text:
    CAROLINE DAVISON, Trustee, etc., Respondent, v. THE ASSOCIATES OF THE JERSEY COMPANY, Appellants.

      Contract for sale of land — default — what amounts to rescission of — specific pmformance.

    Where, by the terms of a contract for the sale of land, the vendor is to deliver the deed on a certain day, and the vendee is then to deliver a mortgage thereon for a specified sum, and before the appointed time the vendor notifies the vendee of his readiness to deliver the deed, and after that day tenders the deed and demands the mortgage, with which demand the vendee refuses to comply, without assigning any sufficient reason therefor, such refusal amounts to a rescission of the contract on his part, and the vendor may thereafter lawfully sell the land to another person.

      Qumre, whether, after the vendor has sold the land, the court will retain an action, brought by the vendee, for specific performance, in order to award him damages for the breach of the contract.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee, in an action brought for the specific performance of a contract.

      Edga/r 8. Vcm Winhie, for the appellant.

      E. E. Bullard, for the respondent.
   Learned, P. J.:

This action arises upon a contract between one Erastus Davison and the defendants. The plaintiff obtains title to the rights of Erastus Davison through proceedings supplementary, and a sale by the receiver appointed under the same.

An agreement had been made between Erastus Davison and the defendants, in May, 1858; but on the 8th of December, 1858, another agreement was made between the parties. This put an end to the former agreement. And the referee correctly holds that this latter agreement is the only one subsisting between Erastus Davison and the defendants, under or by force of which the plaintiff can claim any legal or equitable relief.

This agreement recites an agreement of even date, by which Davison was to build five buildings for the associates, which were to be completed on or before May 1, 1859, and then binds the associates, on the completion of the buildings according to the contract, to convey the tract of land on which they are to be built to Davison for $22,880, to be paid by five separate bonds and mortgages of Davison on the several lots, to that amount in the aggregate. The latter part of the agreement contains a clause that the buildings are to be completed and the bonds and mortgages given, on or before August 1, 1859, or the agreement and the building contract shall be void, at the option of the associates, as against them.

The referee finds that Davison had substantially finished said buildings on or about May 1, 1859.

On the 23d day of July, 1859, the defendants served a notice in writing on Davison, notifying him that they had executed and were ready to deliver a conveyance, in pursuance of the aforesaid agreement.

They had previously executed such conveyance and had it ready for delivery; and, on the 11th day of August, 1859, the defendants tendered such a conveyance to Davison and demanded of him the bonds and mortgages provided for in the agreement; and Davison refused to execute and deliver the bonds and mortgages, and did not and would not receive the deed.

On the 23d of May, 1859, Davison notified the defendants that he had finished the work, and demanded payment.

On the 29th of July, 1859, Davison notified the defendants that he demanded a deed, and that he had executed bonds and mortgages. On the day following Davison tendered to the defendants a deed for their execution. He also tendered to them five bonds and mortgages. But these bonds and mortgages were expressed to be to secure sums considerably larger than the sums provided for in the agreement.

The defendants refused to receive these bonds and mortgages or to have the deeds executed.

It might seem strange that the defendants declined to accept bonds and mortgages for a Iwrger amount than specified in the agreement. But it was explained, on the argument, that Davison claimed that the defendants ought to advance to him the amount in which these mortgages were in excess of those provided for in the agreement. After Davison refused to. accept the deed, the buildings remained unoccupied, partially open, and to some extent unfinished, till, in March, 1860, the defendants sold them for $24,400.

In July, 1864, this action was commenced for specific performance of the agreement. The referee gave damages for its breach.

The referee holds that Davison, by failing to tender to defendants, on or before August 1, 1859, the bonds and mortgages, afforded defendants a justification for declaring the agreement void.

That the defendants, by tendering Davison a deed after August 1st, 1859, waived his previous defaults.

That by reason of their failure to give Davison notice of their intention to consider the agreement void, they remained liable to make specific performance until the lots were sold.

