text:
    Theresa Rice, App’lt, v. Thomas H. Groves, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Mortgage—Satisfaction—Construction of condition clause.
    In an action to compel the satisfaction of a mortgage, executed by plaintiff to defendant, on the ground that the indebtedness which it was given to secure was paid, it appeared that the condition of the mortgage was- “ this grant is intended as security for the payment of a certain promissory note made by R. (the plaintiff) and J. B. W. and K. and indorsed by Q. (defendant) and of any renewal thereof, and for the payment of any indebtedness of R. or of the makers of said note or either of them which now exists or which may hereafter exist.” The note mentioned in the mortgage was paid, but a further indebtedness on notes of J.and W. had arisen. The first note was in fact only signed by plaintiff, the mortgage having been drawn prior thereto. The proceeds of the notes were used by all the parties mentioned in the mortgage in their business. Held, that the mortgage debt was not paid, it covering the later notes made by J. and W.
    Appeal by plaintiff from a judgment dismissing her complaint,, entered on the findings and decision of the court at special term,, Monroe, September, 1892.

      J. J. Snell, for app’lt; D. Hays, for resp’t.
   Dwight, P. J.

The action was to compel the satisfaction and discharge of record of a mortgage executed by the plaintiff to the defendant on the ground that the indebtedness which it was-given to secure was paid.

The condition of the mortgage was as follows: “ This grant is intended as security for the payment of a certain promissory note-of $1,350, made by the party of the first part and John Rice, Ellen Rice, William H. Rice and Katherine Rice, and indorsed by said Groves, dated March 26. 1890, due three months after-date, at the Merchants’ Bank, Rochester, H Y., and of any renewal or renewals thereof, and for the payment of any indebtedness of the said party of the first part or of the makers of said note, or either cf them which now exists or which may hereafter exist, to said second party; and to save said second party harmless from loss, cost or damage by reason of said indorsement, or for any indorsement hereafter for said parties or either of them; which said note and indebtedness, principal and interest, the said party of the first part hereby covenants and agrees to pay in the manner and time aforesaid.” It appeared, by undisputed evidence., that the particular note of $1,350, mentioned in the mortgage, was paid, but that further indebtedness to a considerable amount had arisen upon notes of John and William Rice indorsed and paid by the defendant, and was owing at the time of the commencement of this action.

The only question in the case was whether such indebtedness was within the security of the mortgage executed, as above, by the plaintiff; and the only other fact which requires to be considered in that connection is the circumstance that the particular note of $1,350, which is described in the mortgage as made by the party of the first part (the plaintiff), and John and Ellen and William and Katherine Rice; was, in fact, when it came to be indorsed by the defendant, signed by the plaintiff alone. In view of this fact it is contended on the part of the plaintiff that the application of the security is limited to such indebtedness as arises upon paper signed by the plaintiff herself. The language of the mortgage in this respect is, as we have seen, “ any indebtedness of the party of the first part or of the makers of said note, or either of them,” and “any indorsement hereafter for said parties or either of them.” Some testimony was given on the part of the plaintiff which suggests an attempt to make a case of fraud or mistake in connection with the execution of the mortgage; but that purpose is expressly disclaimed on her behalf, and there is no allegation to that effect in the complaint. She stands upon the strict reading •of the security, and contends that the phrases “ the makers of the note or either of them,” and “said parties or either of them ” must be construed to cover only the actual maker of the note referred to, and not the persons named in the mortgage as the makers of the note.

It seems clear that this contention is a mistaken one. It is apparent that the mortgage was drawn before the note was signed, when it was expected that it would be signed by the parties who are named in the mortgage as its makers, and that, being once named as the makers of the note, they were subsequently referred to by that designation to avoid the repetition of their names.

In other words, when the mortgage speaks of “ the makers of the note or either of them,” the reference is to'the persons thereinbefore named as the makers of the note; and in the corresponding phrase, “ the said parties or either of them,” the reference is the same.

This obvious interpretation of the language of the mortgage is in harmony .with what appears incidentally in the case in respect to the occasion and purpose of the execution of that security. It •seems that one Edward J. Rice being an insolvent and having— as it was expressed by one of the counsel here—lost the use of his name, was doing business, as a contracting plumber, in the name of his brothers, John and William Rice, under the style of Rice Brothers, and that he was the financial manager of the business. He was also the agent of his wife, in whose name the real estate covered by the mortgage was held. Having occasion to procure assistance for the firm by the indorsement of the defendant, he offered him security on the real estate mentioned, and, himself, procured his wife to execute the mortgage, which she did with knowledge of its terms and without fraud or mistake. The note ■of $1,350 was the first to be indorsed by the defendant on the -credit of the .mortgage, and was expected to be signed by the brothers, John and William, and their wives, as well as by the plaintiff. It was made'for the benefit of the firm, as were also the .subsequent notes indorsed by the defendant, which were made by the ostensible members of the firm.

The findings of. fact of the court at special term were based upon substantially uncontradicted evidence and they support the conclusions of law, which are in accordance with the views .above expressed.

The complaint was properly dismissed and the judgment appealed from should be affirmed, with costs.

Lewis, Macomber and Haight, JJ., concur.


source: Caselaw Access Project

author: Haight, J. Lewis, J.,

license: Public Domain

text:
    Homer Knapp, Resp’t, v. George J. Hall, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Deed—Restrictions as to use of premises—Knowledge of purchaser.
    In an action to enjoin defendant from building a bouse within fifteen feet of the street line, it appeared that M. & W. were the owners of a parcel of city land which they divided into 117 lots, which were placed on the market and a firm of real estate agents employed to conduct the sale ; they sold a number of the lots subject to the condition that the houses to be ■erected thereon should stand not less than fifteen feet back from the street line. J. purchased four lots, subject to such condition, and sold one to plaintiff; defendant purchased two lots without condition and commenced to build within fifteen feet of the street line. Defendant testified that he did not know that there were any conditions'on the lots purchased by him, although he knew there were on others; that he inquired of M. and was told by him and his attorneys that there were not; that he had the title examined and received a like report. M. & W. testified that before any of the lots were sold they informed the real estate agents that those in question were withdrawn from the market, and that they understood it was generally known that they were to be sold without restrictions. Held, that the finding that defendant knew that the sales made to plaintiff and others were made under the oral representations that the restriction should cover all the lots, including those purchased by him, was against the weight of evidence.
    Appeal from a judgment entered upon a decision of the Monxoe equity term.

      Theodore Bacon, for app’lt; John F. Dorthy, for resp’t.
   Haight, J.

This action was brought to enjoin the defendant from building a house within fifteen feet of the street line.

In 1887, Fred S. Hinges and Cass Williams were the owners of a parcel of land in the city of Rochester known as the Beech wood 'Tract, which they caused to be surveyed and mapped, dividing it into 117 city lots. The lots were then placed upon the market, .and the firm of Culver & Crane, real estate agents, was employed to conduct the sale. This firm sold a number of the lots subject to the following conditions: That the building or dwelling house to be erected thereon shall stand not less than 15 feet back from the front of the lot and from the line of the avenue, an d shall not be of less value than $1,500, and the main part shall be two full stories high, and the bam or other buildings or structures appurtenant to such building or buildings shall be put on the rear portion of the lot; and that no wine, spirituous or malt liquors shall be made, manufactured, kept for sale or sold on the premises for a profit or otherwise. On the 5th day of October, 1888, one James Harden purchased four lots, including lot Ho. 76, subject to the conditions and restrictions aforesaid, which last mentioned lot he conveyed to the plaintiff on the 18th day of December, 1890. On the 10th day of April, 1891, the defendant purchased adjoining lots, Hos. 77 and 78, without conditions or restrictions of any kind, and commenced to build thereon, within 15 feet of the street line.

The trial court found as facts, that the defendant, before he purchased lots 77 and 78, had knowledge and notice that the covenants and restrictions mentioned had been imposed by the grantors upon all the lots of the tract lying west of Chamberlain street. An exception has been taken to this finding: and the only question which we shall consider is, as to whether it is against the-weight of evidence.

The conditions and restrictions mentioned were inserted in the deeds of the purchasers of lots in this tract, but there is nothing in their deeds as to any covenant or agreement on the part of the grantors that the other lots in the tract shall only be sold upon-like conditions and restrictions. We shall assume, however, that to each purchaser the agents of the grantors stated and represented that all of the lots would be sold subject to the conditions and restrictions named. We shall also assume that the defendant knew that the prior purchasers of lots had taken them subject to-these conditions and restrictions. This, however, is not enough to entitle the plaintiff to maintain his action. He must show that the defendant also knew that at the time the plaintiff purchased his lot he was induced to make such purchase under the representations" of the grantors or their agents that the same conditions and restrictions were to be extended to the lots purchased by the defendant. Has this fact been established? As we have seen, there is nothing in the deeds or in the records thereof that shows that such representations were made. The plaintiff testified to an admission on the part of the defendant to the effect that he knew of the restrictions on the Beechwood Tract before he purchased, that he paid a big price for the lots and proposed to utilize them as he saw fit, or to his tiwn personal advantage. The defendant did not, however, admit that he knew that the conditions and restrictions covered all of the lots of the tract, including those purchased by himself. On the other hand, he testified that he did not know that there were any restrictions upon the lots purchased by him ; that he inquired of Hinges, the grantor, and was informed that there wrere not; that he also inquired of the grantors’ attorneys who had drawn the deeds conveying the lots in the tract, and was informed that they were all right: that he had the title examined by attorneys, and received a like report.

