author: Ruger, Ch. J.

text:
    The People ex rel. Stephen L. Vanderveer, App’lt, v. Thomas A. Wilson et al., Resp’ts.

      (Court of Appeals,

      Filed January 20, 1891.)

    1. Taxation—Lands divided by town ob county line—Whebe assessable.
    Under the provisions of Laws 1886, chap. 315, a farm in Kings county, consisting of a single tract, a portion of which is in the town of Flatlands, a portion in the town of Matbush, and a portion in the 36th ward of the city of Brooklyn, on which latter portion the owner resides, is assessable by the city of Brooklyn.
    3. Same.
    Chapter 411, Laws 1885, which provides that all lands in coufities of a certain size shall be practically assessable as norwesident lards, is not in conflict with chap. 315, Laws 1886, providing that occupied farms or lots lying in two or more towns, wherever situated, should be assessable in the town where the owner resides. The one determines the particular ward or town which is entitled to the benefit of the taxes from the particular farm or lot, and the other the mode governing the collection of the tax after levy.
    3. Same—“Hon-besident”—“Unoccupied.”
    When a statute speaks of unoccupied lands it does not include all nonresident lands, nor does the term non-resident lands necessarily include the subject of unoccupied lands.
    Appeal from judgment of tlie supreme court, general term, second dejiartment, affirming judgment and order of special term in favor of d.efendants, in proceedings by certiorari to review an assessment by the board of assessors of the city of Brooklyn of the lands of the relator for general taxes for year 1888.

      John H. Kemble, for app’lt; Almet F. Jenks, for resp’ts.

       Affirming 34 N. Y. State Rep., 893.

   Ruger, Ch. J.

This case arises upon the following facts: Previous to the year 1886 the relator was the owner of a farm in Kings county containing 109 acres of land, lying in a compact or connected form in the several adjoining towns of Kew Lots, Flat-lands and Flatbush, of which about thirty acres lay in the. town of Kew Lots, In that year the town of New Lots was, by chapter 335 of the Laws of that session, annexed to and made a part of the city of Brooklyn and constituted its twenty-sixth ward. The farm was occupied by the relator and he resided on that part lying in the town of Hew Lots, and the question relates to the place where it is assessable. The only provision in said act affecting the taxabilitjr of real estate is the following: “For the purposes of taxation the real estate included in the territory hereby annexed, shall be assessed at the value of the land for agricutural purposes.” This affected only the fate of assessment. The assessors of Brooklyn in the year 1888 assessed the whole farm in that city, and this proceeding was instituted to review such assessment, the relator claiming that such assessors had no authority to assess that portion of the farm lying outside of the limits of the city. The courts below have held that the whole farm was assessable in Brooklyn, and it is conceded by the relator’s counsel that unless chapter 315 of the Laws of 1886 repeals, amends, or controls chapter 411 of the act of 1885, the order is correct.

We are of the opinion that chapter 315 furnishes the correct rule on the subject, and if the law of 1885 is in any respect inconsistent with, or tends to render the act of 1886 inoperative, it is repealed by that act. By the law of 1886, article 1, title 2, chapter 13, part 1, of the Revised Statutes, was amended by adding thereto this section: “ Sec. 4. When the line between two towns, wards or counties, divides a farm, the same shall be taxed, if occupied, in the town, ward or county where the occupant resides. If unoccupied, each part shall be assessed in the town, ward, village or county where the same shall lie.” “ Sec. 2. All acts or parts of acts inconsistent with this act are hereby repealed.”

This is the latest act on the subject, and must necessarily control all prior acts inconsistent therewith.

The relator attempts to support this appeal by claiming that there is an inconsistency in the system of assessment provided by the respective Laws of 1885 and 1886, and that the act of 1886 ought not to be construed to repeal any part of the act of 1885. The argument, so far as we understand it, is that there is no distinction between the phrases “ non-resident ” and “ unoccupied lands,” as used in the statutes, and inasmuch as the act of 1885 has made a special rule and abolished the distinction between resident and non-resident lands in counties having over 300,000 inhabitants, that the act of 1886 was not intended to affect the rule of assessment applicable to such counties.

We are quite unable to see any conflict between these acts. The act of 1885 substantially provided that all lands in counties of a certain size should be practically assessable as non-resident lands, and the act of 1886 provided that occupied farms or lots lying in two or more towns, wherever situated, should be assessable in the town where the owner resided. Both acts can be enforced with unrestricted operation. The act of 1885 makes the land assessable as non-resident land, whether occupied or not, and that of 1886 makes it assessable, if occupied, in the city or town where the occupant resides, and both laws have a legitimate and harmonious operation. The one determines the particular ward or town which is entitled to the benefit of the taxes from the particular farm or lot, and the other the mode governing the collection of the tax after levy.

The taxes on this land, whether assessed in one town or another, would be collected in the same way, because each town lies in a county having the requisite population to make its taxes • collectible as upon non-resident lands, and the mode of collection will be the same wherever it is assessed.

Our views are confirmed by a consideration of the essential distinctions existing between the terms “unoccupied” and “ nonresident ” lands, as used in popular phraseology. ' There is not only an essential distinction between them, but the statutes relating to assessment and taxation have uniformly recognized this difference.

This very clearly appears by the first four sections of art. 1, tit. 2, chap. 13, pt. 1 of the R. S., p. 989, 7th ed., reading as follows : “ Sec. 1. Every person shall be assessed in the town or ward where he resides when the assessment is made for all lands then owned by him within such town or ward and occupied by him or wholly unoccupied.” Section 2. “Lands occupied by a person other than the owner may be assessed to the occupant as lands of non-residents, or if the owner resides in the county in which such lands are located, to such owner." This was amended by chap. 152 of the Laws of 1878, to read as above. Section 3. “ Unoccupied lands not owned by a person residing in the ward or town where the same are situated shall be denominated ‘lands of non-residents.’” Section 4. “When the line between two towns or wards divides a farm or lot the same shall be taxed, if occupied, in the town or ward where the occupant resides, if unoccupied each part shall be assessed in the town in which the same shall lie, and this whether such division line be a town line only or be also a county line. ” This section was slightly amended by chap. 287 of the Laws of 1871, and that law was repealed by chap. 355 of the Laws of 1872, thus leaving the act in question without a § 4 until the act of 1886 substantially restored the original law of 1871.

Chapter 427, Laws of 1855, as amended by chap. 101, Laws of 1876, provides for the collection of taxes on land assessed to a resident which are returned as unpaid on account of the premises becoming vacant by the removal of an occupant, by authorizing the re assessment of the same in the subsequent year as non-resident lands. It is apparent from these provisions that lands may be occupied by an owner and assessed as non-resident- lands although occupied and cultivated. Non-resident lands may be occupied or not occupied, according to circumstances, while occupied lands may belong to non-resident owners and yet be assessable as resident lands in>the several towns wherein they lie. It is clear 'therefore that when a statute speaks of unoccupied lands we have no warrant for supposing it was intended to include all non-resident lands, and neither does the term non-resident lands necessarily include the subject of unoccupied lands.

With this understanding the statutes governing the disposition of this case are clear and consistent. The act of 1885 does not assume to lay down any rule as to the place of assessment of occupied lands divided by town, ward or county lines, and the act of 1886 does in express terms lay down the rule governing that subject and its language is broad and unrestricted.

We think the order of the court below is right and should be ■affirmed.

Order affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Follett, Ch. J. Bradley, J. (dissenting,)

