein, but in the sense that it was a writing of the party, and hence his act or deed. In Williams v. Green, 1 Croke’s Eliz. 884, the action was one of debt on a bill. There was no seal attached. The plea was that the bill had been delivered to the plaintiff as a schedule (a memorandum), upon condition that if plaintiff delivered to defendant a horse upon a certain day, then the schedule was to be his deed, otherwise not, and that plaintiff had not delivered the-horse. The plaintiff demurred to the plea, and it was resolved by the whole court to be a bad plea, for the deed could not be-delivered to the party himself as an escrow, because then a bareaverment without any writing would make void any deed. The-decision was not based upon the question of a seal, and the paper was referred to as a deed simply by way of description of an act of the party in delivering a written instrument which ought not to be rendered void by a parol contemporaneous understanding or" agreement. The reason would apply with equal force to all written instruments, sealed or unsealed. Other cases of a nature-where the writings needed not to have been under seal, and where it was held that they could not be delivered conditionally to the party to the instrument, are cited in 2 Coke upon Lyttleton, 276 (Philadelphia ed., 1827 ; 1st Am. from last London ed.). On the other hand, there is one case which decided that a writing obligatory could be delivered in escrow to the obligee, Hawksland v. Catchel, 1 Croke’s Eliz. 835, but after differences of opinion among j adges, it was finally resolved otherwise in later cases, as stated in Coke, supra.

These cases show that the rule preventing parol evidence of a delivery to the party upon condition, was not founded upon the presence of a seal to the writing, but the rule was adopted because, when the words were contrary to the act (of delivery), the words were regarded as of no effect, for it was not what was said, but what was done, that was in such case to be regarded. Hence, a delivery to a party was said to be inconsistent with any condition attached to it, and a condition was in fact a contradiction of the writing, and parol evidence of the condition was, therefore, inadmissible. A different view was subsequently taken of this act of delivery. The courts said it was not a contradiction of the terms or legal effect of the writing, but it was proof simply that no contract had in fact been entered into. They said that the production of a writing purporting to be an agreement by a party, with his signature attached, afforded a strong presumption that it was his written agreement, but if at the time the parties agreed that the writing was not to take effect as an agreement until the happening of some event, in other words, that it was agreed upon conditionally, then it should not take effect until the happening of the event or the fulfilment of the condition. Pym v. Campbell, 6 Ellis & Black, 370; S. C., 88 Eng. Com. L. 370. Crompton, J., in the above case, in speaking of an instrument under seal, said it could not be a deed until there was a delivery, and when there was a delivery that estops the parties to the deed, which was a technical reason why a deed could not be delivered as an escrow to the other party. He said the parties may not vary a written agreement, but they may show that they never came to an agreement at all, and that the signed paper was never intended to be the record of the terms of the agreement, for they never had agreeing minds. In truth, however, the court of exchequer, in Bowker v. Burdekin, 11 M. & W. 127, had already distinctly stated that a ■delivery of a deed to a party might be in escrow, even though the condition were not in express words, if, from the circumstances attending its execution, it could be inferred that it was not delivered to take effect as a deed until a certain condition were performed. Baron Parke said in that case it was now settled law, ■though it was otherwise in ancient times, that in order to constitute the delivery of a writing as an escrow, it was not necessary that it should be done by express words, but you are to look at all the facts attending the execution, though in form it was an absolute delivery, if it can be reasonably inferred that it was delivered not to take effect as a deed till a certain condition was performed, it will still operate as an escrow. The deed was in that case delivered to the party who was to take a benefit under it, and while the court held it was in fact an absolute delivery, the learned judges admitted that it might have been delivered conditionally to a party, and, if so, it would not take effect until condition performed. And in Gudgen v. Besset, 6 Ellis & Bl. 986, the lease of premises for a term of years was signed, sealed and delivered to the party, although after such delivery the grantor retained the lease in his possession. The agreement was that it was not to take effect until lessee paid one hundred pounds, fifty only being then paid. The court from all the facts in the case held that the clear inference was that the instrument should not operate as a lease until full payment, and if there were such'an agreement, although no express words of delivery as an escrow were used, it would not operate as a deed until payment was made, and consequently the lessee, although in possession of the premises, was tenant only from year to year, and not tenant under the deed, Campbell, Ch. J., holding that the formality of delivering the instrument to a third person as an escrow was not essential when it was intended to operate as such. Looking at all the facts the learned judge said it must have been the intention of the parties that the instrument should not operate as a lease till the money was paid, and that neither party intended that the interest in the-term should vest till then.