Hinges testified that shortly after the tract had been surveyed and put in the hands of Culver & Crane to sell, and before any of the lots had been sold, he withdrew from the agents lots 77, 78, 115 and 116, and informed them that these lots were to be withdrawn from the market, and were to be reserved for business purposes ; that lots 115 and 116 are separated from lots 77 and 78 by Chamberlain street; that in 1887 lots 115 and 116 were sold to the Rochester & Gflen Haven Railroad Company- without restrictions, which company has constructed a depot thereon, and that as he understood it, it was generally known that no restrictions were to be placed upon lots 77 and 78. Williams, the other grantor, also testified to the withdrawing of these lots, that they were to be reserved for business purposes, and were not to be restricted. Their testimony is corroborated by other witnesses.

The trial judge, in his opinion, says, that when Hinges and Williams reserved these lots “ nothing was said as to their exemption from such restrictions, and. it seems that Culver & Crane continued thereafter to assure purchasers, and in one instance at least in Mr. Hinges’ presence, that these restrictions covered the entire tract.” Assume this to be so, but where is the evidence that the defendant knew of such representations ?

Again, the trial judge says, “But the most conclusive evidence upon this point is defendant’s own admission, upon his cross-examination, that when he purchased lots 77 and 78 he knew that all the other lots had been sold subject to restrictions.” Very true. He knew this, but, as he testified, he did not know that they purchased under the representation that the restrictions should also cover the lots that he purchased.

The trial judge further states, “ With this information in his possession the duty was certainly imposed upon the defendant of ascertaining whether or not the restrictions which applied to the other lots in any manner affected those he was negotiating for.” He did inquire. He inquired of the grantors, and of the attorneys who had done the conveyancing upon the tract for the grantors; he had the records searched, and attorneys pass upon the title. But it is said, “ He appears to have scrupulously avoided making any inquiries of parties who were in a position to know the precise situation of affairs.”

Did not the grantors know the precise situation of affairs ? They were the parties who had executed the conditions and imposed the restrictions. And again, “Had he spoken to the owners of adjoining lots he might easily and speedily have ascertained that they had made their purchases upon assurance that all the lots were to be restricted alike, and his omission of this plain duty, it seems to me, establishes such negligence on his part as cannot be attributed to an ordinarily prudent man, and consequently charges him with the knowledge he ought to have possessed.” The present owners would have known nothing of the oral representations made by Hinges and Williams to induce purchasers to take the lots unless they were the original purchasers. It follows, therefore, that it was the duty of the defendant to look up the original purchasers of the lots and get their version as to what oral representations were made to them to induce them to purchase; that failing in this he must have conditions and restrictions imposed, upon the use of his premises.

This case was once considered by this court upon an appeal from an order denying the defendant’s motion to vacate and set aside an injunction pendente lite. 43 St. Rep., 95.

Lewis, J.,

in delivering the opinion of the court, says: “If the rights and interests of the appellant to the lands which he holds-under a deed containing upon its face no restrictions, are to-have easements or servitudes imposed upon them by the parol declarations and promises made to others by his grantors, the proceedings should not be based upon shadowy and uncertain evidence.” And yet the trial court has found that because the defendant neglected to look up the original purchasers and to question them as to what oral representations were made, that he is chargeable with knowledge that such representations were made. We think this is going too far. It would practically nullify the recording act and would permit titles to lands to be defeated if the purchaser neglects to inform himself as to the oral understandings of his neighbors. A purchaser of lands is chargeable-with notice of facts affecting the title which could be discovered, by an examination of the deeds or other muniments of title; and where there is an outstanding mortgage or lien unrecorded and he has had notice of its existence, it becomes his duty to inquire and ascertain the extent of the rights of the person holding the same. Williamson v Brown, 15 N. Y., 354; Cambridge Valley Bk. v. Delano, 48 id., 326; Ellis v. Horrman, 90 id., 466.

But these cases do not go to the extent of sustaining the respondent’s claim.

It appears to us that the defendant made all of the inquiry usually made by prudent men, and that the finding that he knew that the sales made to the plaintiff and other purchasers were-made under the oral representations that the conditions 'and restrictions named should cover all of the lots in the tract, including those purchased by him, is against the weight of evidence.

Judgment should be reversed and a new trial ordered, with costs to abide the final award of costs.

Dwight, P. J., Lewis and Macumber, JJ., concur.


author: Haight, J.

text:
    Le Roy Riddell, Resp’t, v. Peter Cornell, App’lt

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Ejectment—Agreement as to purchase oe land.
    In an action of ejectment to recover the possession of about five acres of land on which there was a stone quarry, held by defendant under a parol contract of sale made by one R., since deceased, for himself and plaintiff, as copartners, the referee found that the contract was made, but for what price did not appear, and therefore it was unnecessary for him to find the state of the accounts between the parties, hence that “the defendant has not paid the sum to be paid by said parol contract of sale.” The plaintiff testified that G-. told defendant he could have the five acres for $300 and he said he would take it. Defendant alleged in his answer that the price was $300 to be paid in stone, which latter fact he proved by numerous-witnesses. Held, that the finding was against the weight of the evidence.

      Appeal from a judgment entered in Steuben county upon the report of a referee.

      Eli Soule, for app’lt; A. M. Burrell, for resp’t.
   Haight, J.

This action is in ejectment to recover the possession of real property from the defendant. The premises in question consists of about five acres of land on which there was a stone quarry. It formerly constituted part of a farm of which one George Eiddell held a contract of purchase from the then owners. George Eiddell and the plaintiff were co-partners, doing business under the name and style of George Eiddell & Co. The contract for the purchase of the farm was taken in the name of George for the benefit of the firm, and the purchase money therefor was paid by the firm. Subsequently George Eiddell assigned his interest in the contract to the plaintiff, and thereupon the premises were conveyed to him in accordance with the provisions of the contract. The referee has found as facts: “That the said George Eiddell, while he held said contract of. purchase for himsblf and for said firm, and with the approval of the plaintiff, made a parol contract with the defendant by which he agreed to sell to the defendant, and the defendant agreed to purchase the lands described in the complaint, but for what price does not appear, and is not shown by the evidence given on the trial of this action. Hence I find that the defendant has not paid the sum to be paid by said parol contract of sale to him. That defendant since said parol contract of sale to him was made, and at the time of the commencement of this action, was in possession of said premises under the same, and by the consent, license and authority of said George Eiddell and this plaintiff.” The 8 defendant requested the referee to find as a fact that George Eiddell agreed to sell the land described in the complaint to the defendant for three hundred dollars.” This request was refused by the referee, and to such refusal, and to the finding as made on that subject, exceptions were duly taken. It appears to us that these exceptions were well taken ; that the request was in accordance with the conceded facts in the case, and should have been found, and that the finding that it does not appear, and is not shown by the evidence given upon the trial, what price was to be paid for the land, is against the evidence.

The plaintiff himself testified upon his direct examination that “ in March, 1874, the defendant came to the drug store and said he wanted to buy the stone quarry ; George talked with him and told him he would let him have it for three hundred dollars. Defendant said he did not want a written contract, that he had debts. George told him he would let him have the five acres for three hundred dollars, he to pay interest on it till paid for. Defendant said he would take it. That is the same land described in the complaint.”

The testimony of the plaintiff as to the contract is the same as that alleged in the defendant’s answer with the exception that he alleges that the three hundred dollars was to be paid in stone.

The defendant was not permitted to testify as to the conversation had with George Riddell because of his death. He, however, showed by a number of witnesses the declaration of George to the effect that he had sold the defendant the quarry lot, and that he was to receive his pay therefor in stone; that the payment in stone was part of the agreement has been found by the referee.

The referee in his opinion refers to the testimony so given by the plaintiff, and states that “ a contract price nowhere appears except in the testimony of the plaintiff, and it there appears as a price to be paid for three acres of the quarry, while the declarations of George Riddell relate to five acres, and it was five acres that he reserved as having been sold to the defendant. Then the defendant had the possession and worked the five acres, and by directions of George Riddell the five acres were assessed to the defendant, and he paid the taxes on the live acres and fenced it. Then the defendant denies that any such conversation as the plaintiff testified to took place.’’ The referee has mistaken the evidence in this regard. rJ?he plaintiff nowhere speaks of three acres, but, instead thereof, he said he would let him have the five acres for three hundred dollars, and that it was the same land described in the complaint. The defendant did not deny that any such conversation as testified to "by the plaintiff ever took place. They differed, it is true, as to the question whether the three hundred dollars was to be paid in stone or not. The plaintiff had testified that the conversation took place at the drug store. The defendant, when asked to state whether he made the bargain “at the place stated,” answered that no such conversation took place at the store.

We do not understand that he denied that he had a conversation with George in which George agreed to sell him.the stone quarry lot consisting of five acres, and that he was to pay therefor three hundred dollars, for such was the conversation as he has alleged it in his answer. The referee further states in his opinion that he is unable to see how it could be found from the evidence what was the contract price to be paid by the defendant for the-quarry, and consequently it is not necessary for him to make a finding as to the state of the accounts between the parties. Of course if the amount that was to1 be paid for the land could not be ascertained, then it would not be necessary to ascertain the state of the accounts, but if, as we have shown, the contract price was three hundred dollars, then the state of the accounts becomes material as bearing upon the. question whether the plaintiff has been paid in full for the land or any part thereof. The question of payment was the main one litigated upon the trial. Much evidence was taken as bearing upon that issue and it should have been determined.

The judgment reversed and a new trial ordered, costs to abide the event.