license: Public Domain

text:
    Sarah M. Mygatt et al., Resp’ts, v. George S. Coe, App’lt.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    1. Deed—Covenants of warranty—When they bun with the land.
    Covenants of warranty and of quiet enjoyment entered into jointly by the owner of the fee and a stranger to the title, do not run with the land as against the stranger, and are not available in favor of a subsequent grantee who holds no assignment of the cause of action arising from the breach.
    2. Same.
    It is not necessary that privity of estate, within the meaning of the feudal law, mutuality, should exist between the covenantor and the covenantees or his successors in interest to carry a covenant of warranty to subsequent grantees, but unless there is either mutuality or succession of interest this covenant will not run with the land.
    3. Same.
    Where the only privity which existed between the covenantor and the covenantee was by contract it is insufficient to carry the benefit to subsequent owners of the property to which the covenant relates.
    (Bradley, Haight and Brown, JJ., dissent.)
    Appeal from a judgment of the general term of the first judi■cial department, affirming a judgment entered on a decision of the special term.
    On the 15th day of February, 1856, Ebenezer L. Roberts acquired through Charles Leech, a referee, an unincumbered estate, in fee simple, in the premises described in the complaint, and, to secure the payment of $5,500 of the purchase-price, executed and delivered on that day a mortgage on the premises to Leech, as referee, which was duly recorded on the next day, and became the first lien. May 15, 1856, Ebenezer L. Roberts and his wife conveyed the premises, in fee simple, subject to said mortgage, to William Tasker, who, on the same day, executed and delivered, a mortgage on-said premises to secure the payment of $1,800 to Ebenezer L. Roberts, which was duly recorded on the next dav, and became the second lien. October 1, 1856, Tasker conveyed the premises, in fee simple, to Ephraim. H. Howell, by a deed, dated, that day, which recited a consideration of $12,000, that it was subject to the first mortgage, but made no reference to the second mortgage, and contained covenants of seizin against incumbrances of warranty and for further assurance. This deed was duly recorded December 4, 1856. September 18, 1857, Ebenezer L. Roberts began an action against William Tasker, the mortgagor, Ephraim H. Howell (then the owner of the fee), and Cecilia A. Howell, his wife, to foreclose his said mortgage. The-summons was duly and personally served on William Tasker and Cecilia A. Howell, but before it was served on Ephraim H. Howell, and on the 19th of October’, 1857, he disappeared, and for some months it was believed that he had left the state. In Rovember, 1857, the summons was ordered served upon him by publication, and the. statutory requirements were, in form, complied with. Howell had not left the state, but committed suicide (as was discovered'in March, 1858) on the 19th of October, 1857. He died intestate, seized in fee of said premises, and left five in- • fant children, who were his heirs-at-law, and a widow. February 17, 1858, a judgment of foreclosure and sale was entered in this action, and March 13, 1858, the lands were sold and assumed to be conveyed under said judgment to Ebenezer L. Roberts. These proceedings were had in ignorance of' the fact that Howell was dead. Roberts recorded his deed, took possession under it, and July 15, 1858, he paid off the first mortgage for $5,500, and assumed to convey the premises to Almira S. Coe by a deed which ■ she duly recorded, and she immediately entered into' possession of the premises thereunder, and continued therein until April 12, 1867, when, in consideration of $18,500, she assumed to convey the premises to Raney Fisher by a warranty deed,, in which George S. Coe, her husband, joined. By this deed Almira S. Coe and George S. Coe jointly covenanted: (1.) That Almira S. Coe was seized of the premises. (2.) That she had good right to convey them. (3.) That the premises were unincumbered. (4.) That the grantee should quietly enjoy the premises. (5.) That they would give further assurance. (6.) That they, their heirs and representatives, would forever warrant and defend the grantee, her heirs and assigns, against all persons lawfully claiming or to claim the same.
    The grantee recorded her deed and entered into possession thereunder, and December 21, 1869, assumed to mortgage the premises, to the plaintiffs to secure the payment of $15,000, which mortgage was duly recorded. , On the 19th of April, 1871, Raney Fisher assumed to convey the premises in fee to one Henry W. Fuller, who entered into possession under his deed and remained therein until Rovember 11, 1874, when he assumed to convey said premises in fee to Clara B. Leavitt, who entered into possession under her deed. In 1878 the heirs-at-law of Ephraim H. Howell recovered the land by an action in ejectment and ousted Clara B. Leavitt. Thereafter the plaintiffs began an action against Raney Fisher, Charles J. Fisher, her husband, Henry W. Fuller, Clara B. Leavitt and James M. Leavitt, her husband, for the foreclosure of their said mortgage for $15,000, which resulted in a judgment of foreclosure June 5, 1879, and, pursuant to this judgment, the premises were assumed to be sold and conveyed August 14,1879, to the plaintiffs for $2,000, that being the highest sum bidden at the sale. 85 N. Y., 30. In November, 1879, the judgment of ejectment was opened and the plaintiffs in this action were allowed to come in and defend, and on the 27th of January, 1883, a judgment was entered in the ejectment action against these plaintiffs, which was affirmed by the court of appeals April 29, 1884, 95 N. Y., 617, and May 10, 1884, the judgment of the court of appeals was made the final judgment of the court of original jurisdiction. The plaintiffs never, at any time, had possession of the premises.
    January 3, 1884, Almira S. Coe died, and in November of that year this action was begun to recover the amount of the mortgage given by Nancy Fisher to the plaintiffs,'with interest thereon from May 1, 1878, on the ground that the covenants of seizin, for quiet enjoyment and general warranty were broken. The case was tried before the court without a jury, which ordered a judgment for the plaintiffs for the amount due on the mortgage for principal and interest.

      Sidney S. Harris, for resp’ts; W. S. Cogswell, for app’lt.
   Follett, Ch. J.

Mrs. Fisher, had she been evicted and brought her action in the lifetime of Mrs. Coe, could have recovered her damages of this defendant, because he had covenanted directly with her, under his seal, that he would indemnify her for the damages sustained by an eviction. Though Mrs. Coe died before this action was begun, the question of the liability of a surviving joint contractor, Risley v. Brown, 67 N. Y., 160; Randall v. Sacked, 77 id., 480, is not raised by the record, and it was conceded on the argument in this court that it does not appear whether the defendant received the whole or any part of the consideration of the deed. Mrs. Coe having no title when she conveyed to Mrs. Fisher, the covenants of seizin and of right to convey were broken by the delivery of her deed and became choses in action, which were not transferred to the subsequent grantees, or, in other words, these covenants did not run with the land. Greenby v. Wilcocks, 2 Johns., 1; Abbott v. Allen, 14 id., 248; McCarty v. Leggett, 3 Hill, 134; Mott v. Palmer, 1 N. Y., 564; Chapman v. Holmes, 5 Hals., 20; 2 Dart’s Vend., 6th ed., 881; Rawle Cov., 5th ed., §§ 69, 202. The plaintiffs must recover, if at all, for a breach of the covenants of warranty and of quiet enjoyment

The important question in this case is, whether covenants of warranty and of quiet enjoyment entered into jointly by the owner of the fee and a stranger to the title run with the land as against the stranger, and are available in favor of a subsequent grantee, who holds no assignment of the cause of action arising from the breach.

Had the plaintiffs been able to allege and prove a deed in which the defendant and his wife had assumed to grant, and had they delivered possession of the premises described, and had convenanted that they were lawfully seized, had good right to convey, and that they would forever warrant and defend, the plaintiffs might, by the aid of the doctrine of estoppel, have prevented this defendant-from proving, and the court from finding, that he never had any title, estate or interest in the land. But the parties agreed and the court found that Boberts assumed to convey the premises to Almira S. Coe. The plaintiffs alleged, which the defendant did not-deny, and proved that the defendant and his wife covenanted that she was lawfully seized of an absolute and indefeasible estate of inheritance in fee simple in the premises and had good right and lawful authority to convey them. Our attention is called to the-finding (the 11th), that the defendant and his wife joined in a deed purporting to convey the land in fee simple to Nancy Fisher. This finding is not inconsistent with the findings and facts admitted already referred to. It is not therein found that this defendant assumed to convey any estate in the premises, nor is it found that he covenanted that he or they were seized and had a right to convey the premises ; nor can we infer such a fact in the face of the allegation in the complaint that Mrs. Coe assumed to have the entire title to the premises, and, in legal effect, that the defendant was a stranger to it. Facts admitted by the pleadings have -the same force as facts found. If the facts found and admitted are inconsistent, the appellant is entitled to rely upon those most-favorable to him. It is unfortunate that the deed which fixes the rights of these parties is not contained in the case; but if a new trial is had this defect will be remedied, and the exact connection of this defendant with the conveyance will be made clear.

There are three manner of privities, viz.: (1.) Privityincaseof estate only; (2.) Privity in respect to contract only. (3) Privity in. respect to estate and contract together. 2 Sugd. Vend., *714;, 4 Cruise’s Dig., *376; Greenleaf’s Ed., 458.

The term privity in estate denotes mutual or successive relationship to the same rights of property. Stacy v. Thrasher, 6 How., U. S., 44-69; Greenl. Ev., §§ 189, 523; Big. Est, 5th ed., 347. ‘‘ There is a certain privity between the grantor and grantee' of the land. It is not the privity arising upon tenure, for there is no fiction of fealty annexed. It is, however, the same sort of privity which enables the grantee of a purchaser to maintain an action upon the covenants of title given to his vendor; and it is, moreover, a privity of the same nature with that which obtains-between the grantor and grantee of terms for life and for years.” Van Rensselaer v. Hays, 19 N. Y., 68, 91.

There was no mutual relationship between the defendant and Nancy Fisher or her grantees, nor was there any successive relationship between him and Nancy Fisher or her grantees.

It is not necessary that privity of estate, within the meaning of the feudal law, mutuality, should exist between the covenantor and the covenantee, or his successors in interest, to carry a coven* ant of warranty to subsequent grantees. Van Rensselaer v. Read, 26 N. Y., 558, 574, 575. But unless there is either mutuality' or succession of interest this covenant will not run with the land. In this state privity of estate, within the meaning of the law of tenure, seldom arises except between lessor and the successors of his-lessee, or when the covenantor retains a reversionary interest in the land conveyed.

Under the facts found there was no privity of estate, actual or assumed, between the defendant (the covenantor) and Nancy Fisher (the covenantee), only a privity by contract. The defendant having no estate, title or interest in, or possession of the land conveyed, there could be no privity in estate between him and Nancy Fisher, and not having covenanted or represented that he had an estate, he cannot be estopped from showing that he had none. The only privity which existed between the defendant and Nancy Fisher was by contract, which is insufficient to carry the benefit to subsequent owners of the property to which the covenants relate.

In Slater v. Rawson, 6 Met., 439, the defendant assumed to convey 150 acres of land by a deed containing covenants of seizin and warranty. The plaintiff succeeded to the estate of the defendant’s grantee through several mesne conveyances, but was evicted from twenty-two acres under a title which was paramount to that of the defendant. In an action to recover damages for the breach of the covenants it was held that, -it appearing that the defendant had neither title nor possession, his covenant of warranty did not attach to the land and run with it to subsequent grantees, and that the plaintiff could not recover. Upon the retrial the jury found that the defendant was in, and delivered possession of the land when he conveyed, and it was held, 6 Met., 450, that seizin was a sufficient estate to attach the covenant to the land and carry it to subsequent grantees, who could sustain an action for its breach. This rule is recognized in other cases. Fowler v. Poling, 2 Barb., 300; 6 id., 165; Beddoe’s Fxr. v. Wadsworth, 21 Wend., 120; Moore v. Merrill, 17 N. H., 75.