It is important to observe that no payment has ever been made by Davison on this purchase. The whole purchase-money was to be secured by the bonds and mortgages.

It appears, then, according to the finding of the referee, that the defendants were not in default at the time when they tendered their deed on the 11th of August, 1859. That is; there had been no demand of them, accompanied by a tender of the proper mortgages.

On that day, then, they offered to perform the agreement; tendered a deed and demanded the bonds and mortgage; and Davison refused to accept the deed, or to give the bonds and mortgages. The referee finds nothing as to the reason of such refusal, and there is nothing in the evidence which makes this in any way a qualified refusal. The ground of refusal appears to have been a claim of Davison in respect to certain moneys received from the (so called) Demeure mortgages. This claim the plaintiff abandoned by stipulation in this action; and the facts found by the referee show that it was groundless.

We have, then, the case of a tender of performance on the part of the vendor, and of an absolute refusal on the part of the purchaser, without any reason for such refusal, and without any qualification.

In the case of Hubbell v. Von Schoening (49 N. Y., 326), where the court held that a party was excused for neglect to perform, it was said that the defendants had not put the plaintiffs in default by an offer and demand of performance.

In Ketchum v. Evertson (13 Johns., 359), it is decided that a person who has advanced money in part performance of a contract, but refuses to proceed (the other party being ready to perform), cannot recover back the money. After such refusal by the vendee, the vendor is at liberty to sell the land to another. Judge Spencer says: “ The plaintiff's cannot, by their own wrongful act, impose on defendant the necessity of retaining property which his exigencies may require him to sell.”

In Page v. McDonnell (55 N. Y., 299), it is said: “ The defendants were ready, and tendered full performance on their part. The plaintiff neglected and refused to perform on his part, for which reason the contract was terminated by the defendants. Under these facts the plaintiff is not entitled to recover the money he had paid thereon.” In that case it is stated that the defendant told the plaintiff he must accept the deed and complete the purchase, or he would put an end to the contract. But the reason why it became important, that the defendant- should make that announcement, was this: The plaintiff made a specific objection that there were certain incumbrances which should be removed. If the defendant had not insisted on the completion of the purchase then, it might have been claimed that he admitted his liability to remove the incumbrances; an act which could not be done at that moment. In the present case, the tender of the deed and the demand for the bonds and mortgages made it necessary for Davison to accept or to refuse on the spot, unless he had asked for some reasonable delay. This he did not do. His refusal was absolute. What more was necessary ? Of what avail would it be for the defendants to tell him, that they should consider the agreement of December eighth void % If he had not broken the agreement, nothing which they could state to him would relieve them from its objection. If he had, they were relieved; unless they chose to waive his breach of the agreement.

It is true that every neglect to perform by the party does not amount to a rescission by him. But a tender by the one party, and a refusal by the other to perform the contract, unexcused, must be a rescission by the latter. (Monroe v. Reynolds, 47 Barb., 574.)

Furthermore, Davison was fully notified by the defendants that they treated the contract as rescinded. He knew of their intended sale of the property. He was present at the time advertised for the sale. If he desired to perform the contract, which he then knew that the defendants treated as rescinded by him, he might have offered performance, for the premises were not, in fact, sold, until more than a month afterwards. That he made no such offer shows at least that his refusal to perform according to the terms of the contract was absolute, and, perhaps, indicates a want of good faith.

Treating this action as one for specific performance, which is the demand of the complaint, it is liable' to the objection that there has been too much delay. After the defendants sold the property, four years and more elapsed before this suit was commenced. “A party cannot call for specific performance unless he has shown himself desirous, prompt and eager.” (See Delavan v. Duncan, 49 N. Y., 485.)

Indeed, as the defendants had sold the land before the action had commenced, such relief could not be granted. Whether the court could retain the action for the purpose of giving damages, thus depriving defendants of their absolute right to a jury trial, we need not decide. (Code, 253; Morss v. Elmendorf, 11 Paige, 277; Barnes v. Quigley, 59 N. Y., 265; Cuff v. Dorland, 55 Barb., 481.)