Dwight, P. J., Lewis and Macomber, JJ., concur.


author: Dykman, J.

text:
    Edgar L. Pierson, App’lt, v. Norman L. Munro, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Brokers—Commissions.
    Plaintiff employed one Squire to sell his business for him, and Squire employed plaintiff to assist him, for which plaintiff was to pay an extra commission to Squire. Plaintiff sent his partner to England, where he made a contract for. the sale conditioned upon certain representations alleged to have been made by defendant proving true on examination, and defendant, without knowing the terms of the contract, cabled a confirmation thereof. Upon an examination being made the sale fell through, and plaintiff claimed the commission on the ground that the sale failed because of the falsity of the representations. There was no proof that such representations were made. Held, that plaintiff was not entitled to recover.
    Appeal from judgment dismissing the complaint
    Action to recover commissions claimed to have been earned by plaintiff as broker in negotiating a sale of defendant’s business; which sale was alleged to have fallen through because of the falsity of defendant’s representations as to its productivity.
    Plaintiff’s testimony tended to show that he sent his partner to England to negotiate a sale; and that he made a contract with a company there to take the business providing that upon an ex.amination it was found that such representations were true; that the company sent an accountant to make an examination, who reported that the representations were false, and thereupon the sale fell through.
    Defendant denied any employment of plaintiff, and testified that he employed one Squire to sell the property, who employed plaintiff to assist him, and defendant agreed to pay an extra com-mission on that account. Plaintiff did not show him the letter from England, but told Squire it was necessary to cable a confirmation, which defendant did. There was no proof that defendant made the representations.

      Edward Schenck„ for app’lt; Joseph G. Gay, for resp’t.
   Dykman, J.

This is an action to recover commissions for the sale of the plant and business of the defendant in the city of New York, consisting of a printing and publishing establishment, real property, machinery, plates and printing presses, several publications and the good will of all the business.

The price fixed for the property was $2,000,000. and the commission to be paid in case of a sale was fixed at $75,000, and that is the amount claimed in this action.

The complaint was dismissed upon the trial because no sale was established.

There was no effort to prove a sale because none had been effected, hut the plaintiff claimed the right to recover without showing a sale on the ground that the defendant had over stated the productivity of the plant.

The plain and conclusive answer to the proposition was that the defendant had made no representations upon the subject.

We think the judgment may be sustained upon two grounds. First, the defendant never employed the plaintiff to make the sale, and second, that no sale was ever made.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Dykman, J. Pratt, J.

text:
    David M. Torrey, App’lt, v. Francis A. Waters, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Arrest—Fraud.
    An order of arrest was granted against defendant in an action against himself and others on affidavits alleging fraud and conspiracy in procuring the discount of drafts made by the other defendants on this defendant and that the defendants are insolvent. On affidavits stating that these drafts-were the last of a senes which had run for several years which had been drawn on a company of which defendants were officers, and which for some time had been drawn on defendant individually at plaintiff’s request, and denying the other facts except that there were judgments against them, the order was vacated. Held, no error.
    Appeal from order vacating an order of arrest
    The order of arrest was granted on affidavits showing that plaintiff was induced to discount two certain drafts drawn by one Sanderson on this defendant to the order of Edward Waters and indorsed by the latter; that said drafts were not paid ; that plaintiff was induced to discount these drafts by false representations that they were all right; that both the Waters are insolvent and defendant Edward cannot be found.
    Defendant moved to'vacate on affidavits showing that these drafts were the last of a series of transactions which had occurred as often as three or four times a week for several years; that such drafts were formerly made on respondent as treasurer of the Atlantic Chemical Co., but in April, 1892, the official title had been dropped at plaintiff’s request and the drafts drawn on respondent individually; that since such change plaintiff had cashed fifteen in that form, of which eleven had been paid ; that such drafts were cashed for said company, the money used for it and the drafts paid from its funds; that it was solvent, and that the reason why respondent refused to pay those in question was because plaintiff suddenly refused to continue to cash drafts drawn as aforesaid; that plaintiff had knowledge of defendants’ insolvency. Plaintiff’s affidavit admitted that he had for a long time paid sight drafts drawn by Sanderson on said company to the order of E. E. Waters on respondent, and stated that he always did business with Sanderson and had no recollection of seeing Waters; that he was informed that there was no such company at Kingston, where the drafts were payable, and, therefore, declined to cash any further drafts, and the "drafts were then drawn on respondent individually and were discounted on the faith of a letter that they would be all right; that he had no knowledge of the insolvency of the Waters or as to the responsibility of the company ; that he was informed by a former clerk of defendants that tiiey were deceiving him, and then refused to cash any further drafts.

      Henry Cooper, for app’lt; D. M. De Witt, for resp’t.
   Dykman, J.

This is an appeal from an order vacating an order-arrest granted in action.

A perusal of the papers convinces us that the charges of fraud and conspiracy upon which the order of arrest was based are unfounded and an afterthought.

The plaintiff had cashed many drafts similar to those in question here and must have been in possession of full knowledge respecting the parties and their mode of doing business.

We think the order vacating the order of arrest was right and should be affirmed, with ten dollars costs and disbursements.

Pratt, J.

The defendant’s affidavits fairly meet the plaintiff’s. Upon the whole case we do not see that any fraud is made out The discounts were made during so long a time that we must believe plaintiff had knowledge of defendants’ financial condition, or else that he trusted them as officers of the corporation in reliance upon its solvency.

Order affirmed, with costs.

Barnard, P. J., concurs.


author: Pratt, J.

text:
    Levi P. Rose, Resp’t, v. David Hawley et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Deed—Breach of condition.
    Plaintiff deeded a parcel of land to the town of Yonkers in 1848 for a highway, upon condition “that no house, building or other erection whatever, except a public monument, shall ever be built or erected or permitted upon the said land or upon any part thereof. Meld, that the land conveyed could be used for the ordinary purposes of a highway, gas pipes could be put under it, water mains and sewer excavations could be made in it, and areas for light and for access to the buildings bounded on it, provided that the entire surface of the street was made good and safe for public travel.
    Appeal from judgment in favor of plaintiff in action of ejectment, and from order denying motion for a new trial.
    The plaintiff brought suit to recover possession of certain land in the city of Yonkers, on the ground that the city of Yonkers had violated a certain condition in a deed made by the plaintiff to the town of Yonkers in the year 1848.
    The complaint alleges in the fourth paragraph that in the year 1848 the plaintiff conveyed to the town of Yonkers certain premises upon condition “ that the said land hereby conveyed shall forever hereafter be and remain public and open as a public highway, and that no house, building or other erection whatsoever, except a public monument, shall ever be built or erected or permitted upon the said land or upon any part thereof.”
    The seventh allegation avers that the above condition has been broken, because the city of Yonkers has permitted upon said land a house building and other erection owned by the defendant, Hawley.

      The complaint in the ninth paragraph sets forth that this plaintiff commenced an action against these same defendants in the year 1886, to recover possession of the land described in this action because of the breach of the conditions mentioned in paragraph six of the complaint in the present action by the encroachment of the building known as Radford Hall, which still stands as it stood at the commencement of the former action, and that in the former suit the city of Yonkers answered, and that the case was tried by the city attorney, and that in the former suit a special term judgment went for the plaintiff, which judgment was reversed at the general term.
    The complaint further alleges that the plaintiff in the former action appealed to the court of appeals, where the judgment and order of the general term was affirmed.
    That this affirmance, according to the complaint, rested upon the sole ground that the defendant, the city of Yonkers, had received no notice of the fact that a house building or other erection had been built, erected or permitted upon the said land, and that said notice was held to be necessary in order to entitle plaintiff to maintain said action.
    The complaint further alleges that in and by the proceedings in the first action, the city of Yonkers has had due notice of the breach of the conditions in the deed from plaintiff to the town.
    The answers of the defendants deny the allegations in the complaint setting forth the breach of the conditions of the deed, and that the decision of the court of appeals was based solely upon the point of notice, and aver that in the former case the court of appeals rendered judgment absolute in favor of the defendants against the plaintiff.
    It was admitted by the complaint and answer that the question of encroachment had been tried at the special term of the supreme court, and judgment rendered in favor of the plaintiff, and that said judgment had been reversed by the general term, and a new trial ordered. It was further admitted that the court of appeals had affirmed the order of the general term granting a new trial, and had rendered judgment absolute in favor of the defendants against the plaintiff.
    The complaint then alleged that the only reason why this “ judgment absolute ” was not a bar, was because the decision of the court of appeals awarding “ judgment absolute ’’ was based upon the sole ground that prior to the commencement of the first action the defendant, the city of Yonkers, had received no notice of the fact that an erection had been permitted upon the land.
    The proof on the trial was the same as in the former action, except the documentary evidence, which consisted of the judgment roll in that adtion.

      Joseph, F Daly, for app’lt, city of Yonkers; William Allen Butler and Theodore Fitch, for app'lts Hawley et al.; James M. Hunt, for resp’t.
   Pratt, J.

The facts in this case were before the court in a former action, and it was then held that they established no breach of the condition of the deed under which defendants make title. See 45 Hun. 592; 10 St. Rep., 360.

That question, among others, was argued before the court of appeals, which in 118 N. Y., 502, 517; 30 St. Rep., 6, was also of opinion that the condition was not violated. As the views expressed by this court as to the legal effect of the facts have been expressly approved, we should scarcely feel at liberty to depart from our decision in 45 Hun., if we were in doubt of its correctness. But upon re-examination we are confirmed in our opinion as there expressed.

According to those views the plaintiff should have been non-suited at the close of his case.

The plaintiff argues that the previous judgment is not binding upon us as an adjudication. However that may technically be, the opinion of our appellate court upon a fixed state of facts rendered upon full argument cannot be disregarded.