In Nesbit v. Nesbit, 1 Taylor (N. C.), 82; reconsidered and affirmed, Conf. Rep., 318, one Cranston conveyed land to Mary Montgomery, then under age, who afterwards became the wife of Arthur Newman, the consideration for the conveyance being paid by Hugh Montgomery, the father of Mary. Some years after, Hugh Montgomery, in consideration of sixty pounds, paid to him for the use of his daughter, conveyed the premises to one McConnell, covenanting for quiet enjoyment and for further assurance, to be executed by Mary when she should become of age. McConnell afterwards conveyed one-half of the land to the plaintiff, who being evicted by Mary Newman (formerly Mary Montgomery), sued Montgomery’s executors. A verdict was rendered for the plaintiff; but a motion to arrest the judgment was made, on the ground that the covenants in the deed from Hugh Montgomery to McConnell were covenants in gross, and did not run with the land to McConnell’s grantee. Taylor, J., in speaking for the court, said: “ From the whole of this case, it may be laid down as a rule, without any exception, that a covenant to run with the land and bind the assignee must respect the thing granted or demised, and that the act covenanted to be done .or omitted must concern the lands or estate conveyed. But when it appears upon the face of the declaration that the defendant's testator, who sold this lot, neither had nor pretended to have any title to it, that, on the contrary, Mary, his daughter, had the complete seizin under the deed from Cranston: that the testator having conveyed no title to McConnell, the plaintiff could, consequently, derive none from him; it may be asked what is there to create any privity between these parties ? The maxim transit terra cum onere ■ presupposes a transfer of the land, and when that actually takes place it forms the medium of a privity between the assignees. Unless, therefore, we make a presumption against the plain statement in the declaration, the title of this lot never ceased to be in the daughter Mary, from the time Cranston conveyed to her. Suppose the father and mother had entered into the covenants contained in the deed by a separate instrument, unaccompanied with any conveyance of the land, no one would pretend that an assignee should take the benefit of such a contract. Then, can the case be materially altered by annexing these covenants to a deed of bargain and sale, which, being a conveyance under the statute of uses, transfers only what the bargainor might rightfully convey ? For the declaration shows that rightfully he could convey nothing. If one man covenants that another shall quietly enjoy or obtain a conveyance for an estate which is owned by a third, this binds the covenantor and his executors or administrators to the covenantee, but cannot extend to the assignees of the latter. Nor can I conceive that the law is different where a man sells an estate and makes the same covenants, provided it appear upon the declaration that he had no right. In both cases the privity is wanting which forms the basis of reciprocal remedies to the parties.”

Webb v. Russell, 3 Term, 393, arose out of the following facts: William Stokes being possessed of a term having some eighty years to run, mortgaged it to Richmond Webb as security for the payment of a debt At this time, by the law of England, the entire legal estate of the mortgaged premises vested in the mortgagee. October 26, 1780, George Russell leased the premises for eleven years from Stokes and Webb, and agreed to pay to Stolces, the owner of the equity of redemption, or to his assigns, the annual rent of two hundred pounds and to keep the premises in repair. In 1781 Sarah Webb, the plaintiff, acquired the estate of the mortgagor and mortgagee and brought an action against Russell for the recovery of rent due and for damages for breaking the covenant to repair. The defendant demurred to the declaration. It was held, Lord Kenyon speaking for the court: “ I cannot conceive how this covenant made with Stokes can be said to run with the. land; for Stokes is stated in the declaration to have no interest whatever in the land, and yet both the implied covenant arising from the yielding and paying, and also the express covenants are entered into with Stokes. It is not sufficient that a covenant is concerning the land, but in order to make it run with the land there must be a privity of estate between the covenanting parties. Bgt here Stokes had no interest in the land of which a court of law could take notice; though he had an equity of redemption, an interest which "a court of equity would take notice of. These, therefore, were collateral covenants. And though a party may covenant with a stranger to pay a certain rent in consideration of a benefit to be derived under a third person, yet such a covenant cannot run with the land.” Subsequently Stokes sued Russell for the rent and for the breach of the covenant to repair. The facts above stated were pleaded as a defense; and thereupon the plaintiff demurred to the pleas in bar, and judgment was rendered for the plaintiff. Lord Kenyon, again delivering the opinion of the court, held that the covenants were covenants in gross, and that the plaintiff could maintain the action. Errors were assigned and the judgment was reviewed in the Exchequer Chamber, where it was affirmed, 1 H. Black., 563, Lord Loughborough, speaking for the court, said: “ The term in this case took effect out of the estate of Webb; the covenant with Stokes could not be incident to the estate, nor run with the land; it must be a covenant in gross, and consequently not assignable.”

In Keppel v. Bayley, 2 M. & K., 517, many of the previous cases relating to covenants running with the land were analyzed and reviewed by Lord Chancellor Brougham, and among them Webb v. Russell, which was approved, and it was again directly held that a covenant between a covenant or and a covenantee, between whom there was no privity in estate, does not run with the land. Pages 543, 546.

Cole v. Hughes, 54 N. Y., 444, arose out of the following facts: Voorhies and Dean being adjoining owners, Dean erected a party wall one-half on the land of each, under a contract, which was recorded, by which Voorhies covenanted that whenever he, or his heirs or assigns, used the wall, he or they would pay Dean or his assigns the value of the part so used. Voorhies’ lot passed by mesne conveyances to the defendant Hughes, who built on the lot and used the party wall. Dean assigned the contract to the plaintiff, but conveyed the lot to another. In an action brought by the assignee of the contract it was held: (1.) That the covenant to Dean did not run with his land, and that the right to recover on the covenant belonged to the plaintiff, the assignee of the covenant, and not to the grantee of the lot. (2.) That Voorhies’ covenant to pay for the value of the wall did not run with his lot, and that there being no privity of estate between Voorhies and Dean, only a privity by contract, that the covenant did not run with Voorhies’ lot. The learned judge said in conclusion : “I am of opinion, therefore, that neither the benefits nor the burdens run with the land.” The opinion does not proceed upon the theory that the nature of the covenant was such that it could not run with the land; but on the theory that there being no privity of estate between the covenantor and covenantee, only a privity by contract, that neither the benefits nor burdens of such covenants run with the land to which they relate. Mr. Washburn, in his learned treatise upon the law of real property, says, 2 Wash. R. P., *15 (5th ed.), 296: “ 16. It has also been attempted to maintain the doctrine, that although the burden of a covenant to pay rent may not be imposed upon land in favor of a stranger so as to run with it and bind an assignee of the land, a stranger may covenant with the land owner in such a manner as to attach the benefit of the covenant to the land, and have it run with it in favor of whoever may become the owner thereof. It is not pretended that this can be done except where the covenant is to do some act for the benefit of the estate upon the land itself. The doctrine above stated is advocated by the editor of the American edition of Smith’s Leading Cases, is favored by the English commissioners upon real property, and is assumed to' be the law in the cases cited below. To sustain it reference is also made to Pahenham’s case, commonly known as the Prior and Convent case,, and to Coke’s opinion.

“But it is believed that the point has never been determined in this way by a full court, though assumed by individual judges, and that, respectable as these opinions in its favor may be, the doctrine contended for is opposed to well settled principles as well as the highest authority. With a few exceptions, the uniform current of authorities, from the time of Webb v. Russell to the present day, requires a privity of estate to give one man a right to sue another upon a covenant where there is no privity of contract between them; and, consequently, that where one who makes a covenant with another in respect to land neither parts with nor receives any .title or interest in the land, at the same time with and as a part of making the covenant, it is, at best, a mere personal one, which neither binds his assignee, nor enures to the benefit of the assignee of the covenantee, so as to enable the latter to maintain an action in his own name for a breach thereof.”

Kent states the rule in this language: “ The distinction between the covenants that are in gross and covenants that run with the land (and which are covenants real, annexed to or connected with the estate, are beneficial to the owner' of it, and to him only) would seem to rest principally on this ground, that, to make a covenant run with the land, there must be a subsisting privity of estate between the covenanting parties.” 4 Kent’s Com., 473.

Lord St. Leonards discusses this question at considerable length, and reaches the conclusion that the covenant of a stranger to a title does not run with the land. 2 Sugd. on Vend., *716, 718, 719, 721 (7th Am. ed.), 168, 170, 171, 173, pp. 25, 26, 33-35, 38. See Platt on Cov., 461; Chitty on Cor. (12th ed., 51); 1 Taylor’s L. & T. (8th ed.), § 261.