As a result of the examinaton of the English authorities I think it is clear that the presence o£ a seal on a writing was not the reason for prohibiting parol evidence of a condition attached to a delivery to a party but that where parol evidence was disallowed it was on the tneory that otherwise it would be contradicting the writing. The rule was overthrown in England by the cases cited, which permit parol evidence that the delivery of a writing, although under seal, may be shown to have been under an .agreement .that-it was not to operate as such until the happening of some future event.

In this state in Lovett v. Adams, 3 Wend. 380, it - was said by Savage, Ch. J., that if a bond be signed and put into the hands of the obligee or a third person on the condition that it shall become obligatory upon the performance of some act of the obligee or any other person, the paper signed does not become the bond of the party signing the same until the condition precedent shall be performed. Until then there is no contract. The court held that evidence of such facts should have been admitted. So the presence of a seal was considered no obstacle to a parol proof that the writing was delivered to a party to the instrument upon a condition which had not been performed. The rule in this state regarding deeds conveying real estate, or an interest therein, or agreements for the sale thereof, is that a delivery cannot be made to the grantee or other party thereto conditionally or as is said in escrow, and when delivered to a party the delivery operates at once and the condition is unavailable. Gilbert v. North Amer. Fire Ins. Co., 23 Wend. 43 ; Worrall v. Munn, 5 N. Y. 229 ; Braman v. Bingham, 26 id. 483 ; Wallace v. Berdell, 97 id. 13, 25.

Whether there is any sound basis for a distinction between cases relating to real estate and other kinds of written instruments, it is not now important to inquire, for the rule that instruments of the former character cannot be conditionally delivered to a party is too firmly established in this state to be overruled or questioned. In the case in 23 Wend, supra, Bronson, J., says it is one of the cases in which the law fails to give effect to the honest intention of the parties, for the reason that they have not adopted the proper legal means of accomplishing their object. In Arnold v. Patrick, 6 Pai. 315, the writing involved was a deed of land, and the remark of the chancellor, that the rule applied to any sealed instrument, was beyond the question. He refers as authority for his statement to Thoroughgood’s case, 9 Coke, 137a, reported in vol. 5, at page 241 of the London ed. of Coke’s Reports, 1826.

The writing was in that case a deed conveying lands, bu casest are referred to in the report where bonds were thus delivered, and it was held that no condition could be attached to a delivery to a party. I have already stated, in reviewing the English cases, that the rule was not founded upon the presence of a seal, but because the delivery could not be contradicted by parol evidence of a condition attached thereto. Those old Englsh cases have been passed over and substantially overruled by the English courts, so far as to hold that the delivery even of a sealed instrument to a party could be made conditionally. And the case in 3 Wend., supra, shows that a bond could be delivered conditionally to a. party.

In Cocks v. Barker, 49 N. Y. 107, parol evidence was admitted to show that the bond was delivered conditionally, and the trial court found against that fact. In this court it was stated that the evidence was not admissible, because a deed could not be delivered to a party upon condition, citing Worrall v. Munn and Gilbert v. Ins. Co., supra. It was not necessary to the decision, and I think the doctrine that a bond could not thus be delivered is not borne out by the cases in this state, and certainly not by the later cases in England already cited.

But a bond imports the existence of a seal, and the latter is requisite to the legal existence o£ a bond.

The instrument in this case was an ordinary agreement, not requiring a seal for its validity, and we think the rule as to sealed instruments, however far it may be carried in regard to such instruments as require a seal for their validity, should not be extended in any event to those cases where the instrument is in law not in the nature of a specialty, and where the presence of a seal is totally unnecessary to its validity.

I think, myself, the rule should not extend beyond what seems to be the settled law in this state in regard to deeds or writings conveying or relating to the conveyance of real estate, or some interest therein, but in this case it is not necessary to now go any further than to hold the rule inapplicable to an instrument not in any war relating to or affecting real estate, and which does not require a seal for its validity, the seal being, in such case and for this purpose, regarded as surplusage, and the instrument should be held to come within the rule laid down in Reynolds v. Robinson, 110 N. Y. 654; 18 St. Rep. 235 ; already cited.