The judgment must be reversed upon the facts, and a new trial ordered, costs to abide the event.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Arthur M. Rose et al., Resp’ts, v. Jacob D. Butler, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Lease—Covenant to iiepaik—Damages.
    In an action for breach of a covenant to repair contained in a lease, whereby the tenant’s goods have been injured, the true measure of damages is the difference in value of the premises as they were and as they would have been if the defendant had kept his agreement.
    2. Same—Negligence of tenant.
    If a tenant elects to leave property, which he knows water will damage, in a place w-here he has reason to believe that rain will beat in case of a storm, he does it at his own risk and must suffer the consequences.
    Appeal from judgment iu favor of plaintiffs, entered upon verdict, and from order denying motion for a new trial.
    Plaintiffs are partners in the business of designing carpets, curtains and wall papers, and occupied rooms on the top floor of defendant’s building fronting on Union Square in the city of New York under a lease which contained the following covenant: “If said premises shall be so slightly injured by fire or the elements as not to be rendered unfit for •occupancy, then the lessor agrees that the same shall be repaired with all reasonable promptitude.” By its eighth clause it also provided as follows : “ Said lessor
    shall not be liable for any damage to any property, at any time, in said premises from the Croton or other water, rain or snow, which may leak into, issue or flow from any part of said building of which the premises hereby leased are part, or from the pipes or plumbing works of the same, or from any other place or quarter.” On the 21st of January, 1892, a fire occurred in a neighboring building, the heat of which cracked the panes of glass in the skylight of plaintiff’s premises, but no glass was broken out. Pending an examination by the insurance appraiser, and on the 20th of February, there was a rainstorm, during which the rain beat in through the cracked glass and injured certain water color designs.

      It appeared that plaintiffs had a cabinet of drawers in which they kept designs, but that the ones in question were left on a rack.
    The court left it to the jury to determine whether the defendant’s delay in making the repairs was unreasonable, as to the effect of the fire, and continued the charge as follows: Now, it is the claim of the defendant that if 'any injury was sustained, if these papers were damaged, it was the result of the negligence and want of care of these plaintiffs. Upon that subject the law is this: These plaintiffs could not carelessly and negligently expose their fine and delicate water prints and designs to the weather, and then after they had sustained damage ask the defendant to pay for them. For instance, suppose they had hung one of these delicate water paintings in front of a window which was open, and they knew was open, and left it there over night, and a storm had beaten in arid injured the paper, then you would be at liberty to say that that was their own fault, that it was carelessness, that it was not proper care to leave these delicate designs exposed to the weather. Well, now, it is the claim of the defendant that that is what they have done, that these designs were left on racks open in the room, whereas proper care would require them to be folded and laid away in some secure and safe place where they would not be injured by the elements if there was any danger of the rain coming through these windows. If you find that question against plaintiffs, then they are defeated. But if you find for them, then you can go on ; if you have found these three or four questions against the defendant and in favor of plaintiffs, to the question of damages.
    “ Upon the question of damages there is a great deal of controversy. It is the claim of the plaintiffs that these designs, such as they expose to you, were worth, some of them $150, some $75, and so on, the estimate of which you heard amounting in all to over $700. They exposed them to you, and pointed out the injuries upon the paper, as I understand, and both of them said, I think, that they were not capable of restoration, could not be restored. Then the defendant called a gentleman, who professed to understand his business, who seemed, as far as I could see, to be familiar with it, and he said to you, after a thorough examination, that they could all be restored, or they could be renewed. In some one or two instances he said to you that the restoration would cost less time and labor than to make new ones ; in others he said a new one could be made. That is the testimony for you to take into consideration ; you take the estimate of the plaintiffs and then that of the defendant, upon the question of damages. Of course, you must see, if you decide all the other questions which I have submitted to you against the defendant, and if so yon are to say how much these plaintiffs have been injured, how much damage they have sustained by the injury to these water colors by the water; and if you find for the plaintiffs, then you are to make your verdict up i:i that way.”
    Defendant’s counsel: “ I request your honor to charge that if
    the plaintiffs are entitled to recover at all, they can only recover the difference in the value of the use of the damaged premises as they were and as thpy would have been had they been in the same condition as they were immediately before the fire.”
    The Court: “ That I have refused to charge.”
    Defendant’s counsel excepts.
    The jury rendered a verdict for the plaintiff in the sum of $765.

      Close & Robertson, for app’lt; James M. Hunt, for resp’ts.
   Pratt, J.

This is an from a entered a, verdict of a jury and from a motion denying a new trial upon the minutes.

There seems to have been no error committed upon the trial except in the instructions as to the rule of damages.

We think the rule which the court was requested to charge, to wit: “That if the plaintiffs are entitled to recover at all they

ean only recover the difference in value of the use of the premises as they were and as they would have been if the defendant had kept his agreement,” was the correct one and should have been charged.

It is very clear that the verdict is excessive, even assuming that the rule charged is true.

It seems that after the storm and after plaintiffs knew the full extent of the damage they had suffered, they fixed the amount of their damages at about $400, and, without some explanation upon their part, they ought to have been confined to that sum.

Again, the evidence is very unsatisfactory as to the elements of damage that should be taken into consideration, but it is unnecessary to discuss that part of the case.

It is plain that plaintiffs knew as well, if not better, than the defendant, the condition of the roof after the fire, and the hazard of leaving their designs in a position to be damaged in case of a recurrence of a storm. If they elected to leave their property, which they knew water would damage, in a place where they had reason to believe that the rain would beat in case of a storm, they did it at their own risk and must suffer the consequences. iCook v. Soule, 56 IST. Y., 428.

Such injuries as are here complained of could not reasonably have been contemplated by the parties when the lease was made.

Again, it may be said that under the eighth clause of the lease the plaintiffs took the risk of all damage from water.

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

Barnard, P. J., concurs; Dykman, J., not sitting.


author: Barnard, P. J.

text:
    Georgianna Bigelow, Resp’t v. William H. Davol et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Foreclosure—Provision of decree upon second mortgage whose
    HOLDER WAS NOT MADE A PARTY TO FORECLOSURE OF FIRST MORTGAGE.
    In an action to foreclose a mortgage upon an undivided portion of land, the holder of which was not made a party to the foreclosure of a prior mortgage on all the land, a provision in the decree allowing the plaintiff to pay the grantee of the purchaser on the former sale a proportionate part of the first mortgage, and providing that on such payment she take the portion covered by her mortgage free, is improper. The decree should provide for a sale subject to whatever rights such grantee has.
    3. Mortgage—Validity—Services of executor as attorney.
    The mortgage in question was given by two of the four heirs of a decedent to plaintiff’s assignor, who was the executor of their father’s estate, for services rendered by him as attorney in defense of the estate. The mortgage failed as to one of the makers. Held, that there was no validity to the mortgage as against the mortgagor.
    Appeal by William H. Davol and Jennie B. Davol, his wife, from judgment entered in action of foreclosure.
    On the 1st of August, 1884, Richard B. Duyckinck and Alexander T. Arthur mortgaged a large piece of property at the corner of Adams and Water streets, in the City of Brooklyn, for the sum of twenty thousand dollars, to Henry J. Smith and John E. Smith. At the time such mortgage was made Alexander T. Arthur was the owner of 36j- sixty-fourth parts of the mortgaged premises, and Richard B. Duyckinck was the owner of 27i-sixty-fourth parts thereof. This mortgage was recorded in Liber 1692 of Mortgages, page 101, on the 1st of August, 1884.
    Shortly after the execution of the said mortgage, the said Alexander T. Arthur conveyed 6$ sixty-fourth parts of the said premises to Cecilia Y. Arthur. At or about the same time the said Alexander T. Arthur also conveyed 6-g- sixty-fourth parts of said premises to William Arthur.
    On the 10th day of December, 1886, the said Alexander T. Arthur executed and delivered two mortgages of 18J- sixty-fourth parts of the said premises to the Brooklyn Bank, which mortgages were recorded in Liber 1867, pages 318 and 322, December 13, 1886.
    On or about the 1st day of September, 1887, Cecilia Y. Arthur and Archibald Arthur made an instrument by which they undertook to mortgage the undivided 18J sixty-fourth parts of the premises to Joseph M. Pray. This mortgage was recorded in Liber 1941, page 193, October 8, 1887.
    On the 8tli of October, 1887, Joseph M. Pray assigned the last mentioned mortgage to Georgianna Bigelow. This assignment was recorded on the 21st of ¡November, 1887, Liber 1953, page 137.
    At the time of the execution of the mortgage to Mr. Pray, noreconveyance had been made by Alexander T. Arthur to Archibald Arthur, so that only the interest of Cecilia Y. Arthur could be bound by this instrument.'
    The §20,000 mortgage to the Smiths was assigned to Henry E. Hutchinson March 17, 1889, and the assignment was recorded March 29, 1889.
    A suit to foreclose this mortgage was thereupon brought; summons, complaint arid lis pendens were filed April 8, 1889. The defendants in this suit were William Arthur, Eliza Arthur, Archibald Arthur, Sarah Arthur. Cecilia Y. Arthur, Alexander T. Arthur, and Joseph M. Pray, individually and as executor o£ William Arthur, deceased, and others. Georgianna Bigelow was not made a party defendant.
    At the foreclosure sale the property was bought by Henry E. Hutchinson. Henry E. Hutchinson sold the premises in question to William H. Davol, the present owner thereof and the defendant and appellant in this litigation.
    This action was brought by Georgianna Bigelow to foreclose the mortgage made by Cecilia Y. Arthur and Archibald Arthur to Joseph M. Pray, and assigned to her.
    . The complaint, in addition to the usual allegations in bills to foreclose mortgages, alleges the making of the twenty thousand dollar mortgage to Henry J. Smith and John E. Smith, in August, 1884, an assignment of that mortgage to Henry E. Hutchinson, the foreclosure thereof, the omission of Georgianna Bigelow as party defendant to such foreclosure, and the sale of the property under the decree to Henry E. Hutchinson. The complaint also contains the allegation that the title to the said premises was, at the time of the foreclosure, in the defendant William H. Davol. The complaint prays that all the defendants, including William H. Davol, be barred of all rights whatever in the mortgaged premises, that the premises be sold and that the plaintiff be paid the amount due on the bond and mortgage.
    This judgment does not merely decree a foreclosure of the mortgaged premises, and that the subsequent equities of the defendants be foreclosed; but it decrees, without reservation, that all the rights of the defendants, William' H. Davol and Jennie B. Davol, his wife, shall be forever barred and foreclosed, and contains a provision that the sum of $3,460.35 out of the proceeds of the sale be paid to the defendant, William H. Davol, as representing that part of the twenty thousand dollar mortgage and of the interest thereon, taxes and expenses of sale paid by the referee out of the purchase money received from Henry E. Hutchinson upon the sale and foreclosure under that mortgage, proportionate to the fractional share of the property now foreclosed.