In Hurd v. Curtis, 19 Pick., 459, the owners of four mills, which were supplied with water by the same dam, entered into an indenture by which they covenanted for themselves, their heirs, administrators and assigns, to and with each other, their heirs, administrators and assigns, that they would use wheels of a certain construction and limited power in their respective mills. The plaintiff was a party to the indenture, and owned an undivided half of one of the mills, and subsequently he acquired the other half. Later the defendants purchased of two of the covenantors their mills, and thereafter used wheels of a different construction and of greater power than those specified in the indenture. In an action brought to recover damages for this breach of the covenant, it was held that there being no privity of contract between the plaintiff and defendants, that the defendants were not liable unless there was a privity of estate between them. In discussing this question it was said: “To make a defendant liable to an action of covenant there must be a privity between him and the plaintiff. Bally v. Wells, 3 Wils., 29. As there is no privity of contract between the plaintiff and the defendants, it follows that the defendants are not liable in this action, unless there is a privity of estate between them. Where such a privity exists between the covenantor and the covenantee, and the covenantor assigns his estate, the privity thereby created between the assignee and the other contracting party renders the former liable on all such covenants as regulate the mode of occupying the estate, and the like covenants concerning the same. 'And so if the covenantee assigns his estate, his assignee will have the benefit of similar covenants. These covenants are annexed to the land and run with it. But if there is no privity of estate between the contracting parties, the assignee will not be bound by, nor have the benefit of any covenants between the contracting parties, although they may relate to the land he takes by assignment or purchase from one of the parties to the contract. In such a case the covenants are personal and are collateral to the land!

Opposed to these authorities are the remarks of the learned American editor of the eighth edition of Smith’s Leading Cases, page 192; Dickinson v. Hoomes' Administrator, 8 Grat., 406. Judge Hare, in his learned note to Spencer's Case, in the edition of Smith’s Leading Cases last referred to, said: It appears, therefore, to be an exploded idea that privity of estate or tenure is necessary between the covenanting parties in order that covenants may ru-n with the land.”

Dickinson v. Hoomes' Administrator, 8 Grat, 353, arose out of the following facts: A father devised to every one of his five children a piece of land, subject to the limitation that if any one died without issue, his piece should be divided equally between the survivors or their representatives according to the principles of the law of descents. The five children survived their father, and entered on their several pieces of land. One of them, John, conveyed his land, and the other four children joined in the deed, which contained a covenant of warranty. This land passed by several mesne conveyances to Dickinson, the plaintiff. Richard, one of the children and covenantors, died, in the lifetime of John, leaving several children, and afterwards John died without issue, and thereupon Richard’s children evicted Dickinson, claiming, not by descent from their father,. but under the devise of their grandfather. An action was brought on the covenant of Richard against his representatives; and it was held that when Richard joined in the deed, .“he had, in fact, an interest in the subject; an interest which depended on the double contingency of John’s dying without issue living at his death, and of Richard’s surviving him.” Page 402. In considering the question whether it is necessary that some estate should pass from a grantor to a grantee, to carry a grantor’s covenant of warranty to subsequent grantees, the learned judge discussed Prior’s and Spencer’s cases, and held, in accordance with the rule generally adopted in this country, that it was not necessary that an estate should pass But in discussing this question the court indulged in the following reflections, which were quite unnecessary for the determination of the case, which had been well decided on the first ground stated: “ I can see no reason why these covenants, if in "their nature they are such as can run with the land, should not run with the land as well as when they are made by a stranger as when they are made by the donor; but I can see many reasons for the contrary. A person may be willing to purchase land, notwithstanding a flaw in the title, if he can fortify it by proper covenants. The owner may not be sufficiently responsible, but may be able to procure the assistance of responsible friends, or creditors, or others may have sufficient interest to join him in the covenants. But what would these covenants be worth if they could not be enforced by an assignee of the land ? A covenant of seizin, or of right to convey, would never be given in such a case, because it would be known to the parties that as soon as made it would be ipso facto broken. A covenant of warranty, or for quiet enjoyment, would be the most appropriate covenant for such a case; and yet, to make that covenant effectual, it would be necessary, according to . the doctrine contended for, that the covenantee should always retain the property. I am, therefore, of opinion that the covenant of Eichard Hoomes runs with the land, even though he should be considered as a stranger to the land.” Page 404.

In Lydick v. The Baltimore & Ohio Railroad Company, 17 West Va., 427, the court refers to the conflicting views on the question as to whether the covenant of a stranger runs with the land, and says: “ It is not necessary in this case to determine which of these views is sound. For, in the case before us, the requisite privity of estate exists according to the views of Washburn, who holds such privity to be necessary.” It will be observed that in this case there had been no grant of any kind to the railroad, simply an oral contract for a right of way; which, had it been granted, would have left the reversion in the owner, and would have created a privity of estate according to the strict rule prevailing when land was held by feudal tenure.

The views of Judge Hare and of the court in Dickinson v. Hoomes have been the occasion of some discussion. A writer in the American Law Eegister (N. S.), vol. 2, p. 201, says: “ The following topic must be kept distinct from one shortly to be considered, namely, what amount of estate must pass to support the covenants when the covenantee’s only title is derived from the covenantor. It is conceded that, in order for covenants in general to run with the land,'there must exist a privity of estate between the parties. 3 Wilson, 29 ; 3 T. E., 402 ; 2 East, 380; 17 Wend., 136. But eminent legal writers have thought this not to be requisite in covenants for title; nor, indeed, in any covenants intended to benefit the estate of the covenantee. Hare’s Note to Spencer’s case; Rawle on Cov., 335; 2 Lomax’s Dig., 260; 3d Real Prop.; Rep. of Eng. Commissioners. This opinion has been founded almost exclusively upon the authority of an ancient case, known as the Prior’s case, T. B., 42 Ed. III, 3, cited by Lord Coke. In controverting this view, Sir Edward Sugden, now Lord St. Leonards, Sugd. on Vend, and Pur., 472, has subjected the Prior’s case to a most searching criticism, which results in its complete overthrow as authority on this question, showing that the portions of it particularly relied on were not judicial resolutions, but an addition'by the reporter; that the case does not contain the doctrine usually extracted from it, and that it has received no confirmation, but the contrary, from subsequent adjudications.

It may be safely laid down that, if the doctrine that the covenants for title will run with the land, even when entered into by a stranger to the land, has no better foundation than the authority of this case, it cannot be sustained; and it would seem to be the better opinion that, in order for a covenantor’s covenants to run with the land, he must also be a grantor of the land which they affect. No modern case decides that a stranger’s covenants may run with the land; but in a dictum of Moncure, J., in the recent case of Dickinson v. Hoomes, Administrator, 8 Grattan, 406, this doctrine is broadly enunciated. The dictum is based, however, on the Prior’s case, and authors who have followed it. It is there said that a purchaser of land who suspects an infirmity of title, and doubts the responsibility of the vendor, may fortify the title by covenants of the grantor’s friends, or other interested parties, and these covenants will run with the land to future assignees. This notion is possibly correct, and if so, highly important, but is not, we apprehend, in accordance with the common understanding among the members of the legal profession. 7 Jarman’s Bythewood, 572. The introduction of such covenants into conveyances would be a novelty, and probably of doubtful expediency. At least it would not be prudent to rely on such covenants until further adjudications have more fully determined their value.”

In the American Law Eeview, vol. 20, 404, Judge Hare’s.note is discussed, and the writer, in conclusion, says: “But the authority of Pakenham’s case seems to be overthrown by the investigations of Sugden and Washburn, who produce unquestionable proof that the case was not decided by the court as reported by Lord Coke, but that Lord Coke’s report was the expression of a mere dictum by Einchden. This case, then, being authority no longer, the foundation is destroyed of the proposition that even strangers, covenanting to annex a benefit to the land, may be 'held liable in the suit by the assignees of the tenant with whom the covenant was made. The doctrine, therefore, advanced by the learned annotator of Spencer's case, that even strangers may be bound by covenants benefiting the land, is unsound.”

The editor of the 9th American edition of Smith’s Leading Cases, vol. 1, 211, takes a different view of this question from the one taken in the earlier editions. He says: “ It seems that there must be between covenantor and covenantee the relation of grantor and grantee, which is all that there is between the grantee and his assignee. It is not thought that a covenant of warranty made by a stranger to the land would run with it, and perhaps the relation necessary to exist is that which would have constituted privity of estate at common law before the statute of Quia Emptores, although the rent or services reserved which were, perhaps, an incicent of the old privity, are not now usual. On the authority of Pakenham’s case, sometimes called the Prior’s case, stated in the text, the English editor lays it down broadly that the covenantor may be a stranger to the land, but that case stands by itself, and it may well be doubted if, at the present day, a covenant to warrant the title, or to keep buildings in repair (for instance), made by a stranger to the land, would be held to run. It is possible that some explanation of that case might be found in the religious nature of the service and the connection of the convent and the manor. If it should be followed to the extent suggested by the English editor, it would be a startling exception to the otherwise universal rule that there must be some land or interest in land pass in connection with the covenant”

Covenants annexed to estates in privity, or covenants running' with the land, are incidents to the estate. Coke, when at the bar, successfully took the position, Noke v. Awder, Cro. Eliz., 373, that if A. had no estate in land and assumed to convey it with covenants for title to B., who assumed to convey it with like covenants to C., that C. being evicted by a title paramount to A.’s pretended title, could not recover against A. on his covenant, because he having no estate, title or interest in the land, nothing passed to B. to which the covenants could attach as incidents. This doctrine led to the logical conclusion 'that when a grantee lost his land and needed the aid óf his covenants for title, th.at they became worthless. Much that has been written about the liability of strangers to title being liable on their covenants of warranty has been in refutation of the doctrine of the case last cited. It is hardly necessary to say that this doctrine has long been exploded, and it is but remotely, if at all, connected with the question which lies at the root of this case.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Bradley, J. (dissenting,)