The other cases cited in plaintiff’s brief have been examined. With the exception of Van Bokkelen v. Taylor, 62 N. Y. 105, they hold simply that parol evidence of a contemporaneous parol agreement, outside of and varying the terms of a written contract, is not admissible. We do not hold the contrary, but simply - hold the parol evidence of an agreement that the writing should not take effect upon delivery until the happening of some condition is admissible in such a case as this. Van Bokkelen v. Taylor, supra, was a case of a composition release by creditors of a common debtor, and it was held that evidence of a secret condition attached to the execution or delivery of the release by one of the creditors was inadmissible, as such an agreement in regard to a composition release was void in any event. The case does not touch the question here involved.

We have looked through the other exceptions set foitli in this-record and find none that calls upon us to reverse the judgment, and it should, therefore, be affirmed, with coste.

All concur.

Judgment affirmed.


text:
    The People, Resp’t, v. Henry E. Kane et al., App’lts.

      (Court of Appeals,

      Filed May 4, 1894.)

    Criminal Code—Section 654 op Penal Code.
    The destruction of a boat, with which a persistent, repeated and defiant trespass had been perpetrated, if done in protecting a pond from such trespass, is justifiable, and does not warrant the conviction, under § 654 of the Penal Code, of persons acting under the instructions of the owner.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made Decembér 1, 1893, which affirmed a judgment of the court of sessions of Suffolk county, entered upon a verdict convicting defendants upon an indictment under the Penal Code (§ 654) •charging defendants with unlawfully and willfully destroying a boat belonging to one Lewis S. Davis. It appeared that Davis had, without right, placed the boat upon a mill pond, which was the property of one Edward Kane. The latter put the pond in charge of his son, one of the defendants, with instructions not to allow trespassers upon it. Davis owned a farm adjoining said pond, and persisted in sailing his boat thereon, although several notices had been given him to remove it from the pond. On the day it was destroyed defendants found it afloat, fastened by a chain •extending from its bow to a tree on Davis’ land ; they went in another boat and, without going on Davis’ land, unfastened the chain took the boat out of the water and broke it up.
    Further facte are stated in the opinion.

      Livingston Smith, for app’lts; Walter H. Jaycox, for resp’t.

       Reversing 56 St. Rep. 887.

   Finch, J.

There was no evidence in this case to warrant the verdict of the jury, and the motion of the defendants to set that verdict aside should have been granted. The trial judge charged the jury that if the destruction of the boat was in the defense of the possession of property, the criminality was lacking which constitutes the punishable offense against the People. That charge was taken from the opinion rendered on an appeal from a previous judgment of conviction in this case, 131 N. Y. 111; 42 St. Rep. 722, and should have ended the controversy, for the proof showed clearly that the boat was destroyed in an effort to protect property against a persistent, repeated and defiant trespass upon the rights of its owner. There was not a particle of evidence to the contrary, and not the least ground for the suggestion that the act may have been wanton and unnecessary, which is the palpable inference from the language of the chafge. The act was done by the defendants under instructions from the owner to protect the possession against the trespass for which this boat was brought to the pond and used ; they had no quarrel with its owner and no personal difficulty with him; they took the boat on the water and without trespass on his land; and broke it up in the daylight, near to a public highway, openly and without concealment and after advice by counsel that they had a right so to do. The trial judge charged, as this court had already decided, that the owner of the pond was not bound to resort to an action at law instead of himself defending his possession. Granting that, what other effectual or reasonable remedy remained than to destroy the boat which was wrongfully on the pond, and put there and kept there for the avowed purpose of defying the owner’s right ? One remedy might be to remove the boat from the water. That certainly would be mild enough and was tried twice at least and failed. The boat was hauled out and left upon the land; the trespasser promptly shoved it back into the water. Then Kane, with the aid of a horse, moved it away from the shore and over a bank. The trespasser took his horse and replaced the boat in the water and chained it to a tree. Plainly, that sort of procedure was useless. Another remedy might be to endure the presence of the boat upon the water, but watch for the trespasser’s use of it and then employ force enough to eject it and him. That would have been lawful, Filkins v. People, 69 N. Y. 101, but the defendants were not bound to wait for that, nor pursue a mode of resistance sure to end in personal violence. The only other remedy was to destroy the boat, and in that manner end the trespass. The law, in its own operation, in peculiar cases where the act is effectual to repress a wrong, does not hesitate explicitly to authorize the destruction of the instrument with which the wrong is both done at the moment and threatened for the future; as in the case of nets and seines used in violation of the restraints upon fishing; and so there was nothing inherently vicious in the character of the remedy. There was, therefore, in the facts of the case, as we said on the previous appeal, excusable cause for the act which the judgment rendered denounces as a ■crime and for which the defendants were sentenced to the penitentiary. The public law cannot so be wrested to the purposes of private and personal revenge in behalf of the original wrongdoer.