      A. P. & W. Man (E. Ellery Anderson, of counsel), for app’lts; Joseph M. Pray, for resp’t.
   Barnard, P. J.

The plaintiff is the owner of a mortgage executed on the 1st of September, 1887, conveying eighteen one-fourth sixty-fourth parts of certain premises in Brooklyn to Joseph M. Pray. She acquired her title thereto in October, 1887, and her assignment was recorded in November, 1887. The premises were subject to a previous mortgage given in 1884. In 1889 this prior mortgage was assigne'd to one Hutchinson, who foreclosed it, but did not make the plaintiff a party defendant in the foreclosure action. The property was bought in by Hutchinson at the foreclosure sale, who soon after his purchase sold the land to defendant, Davol. Davol went into possession, and expended large sums of money in improving the property. Hpon the former appeal in the case it was held that this Hutchinson foreclosure did not bind the plaintiff, and that she could foreclose her mortgage as if the Hutchinson foreclosure had not been had. We do not think that the complaint in this action puts in issue the prior mortgage which was foreclosed. There is an averment that Davol be bound; but this is in the usual form of averment incidental to a foreclosure action. It does not in the present case mean that the second mortgage should be put before the first, and by a general prayer that the purchaser at the foreclosure sale of the first mortgage should be subject to the second mortgage, which was not brought in the first foreclosure action. If a sale be had in this action, it will be subject to the first mortgage, and to any equities which Davol has by virtue'of his purchase,as against the plaintiff. The plaintiff’s mortgage only covers a part of the premises covered by the first, and does not cover all which is described in her mortgage, and the decree in this case provides that the plaintiff may pay six and seven-eighths sixty-fourth parts of the amount due on the first mortgage, and take the proportions covered by her mortgage free upon such payment. There is proof tending to assail the plaintiff’s mortgage, ancl this appeal involves these two questions, whether the provision providing that the plaintiff may pay the proportions of the first mortgage, and take the land free, and whether the mortgage of plaintiff is good. We think that the provision for the payment of a portion of the first mortgage only is improper. The first mortgage covered all, and all of the property covered by it is to be held for its payment. 2 Hoff. Oh. Practice, 157.

The portion of the decree which provides for the payment of a portion of the first mortgage should be modified, and the sale be directed subject to whatever rights Davol has in the premises sold. This modification will carry out the spirit of the former decision, that the sale under the second mortgage is as if there had been no foreclosure of the first mortgage. Is the mortgage good ? It was given by Cecilia Arthur to Joseph M. Pray. Although her brother joined in it, the mortgage failed as to him.

The mortgage debt was, if any existed, one for services rendered by Joseph M. Pray in behalf of the estate of their father, in which he was one of the executors to the father’s will. The mortgage was given for services rendered as an attorney or for the children, heirs. The debt, if any, was from the four children. William Arthur and Alexander Arthur did not or could not sign and the whole debt is thus put on Cecilia. The mortgage should not be held good without further proof for over one-ftiurth of the amount of it, in any event. As between Pray and Cecilia there is no proof of a debt for any amount. Mr. Pray paid nothing and Miss Arthur got nothing, except a claim had been shown to her brother Alexander, and Mr. Pray supposed that he had told his sister Cecilia. She denies all knowledge of it The claim was received as collateral to a claim, and this claim was for services as executor in defending the estate. There is no proof sufficient to uphold the mortgage as against Cecilia. (Collier v. Munn, 41 N. Y., 143.

And it is a very significant fact that the mortgage was deemed of no force because Cecilia obtained the surplus upon the first sale with the knowledge of Mr. Pray, who was Mrs. Bigelow’s attorney ; and neither Pray or plaintiff asserted any right to such surplus. As the case now stands there is no validity to the mortgage as against Cecilia Arthur. The plaintiff only took what Mr. Pray had to sell. Trustees v. Wheeler, 61 N. Y., 88.

The judgment should be reversed and anew trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.


author: Barnard, P. J.—The

text:
    The People, Resp’ts, v. Orla W. Parker, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Assault—Complaint.
    A complaint charging the defendant with “maliciously and unlawfully beating ” the complainant by ‘ ‘ kicking him in the head, body and face without provocation," is sufficient to support a conviction of assault in the third degree.
    3. Criminal law—Payment op money on adjournment.
    In order to procure an adjournment, which the justice hesitated to grant, defendant offered to and did pay to him a sum of money for complainant’s expenses and private counsel and which were presumably paid to such counsel. Held, that such payment furnished no reversible error.
    Appeal from judgment of the Queens county court of sessions, affirming, as modified, a judgment of a court of special sessions, convicting defendant of the crime of assault in the third degree.
    Defendant was originally sentenced to the Kings county penitentiary, for which the court of sessions substituted imprisonment in the county jail.

      George B. Stoddart, for app’lt; John Fleming, disk atty., for resp’ts.
   Barnard, P. J.—The

The complaint before the police justice against the defendant was good. The offense was described to be one for “ maliciously and unlawfully beating ” one Egan by “ kicking him in the head, body and face without provocation.” The name given to the offense was without any materiality. After the arrest of defendant he refused to makec any plea or answer .any questions. He elected to be tried by the court and asked for .an adjournment. This was granted ; he, the defendant, being admitted to bail during the trial. A second adjournment was had .at defendant’s request, and on the 8th of July, 1891, the case was tried. There is presented by the evidence a dispute, not as to the assault, but as to a provocation for one, and upon this point I think the justice found clearly according to the evidence. The assault was unprovoked and severe and rendered more intolerable to the complainant by a suggestion of an infamous inference which is wholly unsupported by the ev'denro. The proof offered at folio 55 to the belief of the defendant as to the complainant’s intention, was improperly rejected ; but the rejected proof was subsequently admitted at folio 57. Tue payment of $11.00 for complainant’s lawyer and his own expenses furnishes no reversible error. The justice had hesitated as to a further adjournment and the defendant agreed to pay $10.00 for that purpose, which was delivered to the justice and, presumably, by him. paid to the private counsel of the complainant.

The judgment, as modified by the county judge, is therefore affirmed..

Dykman and Pratt, JJ., concur.


author: O’Brien, J.

text:
    The Mann’s Boudoir Car Co., Resp’t, v. The Gilbert Car Manufacturing Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Pbinoipal and agent—Contbact made by agent in his own name
    INUBES TO BENEFIT OF PBINOIPAL.
    The president of plaintiff, who had been the owner of. patents which he had assigned to the company, assuming that he retained ownership as to-cars manufactured for export, entered into negotiations with defendant in, his own name which resulted in a contract by which it agreed to pay a. specified royalty, and “to tins we will add to contract price a commission of five per cent, to you.” Subsequently the president acknowledged his mistake, and defendant agreed to pay the royalties to plaintiff, and sent a check for the sum specified, but withheld the commission, so called, claiming to offset it against a debt owing it from said president. Held, that under the contract as made the entire amount offered was'to go to the president by way of royalty for the use of the patents ; that the eonti act inured to the benefit of plaintiff, and that it was entitled to the commission as well as the other sums.
    Appeal from judgment on report of referee.

      Charles E. Patterson, for app’lt; G. W. Cotterill, for resp’t.
   O’Brien, J.

The single question involved is, whether the defendant should pay to the plaintiff, or to William D. Mann, five per cent, on the contract price, as royalty for using the plaintiff’s-patents in the manufacture of four sleeping cars sent to Australia.

It was conceded on the trial that Mann was originally the owner of the letters patent covering the inventions used by the defendant in the manufacture of four sleeping cars, and that the said letters patent were assigned to plaintiff prior to the making of the contract with defendant. And were it not for a doubt which evidently existed in the mind of Mann as to the extent and character of his assignments to the,plaintiff, no controversy could have arisen. The fact, however, that Mann assumed that, although he had assigned his letters patent covering the inventions which the defendant used, and for which it agreed to pay a compensation, he still retained his ownership with respect to cars-to be manufactured for export, for which the cars manufactured by defendant were intended, introduced in the relations between the parties confusion and doubt, which has necessitated this action. It is evident, from an examination of the correspondence-between the parties, beginning with the letter from Mann to the-defendant under date of July 3, 1885, that Mann, though known by the defendant to be the president of the plaintiff company, acted as though the contract he was about to make with the-defendant company was on his behalf and for his own benefit for that letter begins by saying: “I have an opportunity to build four cars for Australia. * * * I propose to, furnish the following articles myself,” and it closes as follows: “If so, will you -quote me a price, I furnishing the materials as above." In answering to this letter, under date of July 6th, and particularly in the letter of July 7th, which was the letter containing the agreement on the part of the defendant, the defendant wrote under the impression that it was dealing with Mann personally, for throughout the latter letter it is the individual and not the president of the company who is referred to and spoken of by defendant.