The question whether the defendant’s covenant ran with the land, or whether he was capable of making a covenant having that effect, was not specifically raised by any exception taken at the trial, or to any finding or refusal to find of the trial court. The court found that Almira S. Coe and the defendant, her husband, made a deed of the lands described in the complaint, purporting to convey them in fee simple to Raney Fisher, and “that said deed contained covenants of seizin, rightto convey, against incumbrances, quiet enjoyment, further assurances and warranty, which covenants were made by the defendant and Almira S. Coe, jointly.” Ro exception was taken to this finding. As conclusion of law the court found that the covenants were broken, and that the plaintiffs were entitled to recover against the defendant the amount there mentioned. To this conelusion the defendant excepted. And he requested the court to find that “ Almira S. Coe and the defendant made, executed and delivered to Nancy Fisher a deed conveying the premises described in the complaint, which deed contained covenants of warranty, seizin and quiet enjoyment.” The court so found. This was the only request to find having relation to the character of the defendant’s covenant. And the defendant’s request that the court find as conclusion of law that the complaint be dismissed was reiused, and exception taken. Those were the only exceptions taken by the defendant. It is true the court found that Roberts conveyed the premises to Almira S. Coe, and that she then entered into the occupancy and continued in it until the conveyance to Nancy Fisher, who then went into possession. And it appeared as evidence that the deed made by the defendant and his wife contained the covenant made by them, that the wife was lawfully .seized of a good, absolute and indefeasible estate of inheritance in fee simple of the premises, also the usual covenants of quiet enjoyment, for further assurances-and warranty. But the court did not specifically find, nor was it requested to find, that the defend.ant had no interest in the premises at the time of the conveyance, nor was any motion to dismiss the complaint made at the trial on that or any ground. Facts not found, and which the court was not requested to find, are not entitled to consideration in this court for the purpose of reversing the judgment. Burnap v. National Bank, 96 N. Y., 125.

The possession of the premises was delivered to and taken by the grantee pursuant to the deed of conveyance in question. This was sufficient estate to carry the covenants of warranty as an incident to the land to the assignee of the grantee, and on his behalf to support an action upon such covenant on being eviqted by title paramount. Beddoe’s Ex'r v. Wadsworth, 21 Wend., 120; Fowler v. Poling, 6 Barb., 168; Slater v. Rawson, 6 Met., 439; Wead v. Larkin, 54 Ill., 489; 5 Am., 149.

But treating as found the fact that the covenant of seizin in the «deed was that it was in the defendant’s wife, the question arises whether the defendant’s covenant of quiet enjoyment, etc., ran with the land. He was a grantor named in the deed, and the -covenants were made by him and his wife jointly; and the grantee took by the conveyance an estate in the land. One of the recognized differences between a covenant which is and which is not available to the assigns of a grantee in a deed of conveyance is that the former relates to the estate, is made for its benefit and tends to enhance its value, while the other is collateral to it and does not pass beyond the covenantee. Shep. Touch., 161, 176. The former, in case of grant in fee, does not rest upon privity of estate with the covenantor, but privity, so far as essential for the transmission of the covenant from the covenantee, is with the latter. Norcross v. James, 140 Mass., 188, 189; Norman v. Wells, 17 Wend., 136, 150, 151; Pollock’s Law of Contracts, 5th ed., 226; 2 Chitty on Contracts, 11th Am. ed., 1383,1388; Holmes on Common Law, 404. And upon the proposition thatu covenant intended to benefit the land made to the owner by a stranger to the title may become attached to and go with the land and be available to a subsequent owner of it, the PaJcenham case, Y. B., 42 Edw. III, 3, has frequently been referred to and cited by elementary and judicial writers. There the prior, with the consent of his convent, for himself and successors, by deed covenanted with the owner that he and his convent would sing, etc., in such owner’s chapel on the manor. It was held that this covenant was annexed to and passed with the land of which the chapel was a part. The doctrine of that case has been questioned by Sugden and Washburn, but the view of the former, as represented by his later editions, is that the doctrine of privity of estate is not applicable to covenants entered into by a vendor. Sugd. on Vend. (14th ed), chap. 15, § 1, pi. 14 et seg. And it may be observed that the Prior's case has quite generally been cited, and its principle stated with apparent approval in England and in this country. Shep. Touch. 176; Coke Litt. 385a: Bacon Abr. Covenant E; Spencer's Case, 5 Coke, 16; Smith’s Leading Cases, 22, 26; Vyvyan v. Arthur, 1 Barn. & C., 410, 415; Norman v. Wells, 17 Wend., 136, 151; Allen v. Culver, 3 Denio, 284, 289, 301; Dickinson v. Hoomes, 8 Gratt., 353, 403; Van Rensselaer v. Read, 26 N. Y., 574; Norcross v. James, 140 Mass., 190; Holmes' Com. Law, 395; Hamilton on Cov., 96.

In Keppel v. Bayley, 2 Myl. & K., 517, the doctrine of the-Prior and Convent case had no necessary application to the question presented and determined. It was there held that a covenant-made by the proprietors of an iron-works property to transport material for their works from a certain mine over an adjacent railroad was a personal covenant merely, ■ and did not pass by the sale of the iron works so as to charge the vendee with the obligation to perform. There was no relation of lessor and lessee between the parties, nor was there any connection between their estates. And to permit the covenant to run with the land and the burden of it to fall upon the vendee of the covenantor, privity of estate, which did not exist between them, was essential.

And such was the case of Hurd v. Curtis, 19 Pick, 459, where Mr. Justice Wilde, in delivering the opinion of the court, said: “ There is no exception to the rule that no covenant will run with the land so as to bind the assignee to perform it unless there were a privity of estate between the covenantor and covenantee.” Such was also the case of Cole v. Hughes, 54 N. Y., 444.. There is no-opportunity to doubt the essentiality of privity of estate between the original parties to a covenant to carry the burden of covenantor to his assignee. That was the principle upon which Bally v. Wells, 3 Wilson, 25, was decided, and where Spencer's case was-thoroughly considered and its doctrine applied. Hor can the soundness of the principle upon which Webb v. Russell, 3 Durn. & E., 393, was determined, be questioned.

There the action was upon the covenant in the lease against the assignee of the lessee to recover rent and for failure to repair. The demurrer to the declaration was sustained because it appeared by it that .the reversion was not in the plaintiff. The privity, of estate requisite to support an action against the assignee of the lessee is only between the latter and the owner of the reversion. And the covenant in that lease was effectual to support the later action by the party having the reversion in Stokes v. Russell, id., 678. Dolph v. White, 12 N. Y., 296. Those cases do not necessarily have any application to the question in the present one. They had relation to covenants as burdens which to run with the land must have the support of privity of estate between the covenanting parties and generally rest upon the relation of landlord and tenant. There may occasionally have been some confusion given by dicta indicating that contracts which operate to create easements run with the land as burdens. This is not strictly correct. The contracts so operating are executed ones and create vested rights. A grant is not a covenant; and a covenant that runs with land is executory. The rule that covenants run with the land as a burden was founded upon or deduced from the feudal law where the relation of landlord and tenant existed. That rule is not applicable to* conveyances in fee of the entire estate of the grantor. The covenants of warranty are purely a matter of contract between the parties to the deed of conveyance containing them, and being beneficial in their relation to the estate, which the deed purports to convey, they become annexed to it when it passes from the covenantee to his assignee and through the medium of conveyance to the latter become available to him in case of breach, while he retains the relation of grantee to the land. Bingham Beal Estate, 429. This is not founded upon privity of estate with the covenantor, and it rests upon privity of contract for the reason only that the conveyance by the covenantee operates as an assignment by him of the covenants of warranty taken by the latter from his covenantor. But the doctrine that such covenants pass with the estate from the covenantee is an exception to the general rule requiring privity of estate between covenantor and covenantee and evidently was adopted upon commercial considerations deemed advantageous to the transmission of estates in fee by giving the grantee the benefit of covenants of quiet enjoyment contained in any of the conveyances in the line through which the grant to him may be traced. Bingham Actions and Defenses, 401, 405-406.

This character of such a covenant is recognized by the learned justice in Hurd v. Curtis. He says: “ Covenants of title may be -considered as an exception to the general rule, and the reason for the exception is very strong, for nothing can be more manifestly just than the party who loses his land by a defect of title should have the benefit of the covenants, which were intended to secure an indemnity for the loss. Such a covenant is dependent on the grant, is annexed to it, as part and parcel of the contract, and runs with the land in favor of the assigns of the grantee or covenantee.” Then he proceeds to state, substantially, as before quoted, that to impose a burden upon the assignee the rule that there must be privity of estate between covenantor and covenantee is without exception. And the same distiction was observed by Judge Earl in Cole v. Hughes, in his statement there made, that there is a wide difference between the transfer of the burden of a covenant running with the land and of the benefit of the covenant. The benefit will pass with the land to which it is incident, but the burden or liability will be confined to the original covenantor, unless the relation of privity of estate or tenure exists or-is created between the covenantor and covenantee at the time the covenant is made.” This is undoubtedly the rule upon the subject. And since the statute of quia emptores, where it was applicable, and in this state, after the act of 1787, chap. 36; 1 R. L., 70, concerning tenures, of which the provisions of §§ 3 and 4 of 2 Revised.Statutes, 718, are a substitute, a conveyance in fee of the-entire estate of the grantor has not permitted a covenant between him and his grantee to run with the land as a burden to charge the assigns of the latter. The fact that covenants of warranty of the grantor in a deed of such a conveyance pass to the assigns of the grantee is an exception to the general rule requiring privity of estate with the covenantor. And this is because they are treated as attached to the land as a benefit and pass with it as an incident.