We think the judgment should be reversed, and a new trial granted, costs to abide the event. The reference should be discharged.

Present — Learned, P. J., Bookes and Boardman, JJ.

Ordered accordingly.


source: Caselaw Access Project

author: Boardman, J.

license: Public Domain

text:
    WALTER S. CHURCH, Appellant, v. JAMES KIDD and others, Respondents.

      Payments — application of — interest — when allowed.

    Kidd and Cagger held certain manorial leases, as trustees, to secure the payment of advances made thereon by certain of the defendants, after the payment of which the leases were to be assigned to the plaintiff. Philip Church took a subsequent lien on them for $45,000, which was afterward assigned to Kidd and Cagger, under an agreement authorizing him (Philip Church) to redeem within ten years on payment of $18,000 and interest, to be compounded semi-annually, with annual rests. The equity of redemption was subsequently assigned by Philip Church to the plaintiff.
    In this action, brought by the plaintiff to procure an assignment of the leases, upon payment of what was due from him, an accounting was had; the plaintiff insists that the referee erred in not applying payments, made by him to Cagger, first upon the Philip Church contract, so as to stop a harsh rate of interest. Held (1), that, as plaintiff was under no obligation to pay the amount secured by the Philip Church contract, under the assignment of the latter’s equity of redemption, Cagger had no right to apply the money received by him, as trustee, inpayment thereof; (2), that Cagger had an absolute right to appropriate the moneys received or collected toward the payment of the first and oldest lien; and that plaintiff had no right, equitable or otherwise, to require payments received by Cagger, in the ordinary business of the trust, to be applied toward the extinguishment of a collateral debt, secured by a second lien upon the trust property in his hands.
    The referee allowed Cagger interest' upon the amounts due to him for legal services. Held, that this was proper. Where services in a particular case are rendered, or where, by contract of the parties, the amount is payable, or where it is liquidated by the fee bill, interest must be allowed upon the debt. {Adams v. Port Plain BanJc, 36 ET. Y., 255; Hadley v. Ayers, 12 Abb. [ET. S.], 246; Mygatt v. Wilcox, 45 N. Y., 306.)
    Appeal by the plaintiff from an order of the Special Term, confirming the report of the referee in an accounting.

      This action was brought to procure the reassignment of certain leases to the plaintiff, upon the payment by him of the amount due to the defendants. The opinion of the General Term upon an appeal from the judgment, under the provisions of which the order of reference was made, is reported in 10 Supreme Court (3 Hun), 254.°

      W. S. Revenor, for the appellant. George W. Miller, for the defendant Kidd. Samuel Rand, for the defendants Cagger and others.
   Opinion by

Boardman, J.

Present — Learned, P. J., Bookes and Boardman. JJ.

Order modified, and as modified affirmed, without costs to any of the parties.


author: per Guriam.

text:
    DAVID ACKART, Respondent, v. GILBERT V. LANSING and another, Appellants.

      Charge — error i/n — when judgment reversed for.

    While the court may reverse a judgment lor an error in the charge to the jury, in the absence of an exception, it will only do so when it is evident that the court misunderstood the law, and, as a consequence, misdirected and misled the jury in the general effect of the charge.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying- a motion for a new trial made on the ground of surprise and of newly discovered evidence.
    The judgment entered upon a former trial of this action was reversed by the Court of Appeals (59 N. Y., 646; 48 How., 374), on the ground that, under the evidence, the negligence of the defendants was a question of fact for the jury.
    ■ The General Term, upon this appeal, held, that the evidence given upon the trial did not differ essentially from that given upon the first trial, and felt bound to follow the decision of the Court of Appeals, and to treat the verdict of the jury as conclusive.