We think that this error into which seemingly both Mann and the defendant had fallen is important and material, as bearing upon the question whether the contract made between the parties involved the payment of royalties to one and, as separate and distinguished therefrom, a commission to another. It also has a bearing upon the weight to be attached to the expression in that letter, upon which so much stress is placed by the defendant as supporting the view of a divisible obligation, viz: “ and to this we will add to contract price a commission of five per cent, to you.” Keeping in mind the language quoted from Mann’s letter of July -8, what the defendant proposed to do, and for whom, is thus expressed in the answer thereto of July 7, already referred to:

“ In the first place, we would propose furnishing the materials mentioned in yours of the 3rd inst., as the materials you would furnish, you giving us description of the kinds, and such other information as you have at command. In other words, we to build and furnish the cars complete for a round sum, and in the second place, we would suggest your giving us your influence with Mr. Evans to secure this order, and in the event of our securing the same, we would pay you royalty as per your letter to us of September, 1884, giving us permit to build for export, to wit: $1,000 per car for royalty on sleeping car patents, and $250 for patent ventilation, making $1,250 per car, and to this we will add to contract price a commission of five percent, to you.”

We think that the claim made by Mann as to not having assigned his rights with respect to cars intended for export, and the suusequent abandonment of such position, together with the entire correspondence between the parties, show that when the contract was made between them it was a single and indivisible contract and agreement made by the defendant, under which it was to pay in the way of royalty and commission the amounts as specified in the letter of July 7; that, as correctly held by the referee, these words royalty ” and “ commission ” were used interchangeably and as synonymous by both the parties throughout their correspondence ; and that the claim now advanced, that the royalties were to go to plaintiff, and a commission, as separate and distinct therefrom, to Mann, is purely an afterthought, resorted to, no doubt, for the very proper purpose of assisting the defendant to ■collect, in part at least, the sum which was due it from Mann.

This view is enforced by the fact that, although the matter of what was to be paid by the defendant, namely, $5,000 and five per cent, was always referred to and spoken of as royalties, it was not until the 4th of January, 1886, that, in enclosing the note for $5,000, the defendant for the first time separated the $5,000 claim, which it conceded belonged to plaintiff, and the five per cent, which is thus referred to in the letter of that date: “ Our counsel advises us, as we have judgment against Col. Mann for claims greater than the five per cent commission at the time he assigned his lights to your company, that,” etc. Thus, the position which, throughout the relations between the parties, the defendant had taken, of regarding the sums to be paid as payable to the same person under one indivisible contract, was continued down to December 19, 1885, by defendant writing: “We have no hesitation in saying we will pay your company the royalties, which we.much. prefer doing.” During all this time there was not the slightest intimation or suggéstion that there was any question with regard t» the five per cent, especially as an independent matter; and it would serve no useful purpose to take extracts from the letters written by defendant to show how consistent up to January, 1886, had been the latter’s position in regarding it as a single sum, whether spoken of as royalty or commission, and payable to a single person.

As we have said, the whole trouble arose out of the mistake into which Mann had fallen of regarding himself as the principal in the transaction in dealing with the defendant. The evidence shows that long prior to the contract the defendant knew that Mann was the president of the plaintiff company; and Mann himself testified that the assignments of the patents had been shown to Mr. Gilbert, one of the officers of the defendant company. This mistake, however, was finally straightened out, as shown by the correspondence with, and notification to, the defendant, by the withdrawal by Mann from his untenable legal position, and by the consent of .the person to whom Mann had attempted to make an assignment of the use of the patents for export trade to the payment to plaintiff.. The position, therefore, as shown by the entire transactions and correspondence, was that the defendant made a contract originally with Mann for the payment to him by way of royalty for the use of the patents the amounts specified in the letter of July 7, and that both Mann and the defendant subsequently discovered that the rights in and to this contract were justly and legally claimed as belonging to plaintiff.

Upon well settled principles of law, it being conceded by defendant itself that plaintiff was entitled to whatever was due by way of royalties, we fail to see why the plaintiff should not recover, as held by the referee, in addition to the other amounts, the five per cent on the contract price, which was referred to in, the letter of July 7th as a commission. It is evident that the entire amount there offered to be paid was intended to go to Mr. Mann by way of royalty for the use of these patents by the defendant; and that this is so is evidenced by Mr. Mann’s own letter in reply, stating that he quoted the same terms to other parties, which included the five per cent on the contract .price as sued for here, and which was therein spoken of and designated by Mr. Mann as a royalty to be paid for the use of such patents. That the defendant did not intend to pay a royalty to plaintiff, and in addition a commission to Mr. Mann separate and distinct therefrom, as contended upon the trial and this appeal, is conclusively shown by the testimony, and were it not for the language used, ‘‘a commission óf five per cent to you,” there would be no room for argument. But with this in the case, all the other facts appearing, and more particularly the fact that the defendant did not agree or intend to pay a royalty to anybody but Mann, whom defendant assumed owned the patent rights, are consistent only with an entire contract, under which the defendant was to pay to whoever was entitled thereto royalties to be made up in the manner indicated in the letter of July 7th. °

While, therefore, we differ with the view of the referee that the commissions in question were originally agreed to be paid the plaintiff, yet we think that the contract made with Mann inured by the operation of law to the benefit of the plaintiff. .Mr. Mann was assuming to act for himself, and the defendant was treating with him as the principal. But does it not become evident that where it turns out that both are mistaken, and where, as here, a contract is made with respect to the use of patents which were then owned by the plaintiff, that the defendant, after using the same, would be obliged to pay to the owner thereof, when, as here, it is evident who such owner is, the price agreed to be paid for the use of the inventions covered by such letters patent ?

We think that the conclusion of the referee was right, and that the judgment should be affirmed, with costs and disbursements..

Yah Brunt, P. J., and Follett, J., concur.


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. Leonardo Larubia, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Jurors—Competency—Bias.
    On a trial for murder committed with a pistol carried by the defendant, a juror on being challenged testified that he had a great prejudice because of defendant’s carrying a pistol; that he did not believe that any man had a right to carry a deadly weapon even with a permit; that there were many cases where people had deadly weapons, where if they did not have them there would be no murder and no great bodily harm, and that he was honest in the matter. Held, that, in the absence of a declaration on oath that such prejudice would not influence his verdict, it was error to overrule the challenge.
    3. Same—Challenge.
    Where a juror has been examined by the people upon the assumption that a challenge for implied and actual bias has been interposed, and at the conclusion of the examination the challenge is stated to be withdrawn, whereupon defendant cross-examines as though it were renewed on his behalf, and submits the challenge for cause, the question of the competency of the juror is before the court, although the provisions of the Codé have not been strictly complied with.
    Appeal from judgment of the court of oyer and terminer, convicting the defendant of murder in the second degree.

      S. S. Blake, for app’lt; De Lancey Nicoll, dist. att’y, (H. B. B. Stapler, of counsel), for resp’ts.
   Van Brunt, P. J.

In the consideration oí this appeal it will only be necessary to consider the exceptions raised to the overruling of the challenge of one of the jurors. The proceedings in reference to this juror are short, and they are inserted here precisely as they appear upon the record :

Abner McKinlejq who was sworn and examined, and testified as follows: Direct examination by Mr. Simms : “ I have no conscientious opinion in respect to capital punishment such as would preclude me from finding the defendant guilty of murder in the first degree, provided the evidence satisfied me of his guilt beyond all reasonable doubt. I do not know that I have any prejudice against the infliction of the death penalty by electricity. It would have no weight upon my mind in the consideration of the evidence in this case, or determining the degree of the verdict. I am not acquainted with Mr. Blake, the counsel for the defendant, and have no prejudice against the defendant on account of his nationality. I have not heard of this case before, and have no impression or opinion now as to the defendant’s guilt or innocence. Question. Do you know of any reason to prevent you from acting as a fair.and impartial juror if selected in this case? Answer. Yes, I do. Q. Please state it? A. Iam not a citizen of this state, and I do not believe I am liable to jury duty, and I therefore feel I am forced here against my will. The Court: I have decided that the juror is liable to jury duty under the laws of this state. That requires him to serve, and he should serve. The Juror: With all due deference to your honor’s decision, I differ. Mr. Simms: Challenge withdrawn. Cross-examination by Mr. Blake: Q. What is your business ? A. I

am an attorney at law, but I do not practice here in this city. I practiced in Ohio. I have been in practice. I was in active practice for fifteen or sixteen years. I have tried criminal cases. Q. You can give this man a fair and impartial trial? A. I don’t know whether I could or not. Q. Do you know of any prejudice growing out of this case other than that you are not liable to jury duty ? A. I do not believe the defendant wants me. Q. I may want you. A. I do not want to deceive you if I got into that jury. Any little pique I may have will not be taken for or against the defendant, and I do not believe the defendant wants me. I have no prejudice against his nationality. Q. Or any prejudice against him by reason of the fact that he carried a pistol ? A. Yes, a great prejudice. I don’t believe any man has any right to carry a deadly weapon. Q. Mot even with a permit? A. Mo, sir. He should be responsible for Ins acts. If he is a quarrelsome fellow, he should be responsible for his acts. Q. Sometimes men are assaulted without any provocation whatever. You are a lawyer. What is he going to do? A. There are so many cases where people have had deadly weapons, if they did not have them there would be no murder, nor no great bodily harm. Q. Sometimes if they did not have them they might be dead men. A. Mot as a general rule. I am absolutely honest in this matter. Q. You do not want to serve? A. I do not, and it would be a very great hardship if

I should be compelled to serve. Mr. Blake: I submit the challenge for cause. The Court: The challenge is overruled ;

exception taken. Mr. Blake: I suppose the challenge is with the People. Mr. Weeks: ■ We have no peremptory challenge. Mr. Blake: He is challenged peremptorily on the part of the defense.”