The Priors case has repeatedly received such judicial sanction in this state as to require some reason, which does not now occur to me, why, within its doctrine, a covenant, independent of the grant, made by a stranger to the title, to the owner of the lands and intended for the benefit of his estate, and beneficial to it, may not as such become attached to and pass with it to a subsequent owner. This would not embrace all covenants beneficial to the estate, but only such as are solely for its benefit, and thus for the benefit of the owner alone in his relation to the lands. I do not pursue the consideration of that case, or seek by any reason to sustain or qualify it, because its authority is not deemed essential to the support of the view taken that the defendant’s covenant in the present case passed with the estate in the land to the assigns of the covenantee. He was not a stranger to the terms of the grant, but he was one of the parties named as grantors in the deed by which the conveyance of the estate granted was made, and his covenants of warranty and further assurance were made jointly with his wife. His relation, so far as related to those covenants to the grantee, was no different in any respect or for any purpose than those of the wife, and they went with the estate to the assigns of the grantee. King v. Jones, 5 Taunton, 418; Dickinson v. Hoomes, 8 Gratt., 353; Colby, v. Osgood, 29 Barb., 339. This, as before remarked, is not dependent npon privity of estate, for none exists between the covenantor and the covenantee in a conveyance in fee in the legal sense of the term, nor between the former and the assigns of the latter, but the benefit of the covenants of warranty,, taken by the grantee in the instrument by which the grant is, made, pass to his assigns as an incident to the estate. And in Norman v. Wells, 17 Wend., 149, 150, Mr. Justice Cowen gives the reason why such covenants are available to an assignee, in the remark : “ Why do charters and covenants for assurance and warranty and the like follow the land ? Because they make part of its value.” 2 Wash. R. P., 4th Ed., 286, 287. And the learned justice in the case last cited approvingly refers to the fact that the court in Vyvyan v. Arthur proceeded upon the Primes case,, p. 151, and in commenting upon Keppel v. Bayley, lie does not adopt the equivocal dictum of the lord chancellor there in respect to that case. Pages, 153-155. It may be observed that what is usually stated in the books on the subject of privity of estate has reference to the general rule applicable to the relation arising out of the leases, between landlord and tenant, or one of them and the assigns of the other, or between the assigns of both of them.

The right of action upon covenants in leases is dependent upon privity of estate existing between the owner of the reversion and the lessee or his assigns ; and the covenants of the lessee are for the benefit of the reversion, and go with it. They pass to his assignee as a burden. Notwithstanding that situation, it was held in Allen v. Quiver, 3 Denio, 284, that the grantee of the lessor of the reversion could maintain an action against the person who, by a separate instrument made at the same time as the lease, had become surety of the lessee for the payment of the rent. This could rest on the ground only that the covenant of the surety was, in practical effect, inseparable in point of liability with that of the lessee. There privity of estate was not only requisite, but the covenant of the surety was not united in the same instrument with that of the lessee, and by which the demise to him was made. That case, therefore, goes further than is necessary for the support of the liability of the defendant upon his covenants to the assignee of the covenantee. In' the view taken of the case at bar, that of Nesbit v. Montgomery’s Executors, 1 Taylor, N. C., 82, has-no essential bearing upon the question here presented. There the parties who made the deed poll neither had, or pretended to have, any estate in the land, but it appeared by it that they received the consideration in behalf of their daughter, who had the title, and on her behalf bargained and sold the premises, and covenanted that when she arrived at age she would execute further assurance, etc., and if she nullified the sale they would refund to the purchaser double the amount of the purchase money paid by him, and pay him the damages sustained. She afterwards married and her husband asserted the title of his wife, and entered into possession of the portion of the premises which had been conveyed by such purchaser to another, who brought action upon the covenant against the executors of the covenantor. It was finally held that the action could not be supported, for the reason that it appeared upon the face of the declaration that the defendant’s testator neither had, or pretended to have, any title, and in support of the determination was cited Noke v. Awder, Croke’s Eliz., 373, upon which no comment is needed.

In the Nesbit case it appeared by the deed that no estate could pass from the grantors to the grantee which was essential to carry the covenant and without which there was nothing to which it would be attached as an incident or to furnish a medium of transmission of the covenant to the assignee. In the present case there was an estate in the land conveyed and with it the covenants of warranty contained in the deed passed to the assignees of the covenantee. Those of the defendant made jointly with the wife, no less than hers, were beneficial to the grant and to the estate granted, became an incident to the land and passed with the estate from the covenantee.

The further question, and the one mainly considered in the court below, is whether the defendant’s covenant was available to the plaintiffs. They became mortgagees of Mancy Fisher while she occupied the premises under the grant from the defendant and his wife. Mrs. Fisher afterwards conveyed to Fuller and he to Clara B. Leavitt, all of whom respectively entered into possession under the several conveyances. While the action of ejectment against Leavitt which resulted in her eviction by title paramount was pending, the plaintiffs commenced their action to foreclose the mortgage made by Fisher, in which decree was obtained pursuant to which the land was sold and purchased by the plaintiffs. They never acquired the possession, and, therefore, were not evicted, but before they obtained the deed of the sale upon the decree, the eviction of Mrs. Leavitt had been accomplished. For those reasons it is insisted on the part of the defendant that the plaintiffs took no right' of action upon the covenant of warranty against the covenantor. This would be so if their rights as purchasers had relation in time to that when the sheriff’s deed was made to them, because then there had been a breach of the covenant and it had become a mere chose in action and a conveyance by Leavitt then made would have been ineffectual to afford any remedy upon it by her grantee. But that was not the situation when the mortgage was made. The foreclosure and sale in practical effect eliminated the defeasance from the mortgage. The plaintiffs as purchasers took the estate which the mortgagor had at the time the mortgage was given and to that time and the situation in that respect as it then was their rights derived from the sale had relation. Rector, etc. of Christ Church v. Mack, 93 N. Y., 488; Lewis v. Cook, 13 Iredell Law, 193; White v. Whitney, 3 Metc., 81.

Mrs. Leavitt was a party defendant in the foreclosure action, and whatever estate or right, by way of equity of redemption, she had was cut off and barred and taken by the plaintiffs, who, as purchasers, became assignees of' the interest she had acquired by her purchase of the premises. Howell v. Leavitt, 90 N. Y., 238. But for the mortgage and its foreclosure her right as incident to the estate conveyed to her was, upon eviction, to seek indemnity by action upon any covenant running with the land to her. And this right of Mrs. Leavitt, annexed to the land as incident to the estate she had purchased, was, as such, taken by the purchasers upon the mortgage foreclosure, and they alone could maintain an action upon the covenant. For the reasons already given, this did not embrace the covenants of her immediate grantor. The consideration of, the mortgage was $15,000. That, and not the amount for which the judicial sale was made, was properly made basis of damages, and recovery by the plaintiffs. Greenvault v. Davis, 4 Hill., 643.

A different question in this respect may have been presented if a person other than the mortgagees had purchased the property on the foreclosure sale.

The court found that to be the actual amount loaned, and the payment of which the mortgage was made to secure was that sum.

The judgment should be affirmed.

Judgment reversed and a new trial granted, with costs to abide event.

All concur, except Bradley, Haight and Brown, JJ., dissenting.

       Reversing 8 N. Y. State Rep., 434.


author: Follett, Ch. J. Bradley and Brown, JJ. (dissenting.)

text:
    Thomas W. Pearsall, Resp’t, v. The Western Union Tel. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    1. Negligence — Telegraph company — Liability of, for mistakes in message—Evidence.
    Plaintiff, a member of the firm of T. W. Pearsall & Co., on the 31st July wrote on a sheet of blank paper the following message and delivered it to one of defendant’s operators at Great Neck, L. I. “ Great Neck, L. I., July 31st. T. W. Pearsall &• Co., Mills Building, New York city. Buy one thousand Western Union Telegraph. T. W. Pearsall.” The operator who received and transmitted it from Great Neck addressed it to T. W. Pearsall, Mills Building, N. Y. city, and it was left unopened until plaintiff returned the next day, and plaintiff brought action to recover damages, and proved" the above facts, held, that the court correctly-instructed the jury that the evidence made out aprima faeie case of negligence against the defendant.
    2. Same—Regulations on blank.
    While a telegraph company is not, unless it so expressly contracts, held, to warrant or insure the accurate transmission or prompt delivery of messages, it cannot by notice limit its liability for negligence, and the printed blank containing such notice was properly withheld by the court from the jury. (Bradley and Brown, JJ., dissenting.)
    3. Same.
    A shareholder in a corporation is not chargeable with constructive notice of resolutions adopted by the hoard of directors, or by provisions in the by-laws regulating the mode in which its business shall be transacted with, its customers.
    4. Same—Measure of damages.
    The measure of damages in such a case is the difference between the market value of the shares at the time when the dispatch should have been delivered and the sum paid for them in the market on the receipt of the message.
    Appeal from a judgment of the general term of the supreme court of the first judicial department, which affirmed a judgment, entered on a verdict in favor of the plaintiff for $1,757.86 damages.
    In July, 1884, the plaintiff was a member of the firm of T. W. Pearsall & Co., bankers and brokers, engaged in business at the Mills Building, Ho. 17 Broad street, in the city of New York. At about 8 o’clock in the forenoon of July 31, 1884, the plaintiff wrote on a sheet of blank paper and delivered to the telegraph operator at the station of the Long Island Railroad at Great Heck, the following telegram:

      “ Great Neck, L. 1, July 31st.
    “ T W. Pearsall & Co., Mills Building, New York Oily:

    “Buy one thousand Western Union Telegraph.
    “T. W. Pearsall.”
    The message was not prepaid, but it was delivered at the office of T. W. Pearsall & Co. before ten o'clock in the forenoon of the same day, where the charge of twenty-five cents for its transmission was paid. The operator who received the message and transmitted it from Great Neck addressed it to “ T. W. Pearsall, Mills Building, New York City,” and it was so received by the receiving operator in New York, so written out on defendant’s blank form No. 1, sealed in an envelope and addressed, “ T. W. Pearsall, Mills Building, New York City.” The following is a copy of the message as transmitted from Great Neck and as delivered:
    “ Form No. 1. The Western Union Telegraph Company.
    “ This company. transmits and delivers messages only on conditions limiting its liability, which have been assented to by the sender of the following message. Errors can be guarded against only by repeating a message back to the sending station for comparison and the company will not hold itself liable for errors or delays in transmission or delivery of unrepeated. messages beyond the amount of tolls paid thereon, nor in any case where the claim is not presented in .writing within sixty days after sending the message. This is an unrepeated message, and is delivered, by request •of the sender under the conditions named above.
    Thomas T. Eckert, Manager.

    Norvin Green, President.

    Received at the Western Union Building, 195 Broadway, New York, July 31,1884.
    Dated Great Neck Depot, L. 1, 31.
    ■“ To T. W. Pearsall, Mills Buildings, N. Y.

    “ Buy one thousand Western Union Telegraph.
    “ T. W. Pearsall.”
    No person connected with the office of T. W. Pearsall & Co. had authority to open telegrams addressed to the plaintiff individually, and this one remained unopened until about 10 o’clock A. M. of August 1st, when the plaintiff reached his office, opened and read the message. The result was that the shares ordered were not purchased July 31st, and on the morning of August 1st they had risen in the market so that they sold for $1700 more than they did on the morning of the day before, and the plaintiff then actually purchased that number of shares and paid the market rate.
    This action was brought to recover the sum of $1,700. The defendant by its amended answer (5th subd.) admits that the message was delivered at its office, at Great Neck, L. I., to a son of its agent, and by the letter of its general manager admits that the error in its transmission was that of the operator at Great Neck, but it alleges that at this time, and for a long time previously, the defendant was using a blank upon which messages were usually written which contained the following printed matter:
    “ Form, No. 2.
    “ The Western Union Telegraph Co.
    “ All messages taken by this company are subject to the following terms:
    “ To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this one-half the regular rate is charged in addition. It is agreed between the sender' of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or. for, non-delivery, of any repeated message beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this' company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company then necessary to reach its destination.
    “ Correctness in the transmission of messages to any point on the lines of this company can be insured by contract in writing, stating agreed amount of risk, and payment of premium thereon at the following rates, in addition to the usual charge for repeated messages, viz.: One per cent for any distance not exceeding 1,000 miles, and two per cent 'for any greater distance. No employee of the company is authorized to vary the foregoing.
    “ No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices, and if a message is sent to such office by one of the company’s messengers, he acts for that purpose as the agent of the sender.
    _ “ Messages will be delivered free within the established free delivery limits of the terminal office; for delivery at a greater distance a special charge will be made to cover the cost of such delivery.
    “ The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message.
    “ Thos. T. Eckert, General Manager.

    “Norvin Green, President."

    That plaintiff had notice of those terms and conditions.
    Upon the trial the plaintiff testified: I am familiar with the general appearance of the blanks, with the printed heading, which the Western Union Telegraph Company furnishes to persons whose business it desires, and have been so for a good many years. I have frequently sent messages written on such blanks. Bundles of such papers are lying on the table in my office, ready of access to any one who desires to send a message by telegraph. There is quite a parcel of them there, always in full view. I have been in the habit of taking blanks from that pile and writing messages on them and sending them myself, and I had been previous to the time this message was written, ón the 31st of July, 1884. * * *•
    “ Q. Did you ever, in point of fact, before sending this message, read any of this printed matter that is at the head of the blanks in your office ? A. No, sir.
    “ Q. Had you in any way knowledge of the terms of those conditions? A. No, sir.”
    On the trial the defendant offered in evidence blank form No. 2, and insisted that the plaintiff was bound by its terms, but the court rejected the offer, and ruled that the terms were not binding on the plaintiff. But two questions were submitted to the jury: (1.) Whether the defendant was negligent in transmitting the message. (2.) The amount of damages. The jury returned a verdict for $1,757.86, upon which a judgment was rendered, which was affirmed by the general term, from which the defendant appeals to this court.

      Thomas G. Shearman, for resp’t; Burton N. Harrison, for app’lt.

       Affirming 9 N. Y. State Rep., 132.

   Follett, Ch. J.

This action was tried and a had at circuit, which was sustained at the general term, on the theory that the contract between the parties was the one implied by law when a telegraph company receives, without conditions, a message for transmission. Among other obligations implied in such a case, is the duty to accurately transmit and deliver to the addressee the message received, which in this case the defendant failed to do, as it admits, by reason of the mistake of the operator who received and undertook to send forward the communication. Under such a contract a telegraph company does not insure the accurate transmission and delivery of a dispatch, but undertakes to exercise due diligence to do so.

The question has several times arisen whether, in actions for damages against such corporation for failing to accurately or promptly deliver communications, a plaintiff makes out a prima facie case by proving the contract and its breach, or whether the plaintiff must go further and give evidence of some negligent act of omission or commission on the part of the corporation or of its agents.

Rittenhouse v. Independent Line of Tel., 1 Daly, 474; 44 N. Y., 263, was brought to recover damages for failing to correctly transmit a message, and it was held that a prima facie case was made out by showing that the communication delivered was not a copy of the one sent

In Baldwin v. The U. S. Tel. Co., 45 N. Y, 744, a dispatch was received for “ Erie Darling,” but as transmitted it was addressed to “ E. R Cooley,” and was not delivered to Darling for several days, and it was held that by proof of these facts a prima facie case was established.

In Breese v. The U. S. Tel. Co., 48 N. Y., 132, it was proved, that a message to purchase $700 in gold was changed to one to buy $7,000 in gold, and it was said, though not necessary for the decision of the case, that it was not prima facie proof of negligence.

The rule laid down in the first two cases has been followed by the courts of other states and is approved by the text writers. Whart. on ITeg., § 756; Gray Tel., §§ 26, 53, 54, 77; Abb. Tr. Ev., chap. 32; 2 Greenl. Ev., § 222a note; 2 Shear. & Red. Ueg., § 542 ; 2 Thomp. IT eg., 837 ; 3 Suth. Dam., 295.

The court correctly instructed the jury that the evidence made out a prima facie case of negligence against the defendant.

In the cases holding that telegraph companies are only liable when grossly negligent there were contracts exempting them from all liability, except to refund the tolls received, for negligently sending or delivering the communication. ' Without considering whether there is any legal distinction to be drawn between gross and ordinary negligence in such cases, it is sufficient to" say that these cases are not germain to the question in the case at bar.

At the time this message was received, the plaintiff was one of defendant’s shareholders, and it was offered to be proved in defense of the action that the board of directors had adopted a resolution that it would not be liable for mistakes or delays in the transmission or delivery of unrepeated messages, and would not be liable for damages arising from delays in the transmission or delivery of a repeated message beyond an amount specified; and it was insisted that a shareholder was chargeable with notice of this resolution. The regulations were excluded and the defendant excepted. In this there was no error, for a shareholder in a corporation is not chargeable with constructive notice of resolutions adopted by the board of directors, or by provisions in the bylaws regulating the mode in which its business shall be transacted with its customers, and the plaintiff’s rights arising out of defendant’s contract to transmit the message were in no wise limited by its regulations or by-laws not brought to the plaintiff’s knowledge. Hill v. Manchester & Salford Waterworks Co., 5 B. & Adol., 866; Rice v. Peninsular Club, 52 Mich., 87; Mor. Corp., 88 500, 500a.

The court instructed the jury that the plaintiff was entitled to recover the difference between the market value of the stock on the morning of July 31st, and the sum which he paid for it on the morning of the following day. It distinctly appeared on the face of the dispatch that it was an order to buy shares; and in such cases, the liability of the corporation not being limited by a special contract, the measure of damages is the difference between the market value of the shares at the time when the dispatch should have been delivered and the sum paid for them in the market on the receipt of the message. Rittenhouse v. Tel. Co., 44 N. Y., 263; Leonard v. Tel. Co., 41 id., 544; Squire v. W. U. Tel. Co., 98 Mass., 232; Western Union Tel. Co. v. Hall, 124 U. S., 444; U. S. Tel. Co. v. Wenger, 55 Pa. St., 261; 3 Suth. Dam., 307.