The courts below appear to have supposed that because we ordered a new trial there must have been in our judgment some question of fact for- the jury. But we could riot know what new evidence might be given. Proof was possible which would raise a disputed question of fact, and we had no right to assume that it might not exist. If, we had been sure then, or could be sure now, that no other facts were possible of proof except those stated in this record, we might end the controversy quickly; but, instead, we must again reverse the judgment and order a new trial. If when that occurs the facts appear as they appear now it will be the duty of the trial court to order an

How far one may go, what force he may use, what acts of defense are excusable in the protection of premises or property are •usually mixed questions of law and fact to be submitted to the jury under proper instructions from the court, Filkins v. The People, supra, because always dependent upon the facts and circumstances of the particular case, such as the manner and character of the trespass, the instrumentalities through which it is accomplished, and the opportunities or reasonable means of defense. What we decide now is that upon the undisputed evidence in this record, and under the peculiar and specific circumstances disclosed, there was no ground for convicting the defendants of a criminal offense.

The judgment should be reversed, and a new trial granted.

All concur, except Earl, J., dissenting.

Judgment reversed.


author: Per Curiam.

text:
    Henry W. Homiston, App’lt, v. The Long Island Railroad Company, Resp’t.

      (New York Superior Court, General Term,

      Filed April, 1894)
    Appeal—Former.
    Where the verdict is amply sustained by the evidence,.and the exceptions without merit, the judgment, if in accordance with the law of the case as settled by the court upon a former appeal, must be affirmed.
    Appeal by plaintiff from judgment entered on verdict in favor of the defendant, and from an order denying a motion for a new trial.

      William H. Law, for app’lt; F. B. Hinsdale, for resp’t.
   Per Curiam.

Upon a former trial of this action the plaintiff had a verdict, which, on appeal from the judgment entered thereon, was set aside by the general term for errors of law, see 52 St. Rep. 1; 22 N. Y. Supp. 737, all of which were obviated on the trial we are called upon to review., The facts, though requiring submission to the jury, appear substantially as they did upon the first trial; and We are, therefore, required upon this appeal to consider only the exceptions that appear upon the present record, and these seem to be without merit. The portions of the charge which might bear criticism were not excepted to; so that the trial judge had no opportunity to correct, explain or modify the language used, as he might have done.

The verdict is simply sustained by the evidence, and, according to the law of the case as settled by the court upon the first appeal, the judgment is right, and must, with the order denying the motion for a new trial, be affirmed, with costs.

Sedgwick, C. J., and McAdam, J., concur.


author: McAdam, J.

text:
    Sandor Kohn, App’lt, v. The Manhattan Railway Company, Resp’t.

      (New York Superior Court, General Term,

      Filed, April, 1894)
    1. Costs—Trial fee.
    The plaintiff is not entitled to a trial fee at a term for which he should have known that his cause was not ready for trial.

      2. Same—Witness’ neks.
    Where it appears that witnesses were not called, proof should be presented of what was expected to be proved by them, and why they were not called.
    3. Same—Disbursements.
    Though the plaintiff has been compelled to pay increased fees by reason of the transfer of the cause from the equity to the jury calendar, on motion of defendant, under a statute subsequently declared to be unconstitutional, he is not entitled to tax such increased disbursements.
    Appeal by the plaintiff from an order of the special term, directing a re-taxation of costs and disallowing certain items taxed by the clerk.

      W. W. Badger, for app’lt; Davies, Short & Townsend, for resp’t.
   McAdam, J.

The order from directed the clerk to retax the plaintiff’s costs, and to strike therefrom an item of 25 cents charged for “satisfaction piece” and $1.50 for sheriff’s term fees. It reduced the fee for filing note of issue from $3.50 to $3, and reduced the charge for witnesses’ fees from $42 to $13.

The Code, § 3256, provides that “A party to whom costs are awarded in an action, is entitled to include, in his bill of costs, his necessary disbursements, as follows: The legal fees of witnesses, and of referees and other officers,” etc. Disbursements incurred are not always allowable against the opposite party, for the Code limits those taxable to necessary disbursements; and the word “necessary” has given rise to a number of judicial opinions construing its meaning.