It is claimed upon the part of the defendant that the overruling of the challenge was error prejudicial to the defendant, and we are of the opinion that this point is well taken. It appeared that the killing in question was committed by the prisoner with a pistol which he had been in the habit of carrying; and upon the examination of the juror he was asked whether he had any prejudice against the prisoner by reason of the fact that he carried a pistol. His answer, as appears above, was : " “ Yes, a great prejudice. I don’t believe a man has any right to carry a deadly weapon. Question. Hot even with a permit ? Answer. Ho, sir; he should be responsible for his acts. If he is a quarrelsome fellow, he ■should be responsible for his acts. Q. Sometimes men are assaulted without any provocation. You are a lawyer. What is he going to do ?' A. There are so many cases where people have had deadly weapons, if they didn’t have them, there would be no murder, nor any great bodily harm. Q. Sometimes, if they didn’t have them they would be dead men. A. Hot as a general rule. I am absolutely honest in this matter.”

As far as this examination went it showed a prejudice against the prisoner from the fact of his carrying a pistol, and from the juror’s answer it appeared to be a strong prejudice. The witness was not asked to declare on oath that he believed such prejudice would not influence his verdict, and that he could render an impartial verdict according to the evidence ; but, with this statement of prejudice against the defendant standing almost unqualified, the challenge is overruled, and the juror pronounced by the court to be competent. While we think that, if the juror had declared upon oath that such prejudice would not affect his verdict, and the court was satisfied of that fact, its existence would not have disqualified him as a juror, without such declaration upon oath by the juror, there was nothing to show but what that prejudice would influence the juror in' the rendition of his verdict, and therefore he was incompetent. It is urged, however, upon the part of the People that this exception should not be allowed to prevail, because the submission of the challenge fails to show the ground of challenge. It is undoubtedly true that by § 380 of the Code of Criminal Procedure it is provided that, in a challenge or implied for actual bias, the causes stated in the Code must be alleged, and that, whenever the challenge may be overruled, they must be entered upon the minutes of the court, and that such requirement was not strictly complied with in the case at bar.

It will be seen that it was the understanding of all' the parties as to what the nature of the challenges were. We find the People, upon the juror being sworn, conducting an examination upon the assumption that a challenge had been interposed for implied bias upon one or more of the causes stated in the Code, and also a challenge for actual bias for the cause stated in the Code; and at the conclusion of the examination appears a statement that the People withdrew the challenge. Then" the prisoner cross-examines the juror as though the challenge had been renewed upon his behalf, and at the end of the examination the counsel submits the challenge for cause, which challenge is overruled, and an exception is taken. It is clear that it was the understanding of the court and counsel that a challenge for actual biaswaspending, and such challenge was overruled by the court. In fact the only provisions for the examination of a juror arise upon the trial of a challenge to a juror, and the court bad no authority to proceed unless the challenge was before it. Prior to this examination it would appear from the record that the question of a general challenge (viz. that the juror was disqualified from serving in any case) had been passed upon by the court, and therefore there remained no causes for challenge before the court but those for implied and actual bias, as to which he was examined by the parties. We think that the question as to the competency of the juror was before the court, and although the provisions of the Code were not strictly complied with, yet it was the understanding, both of the court and the parties, that a challenge for actual bias was being tried. It is claimed upon the part of the People, under the authorities of People v. Carpenter, 102 N. Y., 288; 1 St. Rep., 648, and People v. McGonegal, 48 id., 900, that jurors similar to the one now under consideration were pronounced qualified, and it was held not to be error. But it will be found in all those cases that the juror had declared upon oath that the seeming disqualification would not in any manner influence his verdict, a feature conspicuously absent in the case at bar. We think, for the error committed in the overruling of the challenge to this juror, the judgment should be reversed, and a new trial ordered.

O’Brien, J., concurs.


author: Per Curiam.

text:
    Sells E. Woodhull, Resp’t, v. The Mayor, etc., of New York et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Appeal—Case.
    A case and exceptions which lias not been settled by the judge or referee who tried .the case, or ordered filed, forms no part of the judgment roll and is not brought by the notice of appeal from the judgment before the appellate court for review.
    Appeal from judgment in favor of plaintiff rendered on a trial before a jury, and from order denying motion for a new trial

      William H. Clark and Almet F. Jenks (Theodore Connoly and Terence Farley, of counsel), for app’lts; William J. Gaynor and Paul E. De Fere, for resp’t.
   Per Curiam.

December 8, 1892, a verdict in favor of the plaintiff for $4,000 damages was rendered. On the next day the defendants moved on the judge’s minutes for a new trial on all the grounds specified in § 999 of the Code of Civil Procedure.” On the same day an order was entered granting the motion, “ unless the plaintiff consents to the reduction thereof to the sum of $1,500, and, if such consent be made, that said motion for a new trial be denied.” December 10th the plaintiff filed a stipulation-reducing the verdict to $1,500, and on the 12th of December, 1892,. a judgment was entered for $1,500 damages and $227.07 costs; total, $1,727.07. On the 6th of January, 1893, (twenty-five days after the entry of judgment), a further order was entered, reciting “that, a verdict having been rendered on the second cause of action in favor of the plaintiff for the sum of $4,000, and the said verdict having been reduced to $1,500, and defendants having moved to set aside said verdict, and for a new trial, on all the grounds specified in § 999 of the Code of Civil Procedure,” and directing “ that the said motion be, and is hereby in all respects denied.” One of the grounds mentioned in § 999 is that “the verdict is for * * * insufficient damages.” Afterwards, and in the month of January, 1893, the defendants severally appealed from the judgment and from the order entered January 6,1893. The record before us contains the judgment roll, the order of January 6, the notices of appeal, and what purports to be a case containing exceptions. This case sets forth the questions put to the witnesses and the answers given by them, and is evidently nothing but a copy of the stenographer's minutes of the proceedings which took place on the trial. This is a violation of general rule Ho. 34. This so called “case’’.has never been settled by the judge who tried it, as required by § 997 of the Code of Civil Procedure. Ho. 35 of the general rules of practice provides that “ no case or exceptions to be annexed to the judgment shall hereafter be filed by the clerk of the court, unless the same is so ordered by the judge or referee who tried the cause.” The so called “case” not having been ordered filed with the clerk, and annexed to the judgment roll, it forms no part of the roll, and is not brought by the notice of appeal from the judgment before this court for review. The case not having been settled nor signed by the judge who tried it, we cannot review the order of January 6, 1893, denying a motion for a new trial, even if we assume it was made “ at the same term ” at which the action was tried. Heretofore the court has often simply declined to hear cases presented by such records, and has allowed them to be withdrawn for correction ; but this has not been sufficient to stop this irregular practice. The notices of appeal do bring before this court for review the judgment roll and the order of January 6th, but nothing else. Ho error appearing upon the face of either, both must be affirmed, with costs.

Van Brunt, P. J., O’Brien and Follett, JJ,, concur.


author: Follett, J.

text:
    Daniel Daly, Pl’ff, v. Mendel W. Greenberg, Def’t.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Will—Construction—“ Issue.”
    Testator, by his will, devised certain land to a daughter “during her natural life, and if, at the time of her death, she shall have lawful issue then living, I devise to such child or children the said house, lot of ground and appurtenances, to them, their heirs and assigns, forever.” Three other liie estates were also created with remainders disposed of in the same words. Seld, that the word “issue” embraced only the daughter’s children living at her death, and not her descendants generally who were living at that time.
    Submission of controversy for the purpose of obtaining a construction of a will and specific performance of a contract for the purchase of real property by defendant.

      Daniel Daly, pl’ff in person; Adolphus D. Pape(Samuel Campbell, of counsel), for deft.
   Follett, J.

January 1,1817, Ithamer Healy died seised of a lot in the city of New York, the title to which is the subject of this controversy. He left a last will and testament, which was duly probated, by which he devised to his eldest daughter this lot “ during her natural life, and if, at the time of her death, she shall have lawful issue then living, I devise to such child or children the said house, lot of ground and appurtenances, to them, their heirs and assigns, forever.” Ann Healy and John Dick intermarried. John Dick died many years ago, and Ann Healy Dick died March 20, 1890, leaving a last will and testament by which she devised and bequeathed all of her estate to her two daughters, Louisa A. Brush and Clarissa A. Jackson. Said Ann Healy Dick had a son, Thomas Scott Dick, who died before her, leaving two sons, Joseph 0. Dick and Arthur W. Dick. These sons were the only heirs of Thomas S. Dick. February 23,1880, Arthur W. Dick left his home, saying that he was going to kill himself, since which time he has not been heard from. He had a wife, who is still living, but had no children. Afterwards Louisa A. Brush, Clarissa A. Jackson and Joseph C. Dick conveyed the lot to the plaintiff. January 24, 1893, the parties to this controversy entered into a written contract whereby the plaintiff agreed to sell and convey to the defendant, who agreed to purchase and pay for, this land. The defendant now refuses to perform his com tract on the ground that the plaintiff is not the owner of the entire fee. The question submitted is, did the plaintiff acquire title in fee simple by the conveyance from Louisa A. Brush, Clarissa A. Jackson and Joseph 0. Dick? Otherwise stated, the question is, does the word “issue,” as used in the sixth clause, by which the lot was devised to Ann Healy Dick, embrace all of her descendants living at her death, or only her children then living ? If the term embraces all of her descendants living at her death, it is possible that Arthur W. Dick, her grandson (a great grandson of testator), was alive at the date of her death, March 20, 1890, in which event he took an interest in the property.