It is insisted in behalf of the defendant that the court erred in excluding from the consideration of the jury the conditions printed on Form 2. It is settled that a telegraph company incorporated under the general statutes of this state may, by contract, limit its liability for mistakes or delays in the transmission or delivery or for the non-delivery of messages caused by the negligence of its servants, if the negligence be not gross, to the amount received for sending the dispatch. Breese v. U. S. Tel. Co., 48 N. Y., 132; Kiley v. W. U. Tel. Co., 109 id., 236; 14 N. Y. State Rep., 816. But it has never been decided by the court of last resort that such a company can, by notice, limit its liability for such mistakes or delays.

Breese v. U. S. Tel. Co., 45 Barb., 274; 48 N. Y., 132, arose out of an erroneous transmission of a message written on a blank containing printed conditions, and it was held that a party by writing his dispatch on the blank assented to the printed terms and conditions. In discussing the question it was said; “ They (telegraph companies) can thus limit their liability for mistake not occasioned by gross negligence or wilful misconduct and this they can do by notice brought home to the sender of the message or by special contract entered into with him.” We think this remark cannot be. regarded as an adjudication that the common law liability of a telegraph company may be limited by a mere notice unless it is brought to the personal knowledge of the sender of the message and he is shown to have assented to it. In this state a common carrier may by an express contract with the shipper exempt itself from liability for loss or damage occasioned by the negligence of its servants. Wells v. N Y. C. R. R. Co., 24 N. Y., 181; Bissell v. N. Y. C. R. R. Co., 25 id., 442; Poucher v. N. Y. C. R. R. Co., 49 id., 263; Cragin N. Y. C. R. R. Co., 51 id., 61; Spinetti v. Atlas S. S. Co., 80 id., 71; Mynard v. Syr., B. & N. Y. R. R. Co., 71 id., 180; Wheeler on Carriers, 76, 86. But a common carrier cannot by notice limit its common law liability to safely carry and deliver goods without evidence of the shipper’s assent to the limitation proposed. Hollister v. Nowlen, 19 Wend., 234; Cole v. Goodwin, id., 251; Clark v. Faxton, 21 id., 153; Camden, etc. Trans. Co. v. Belknap, id., 354; Dorr v. N. J. Steam Nav. Co., 11 N. Y., 485; Blossom v. Dodd, 43 id., 264.

Telegraph companies organized like the defendant under chap. 265 of the Laws of 1848, and the acts amendatory thereof and supplementary thereto, like companies incorporated for the carriage of goods and passengers, owe duties to the public. Such corporations, like railroads, may exercise the right of eminent domain and they are required to exercise due diligence to transmit with celerity and skill all messages delivered to them subject to such reasonable rules as may be adopted to protect their rights and facilitate the performance of their duties. They, like common carriers, have become necessary instrumentalities for conducting the business of the country and they owe the same duty to the public, and we think should be held to the same rule in respect to their right to limit their liability by notice. In this state the doctrine that the common law liability could not be limited without an express contract has been applied to individuals and firms acting as common carriers as well as to corporations.

In MacAndrew v. The Electric Tel. Co., 17 Com. B., 3, it was said that the common law liability of a telegraph company may be limited by notice, but the report of the case does not show whether the message was written on a blank with or without conditions. But in England it was held that carriers could by notice limit, their liability for the loss of goods even in cases of gross negligence, which resulted in statutes providing that their liability could not be limited except by an express contract. Section 6, chap. 68, 11 Geo. IV and 1 Wm. IV; § 7, chap. 31, 17 and 18 Vict.

In Clement v. Western Union Telegraph Co., 137 Mass., 463, a message not written upon one of the defendant’s blanks was sent to its office for transmission. It was forwarded in due time, but was not delivered by the office at which it was received. In an action brought for the recovery of damages occasioned by the failure to deliver, it appeared that the plaintiff's agent, who sent the message, knew the terms and conditions on which the defendant by its rules provided that messages should be sent over its line as set forth in the blank then in use by it, and it was held that this knowledge of the plaintiff’s agent was binding upon him, and that no recovery could be had. . .

In the case last cited a different rule was applied to telegraph companies from the one applied by the same court to express companies. In Grott v. Dinsmore„ 111 Mass., 45, the plaintiff shipped goods by express, not taking, at the time, the usual receipt containing printed conditions limiting the liability of the company, with which the plaintiff was familiar, he having been m its employment and issued many such receipts. It was held that mere notice brought home to the owner of the goods, by which the carrier seeks to limit its common law liability, and the terms of which are not expressly assented to, were insufficient to defeat a claim for loss. The court said: “ Nor does the knowledge of this regulation which the plaintiff had previously acquired while in defendant’s employment subject him to the limitations imposed by the receipt.” In Ellis v. American Tel. Co., 13 Allen, 226, the reasons are clearly and satisfactorily stated for the existence of the rule that telegraph companies are not, unless they so expressly contract, held to warrant or insure the accurate transmission or prompt delivery of messages, and are only liable for negligence. But we find no satisfactory reason in this, or in any case, for a rule that such companies may by notice limit their liability for negligence, nor do we see any in the nature of the business in which they are engaged. Carriers and telegraph companies are alike engaged in quasi public employments, and persons are from necessity compelled to employ the latter without more opportunity for choice and deliberation than when they select the former. As before shown, the liability on contract of earners of goods which is implied by law cannot be limited by notice, and it is difficult to see why telegraph companies should, be permitted to limit a much less onerous obligation by a mere notice.

The judgment should be affirmed, with costs.

Bradley and Brown, JJ. (dissenting.)

After the blank known as form No. 2. was put in evidence the defendant's counsel was not permitted to read to the jury the rules and regulations printed upon said blank and which stated the condition upon which all messages were taken by the company. In substance these regulations were to the effect that the company would not be liable for mistakes in the delivery of a message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, unless the sender should order the message telegraphed back to the originating office for comparison, and for that service one-half the regular rate was to be charged in addition to the amount received for sending the message.

The defendant testified that he had no knowledge of the terms of the conditions upon the form No. 2 ; but there was ample evidence in the case from which the jury could have found that the plaintiff knew of these regulations and that all messages received by the company were sent over its wires subject thereto.

If the jury had so found it would also have been permissible . for them to find that the message in question was sent subject to such conditions, and that the defendant’s liability was limited to the amount charged for sending the message.

A special and express contract is not necessary to limit the liability of a telegraph company for mistakes in the transmission of messages, and in this respect such corporations differ from common carriers. The reasons for this distinction are very clearly pointed out in Ellis v. American Tel. Co., 13 Allen, 226, and in the views there expressed we concur.

In that case the message was written upon one of the blanks of the corporation upon which was printed the rules of the company limiting its liability.

In Clement v. Western Union Tel. Co., 137 Mass., 463, the message was not written upon one of the defendant’s blanks, but on its delivery to the defendant it was upon a plain piece of paper. The condition upon which defendant by its rules provided that messages should be sent over its line as set forth in the form or blank in use by it were, however, known to the plaintiff’s agent, such blanks having been frequently used by him, and it was accordingly held that a finding was warranted that the contract was entered into subject to the stipulations contained upon such blanks and that the plaintiff could recover only the cost of the message.

We can see no conflict between this case and Gott v. Dinsmore, 111 Mass., 45, cited in the prevailing opinion, the latter being an action against an express company for the loss of a trunk, and was disposed of by the application of rules of law applicable to common carriers.

In this state it has been decided that a telegraph company is not a common carrier, and is not subject to the peculiar liability of common carriers. Breese v. U. S. Telegraph Co., 48 N. Y., 132; Schwartz v. A. & P. Tel. Co., 18 Hun, 158; Kiley v. Western Union Tel, Co., 109 N. Y., 231; 14 N. Y. State Rep., 816.

In the case last cited, in speaking of the regulations limiting the liability of the company unless the message was repeated, it was said: “ That a telegraph company has the right to exact such a stipulation from its customers is the settled law in this, and most of the states of the Union and in England. The authorities hold that telegraph companies are not under the obligation of common carriers. They have the right to make reasonable regulations for the transaction of their business and to protect themselves from liabilities which they would' otherwise incur through the carelessness of their numerous agents and the mistakes and defaults incident to the transaction of their peculiar business.

“ The stipulation printed in the blank in use in this case has frequently been under consideration in the courts, and has always in this state and generally elsewhere been upheld as reasonable.”

In .that case the message was written upon one of the printed forms of the defendant, and it was decided that the plaintiff would be held by the use of the blank and its delivery to the company to have assented to the conditions thereon, although he might not have known their precise terms, and the Massachusetts case referred to, and the Breese case, and Schwartz case, were cited as authorities for such decision.

The authorities cited establish, in our opinion, the rule that a telegraph company may limit its liability for mistakes in the transmission of messages by reasonable regulations brought to the knowledge of its customers and had the jury found, as they might have done upon the evidence in this case, that the plaintiff knew that such regulations had been established and that the defendant’s liability was limited to the amount charged for sending the message, unless it was ordered to be telegraphed back, it would also have been permissible for them to find that he contracted with the defendant upon such condition. Whether the court would have been justified, upon a finding of knowledge of these conditions upon plaintiff’s part, in holding as a matter of law, that he must be deemed to have assented to the condition, it is unnecessary to here state, in view of the fact that the judgment is to be affirmed.

The views, now expressed, sufficiently indicate the difference existing between the majority and. minority of the court

It was material to a proper disposition of the case that the regulations printed upon the blank put in evidence should have been read to the jury, and it was error for the court to exclude them, and for such error the judgment should be reversed and a new trial granted.

Judgment affirmed, with costs.

All concur, except Bradley and Brow^t, JJ., dissenting, and Haight, J., not sitting.