It appears that the cause was on the equity calendar of the October term, at which the action was first called for trial; that the proper parties plaintiff were not then before the court, and for this reason the cause went over the term. The court disallowed the fees for witnesses summoned for that term, upon the ground that the fees paid were not necessary disbursements. In Delcomyn v. Chamberlain, 48 How. Pr. at p. 411, the court held that a necessary disbursement “is such as a party is compelled to make or incur, incident to the regular proceedings in the action, and to bring it to trial according to the course and practice of the court.” The plaintiff was not compelled to summon witnesses at a term for which he should have known that his cause was not ready' for trial; and for this reason the ruling in regard to the witnesses’ fees for October was properly made. See also Pike v. Nash, 16 How. Pr. 53.

In the plaintiff’s bill of costs twenty-two witnesses were named, and twenty-one charged for. At the term when the cause was tried only eight witnesses were called. In Haynes v. Mosher, 15 How. Pr. 216, cited with approval in Mark v. Buffalo, 87 N. Y. 189, the court said : “It was shown in this case in opposition to the allowance for witnesses’ fees, that a large number of the witnesses were not shówn upon the trial. This fact furnishes presumptive evidence that the witnesses were not necessary. Before the defendant could be allowed for the travel and attendance of such witnesses, it was incumbent upon him to overcome this presumption, by showing how it happened, if they were material and necessary witness for him, that he was able to dispense with their testimony on the trial.”

In Robitzek v. Hect, 3 Civ. Pro. R., 156, this court held that, where it appeared that witnesses were not called at the trial, proof should have been presented of what was expected to be proved by them, and why they were not called." No such proof was furnished and the ruling made below was correct.

It also appears that the cause was in 1891 transferred, from the equity to the jury calendar on defendant’s motion under the amendent to the Code passed in that year (L. 1891, Ch. 208), whereby the calendar fee was increased by fifty cents, and three sheriff’s term fees had accrued. On the rendition of the judgment by the court of appeals in Shepard v. Man. R. Co., 131 N. Y. 215; 43 St. Rep. 117, holding that the act under which the transfer was made was unconstitutional, the cause was returned to the equity calendar, upon which it was tried. It is ¿laimed that these expenditures having been made necessary by the legislative act in question, were necessary disbursements, because the plaintiff was obliged to pay them under color of legislative authority. But the statute was declared unconstitutional. It is therefore as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void and it constitutes no protection to any one who has acted under it. Cooley’s Con. Lim. 2d Ed. 188. There is therefore no warrant under which money paid under such an act by one party without the request of the other nor for his benefit can be recovered from him. A void act creates neither duties nor obligations. It is familiar law, that a void thing is no thing, and that there is no remedy for a mistake of law. Ignorantia juris non excusat. It follows that the order appealed from must be affirmed with costs.

Sedgwick C. J., and Freedman, J., concur.


text:
    John B. McPherson, App’lt, v. Herman W. Schade, Resp’t.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    Contract—Specific performance—Title.
    Specific performance of a contract to convey real estate will pot be decreed, where the refusal to take title is based upon the fact that the walls of the house, contracted to be sold, encroach upon adjoining lands of other owners, and that the vendor cannot, for this reason, convey the title he haá agreed to transfer to the purchaser.
    Appeal by plaintiff from decree made at the equity term, dismissing the plaintiff’s complaint upon the merits, and granting the defendant affirmative relief.

      J. F. Malcolm & A. Fling, for app’lt; J. F. Miller, for resp’t.
   Per Curiam.

The plaintiff as the owner of the premises .No. 19 Cornelia Street, in this city, filed a bill to compel the defendant, to specifically perform a contract whereby he agreed to purchase said property from the plaintiff. The refusal to take title was based upon the fact that the walls of the house contracted to be sold encroached upon adjoining lands of other owners, and that the plaintiff could not, on that account, convey the title he had agreed to transmit to the defendant.

The trial judge found upon evidence warranting the conclusion, that the objections made were true, that the encroachments existed, and that the plaintiff could not, therefore, give the defendant a marketable title to the property, and as a necessary - conseqence, the plaintiff’s complaint was dismissed, and the defendant awarded judgment for the return of $1,000 paid by the defendant at the time the contract was executed, and for $389.90, the reasonable expenses of searching the title.

The objections to the title were not obviated by any adverse' possession which had ripened into a title by prescription, or by anything which disabled the adjoining owners from asserting their claims and raising the questions determined at the trial. The remedy by specific performance is to a large extent discretionary, and we find no substantial reason for interfering with the disposition made of the case by the learned trial judge.

The judgment must be affirmed with costs.

Sedgwick, C. J., and Meaceam, J., concur.