It seems to us that, by the terms of the sixth clause, the word “ issue ” was defined by the testator to mean “ children,” and that it does not include grandchildren. The words are: “ If, at the time of her (Ann Healy Dick’s) death, she shall have lawful issue then living, I devise to such child or children the, said house, lot of ground and appurtenances, to them, their heirs and assigns, forever.” That the word “issue” was understood by the testator to mean “ children ” is made apparent by the language of the fourth, fifth, and seventh clauses. By the fourth clause real estate was devised by the testator to his son William Healy “during his natural life, and if, at the time of his death, he shall have lawful issue then living, I devise to such child or children the house, lot of ground and appurtenances, to them, their heirs and assigns, forever.” By the fifth clause the testator devised to his son Ezra a lot of land during his life, and the remainder was disposed of in the same words quoted from the fourth and sixth clauses. By the seventh clause the testator devised real estate to his daughter during her natural"life, and disposed of the remainder in the same language employed by him in the fourth, fifth, and sixth clauses. Here we have four independent clauses, each devising a piece of real estate for life to a child, with the remainder disposed of by the same language. The words “ issue ” and “ children,” as used in this will, have the same meaning, and are synonymous. This case falls within the rule laid down in Palmer v. Horn, 84 N. Y., 516, where it was said:' “ The word ‘issue ’ is an ambiguous term. It may mean descendants generally, or merely children ; and whether, in a will, it shall be held to mean the one or the other, depends upon the intention of the testator, as derived from the context of the entire will, or such extrinsic circumstances as can be considered. Here it is clear, from indications found in this will, that the testatrix used the term ‘ issue ’ as synonymous with ‘children.’ She did so in several clauses of the will, and in every clause under consideration the words ‘said children ’ refer to the ‘lawful issue’ before specified. By the word ‘children’ the testatrix herself has interpreted the word ‘issue.’ ”

It is urged that in the following clause the word “ issue ” is used in a broader sense, embracing all descendants, and therefore it should be held that it was used in the same sense in the fourth, fifth, sixth, and seventh clauses of the will. The clause referred to is as follows: “ And, further, if any or either of my said chil-

dren (referring to the four mentioned) should die leaving no lawful issue, then I will and ordain that the part or parts to such one or more as shall so die shall be equally divided among the survivor or survivors of them, their heirs and assigns, forever.”

This clause was designed to provide for an event which has not happened, for Ann Healy Dick did "not die without issue, but left, her surviving, two children, and the language of the sixth clause, “I devise to such child or children,” carried the entire remainder to them. It follows that the plaintiff, by the convejmnce mentiotied, acquired the absolute fee in the land, and that the defendant must perform his contract, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Louis Greenblatt, App’lt, v. David Hermann, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Executors and administrators—Sale of decedent’s real estate— Collateral relatives—Petition.
    A petition for the sale of real estate to pay debts recited that decedent left

      no “ lawful issue, widow, father, mother, brothers, sisters or'descendants ■of them, him surviving; that his heirs at law are first cousins and descendants of first cousins, and their names and residences are as follows giving a list of such persons, who were collateral relatives of the father. On the hearing there was evidence that there were no other heirs at law than those so’ named. Defendant acquired title to said property through the purchases and contracted to sell the same to plaintiff, who refused to take on the ground that said proceedings were defective. Held., that the allegation of the petition that the persons named were the heirs of the decedent was, in legal effect, an allegation that they were all of his heirs, and thatit was not necessary to affirmatively allege that the mother left no heirs; that this allegation and the evidence were sufficient to give the surrogate jurisdiction of the proceeding, and the plaintiff failing to show that there were heirs of the mother, who were not made parties, failed to establish any defect in the title.
    2. Vendor and purchaser—Specific performance.
    Where a purchaser refuses to perform on the ground of defect in the title, and in a suit for specific performance fails to show any defect, he is not entitled to recover the amount paid on the contract, nor to a specific performance thereof.
    Appeal from judgment dismissing the complaint on the merits.

      Henry S. Van Duzer, for app’lt; E. F. & A. C. Hassey (Samuel H. Benton, of counsel), for resp’t.
   Follett, J.

This action was brought by a vendee against & vendor to compel the specific performance of an executory contract, or, in case it could not be performed, to recover the money that he had paid on the contract, together with damages for its nonperformance. October 1, 1840, Charles W. Nichols purchased the land, the title to which is the subject of this action, taking a full covenant deed, which was duly recorded October 10, 18-10. On the 27th day of January, 1879, Nichols died seised of the premises. He died intestate, leaving no widow, no ancestors, and no descendants. His father and mother, Benjamin and Margaret Nichols, died before him, leaving no ancestors and no descendants, except Charles W. Nichols. Under such circumstances, the land having been acquired by purchase, it descended to the collateral heirs of his father and mother in equal proportions, if both left such heirs. On the 19th of February, 1879, letters of administration were granted to John B. Knapp, James H. Nichols, and Augustus H. Allen, on the estate of Charles W. Nichols, by the surrogate of the county of Kings. The decedent’s personal estate was insufficient to pay his debts, and he left no real estate, except that involved in this litigation.

On the 11th of September, 1880, more than eighteen months after letters were issued, the administrators filed their petition in the surrogate’s court for leave to sell this real estate for the purpose of paying the intestate’s debts. It was alleged in the petition “ that the deceased left ho lawful issue, widow, father, mother, brothers, sisters, or descendants of them, him surviving ; that his heirs at law are first cousins, and descendants of deceased first cousins, and their names and residences, and the names and residences of the respective husbands or wives of such asare married, are as follows, to the best (of) our knowledge, information ami belief.” Then follows a list of more than fifty persons who are alleged to be the heirs at law of the decedent. All of these persons were the collateral relatives of the intestate’s father, and no mention is made of any collateral relatives of the intestate's mother.

It is urged that the petition is fatally defective, and conferred no jurisdiction upon the surrogate to entertain the proceedings, because it is not alleged that the intestate’s mother left no collateral heirs. A citation was duly issued and served upon the persons mentioned in the petition. On the hearing before the surrogate a so-called ancestral tree or schedule of the heirs of Charles W. Nichols was exhibited, and verified by oral evidence. By this tree it appears that the persons named in the petition, and cited, were the heirs, on the father’s side, of Charles W. Nichols. It also appears that the mother, Margaret, was dead, and it does not disclose that she left any collateral heirs. James H. Nichols, a member of the family, testified that he knew the decedent, and that “ there are no other heirs at law, or descendants of heirs at law, other than are mentioned there,’’ in the schedule. Upon this evidence, and upon evidence that it was necessary to sell the real estate for the payment of debts, the property was ordered to be sold. It was sold at public auction, and conveyed to the purchaser, which conveyance was confirmed by the surrogate’s court. The defendant in this action acquired his title to the land by mesne conveyances from the purchaser at the surrogate’s sale. April 13, 1892, the parties to this action entered into an executory contract by which the plaintiff agreed to purchase, and the defendant agreed to sell, the above-mentioned premises for $19,-566, to be thereafter paid ; the defendant agreeing to convey to the plaintiff the title to the land in fee simple, free and clear of all incumbrances except those mentioned in the contract. The plaintiff paid $1,500 on the contract, but at the time mentioned for its performance refused to accept of a conveyance, which he admitted was satisfactory in form, because, as he alleged, the proceedings in the surrogate’s court vested no title in the purchaser at the sale. On the trial the proceedings in the surrogate’s court were introduced in evidence, but the plaintiff failed to show, and did not attempt to show, that the decedent’s mother left collateral heirs, and there is no evidence in the case of the existence of such heirs.

It is insisted that the proceedings in the surrogate’s court are fatally defective because it was not alleged in the petition by which the proceedings were instituted to sell the land that Margaret Nichols had no collateral heirs, and because .this fact was not established by common-law proof before the surrogate’s court. We are of the opinion that the allegation that the persons named in the petition were the heirs of the decedent is, in legal effect, an allegation that they were all of his heirs, and that it was not necessary to affirmatively allege that Margaret Nichols left no heirs. As before stated, a member of the family testified on the hearing-before the surrogate that the decedent left no other heirs than those mentioned in the schedule, which were the same as those mentioned in the petition. This allegation and this evidence were sufficient to give the surrogate jurisdiction of the proceeding; and, there being no evidence offered tending to show that there were any persons not mentioned in those proceedings who were the heirs-of Margaret ¡Nichols, the plaintiff failed to establish any defect in the title of the defendant. The burden was upon him to show that defects existed. The mere fact that it was possible that Mar garet might have left collateral heirs is not sufficient to entitle him to recover in this action. The plaintiff having refused to perform his contract without adequate cause, and not having shown that the defendant’s title was defective, he is not entitled to recover the amount which he paid on the contract, nor is he entitled to a specific performance thereof.

The case containing exceptions, which is printed with the judgment roll, does not appear to have been -settled by the judge before whom it was tried and ordered filed. Under such circumstances it forms no part of the record, and the questions which the appellant seeks to raise are not brought before this court for review by an appeal from the judgment However, we have considered the case on the merits.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.