      E. F. Bulla/rd, for the appellants. B. A. Barmenter, for the respondent.
   Opinion

per Guriam.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    BENJAMIN BLAIR, Appellant, v. WILLIAM WAIT and WILLIAM G. WAIT, Respondents.

      Estoppel — compromise of debts.

    Where a debtor is negotiating a compromise of his debts, and one of the creditors states to him that a certain third party owns the debt apparently due to that creditor, and the debtor subsequently goes on and compromises with all his creditors effecting the compromise as to that debt with such third person, and paying him the amount of the compromise, the creditor making such statement is estopped from showing that it was untrue.
    Appeal from a judgment entered on a verdict in favor of the defendants at the Pulton county Circuit.

      Henry E. Smith, for the appellant. James M. Dudley, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Bocees, JJ.

Judgment affirmed, with costs.


author: per Curiam.

text:
    FRANKLIN H. PERSON, Appellant, v. A. PARDEE and others, Respondents.

      S&i'vice of summons — when sel aside — attendance as a witness.

    The service of a summons upon a non-resident while attending as a witness, in good faith, the trial of an action in one of the courts of this State, is irregular and will be set aside. (Leaver v. Robinson, 3 Duer, 622; Merrrül v. George, 23 How., 331.)

      Appeal from an order made at the Special Term setting aside the service of the summons in this action.

      Hart & Mo Quire, for the appellant. H. G. Moalc, for the respondents.
   Opinion

per Curiam.

Present — Learned, P. J., Boardman and Bocees, JJ.

Order affirmed with ten dollars costs, besides disbursements for printing.


text:
    GEORGE BEBINGER, Respondent, v. BENJAMIN A. SWEET, Appellant.

      Malicious prosecution— evidence to sustain action for.

    In an action for malicious _ prosecution, it is not nenessary to allege or prove on the trial that the prosecution has terminated. (3 Greenl. Bv., § 453; Granger v. EM, 4 Bing. 3ST. 0., 313.)
    Appeal from a judgment entered .on the verdict of a jury in favor of plaintiff, and .from an order denying a motion for a new trial.

      Mead <& Burlingame, for the appellant. Amasa J. Parker, for the respondent.
   Opinion by

Boardman, J.

Present — Learned, P. J., Boardman and Bookes, JJ. ■

Judgment and order affirmed, with costs.


text:
    JAMES H. EVERETT and JOSEPH C. TREADWELL, Respondents, v. TEUNIS H. SCHEPMOES, Impleaded, etc., Appellant.

      Partnm'ship real estate —partnership debts —judgment recovered, for — priority of over prior mortgage given by one of the partners.

    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.
    In 1867, Whitaker and Dubois formed a copartnership in the grocery and bakery business, and purchased the real estate affected hythis action, for the purposes of such partnership, for-the price of $5,400. Each of said partners paid $750 toward such purchase-price, and they jointly gave a mortgage thereon for the balance of the purchase-money. Hendricks & Co. had, before that time, owned such real estate; and the grocery and bakery, stock and fixtures, and the whole was sold hy Hendricks & Co. to Whitaker & Dubois at one and the same time, and as a single transaction. Whitaker & Dubois continued in the business, as partners, for one year; they and their families occupying these premises in connection with their business.
    In 1868, Whitaker, with the consent of Dubois, sold his interest in the real estate and partnership business to Moses W. Schepmoes for $3,300, subject to payment of one-half of the $4,300 mortgage. Dubois & Schepmoes continued the business, as partners, in the same place and manner, until November, 1872, occupying the premises for their business and as a residence for their families. During this time they paid out of partnership funds the interest and $1,200 of the principal of the $4,300 ■ mortgage. They also paid for repairs of buildings some $500, and all taxes.
    In November, 1872, Dubois, with the consent of Schepmoes, sold his interest in the real estate and the copartnership to Elijah Ellsworth; the deed for the real estate being to “Elijah Ellsworth and his wife.”
    Ellsworth then took the place of Dubois in the partnership, and the same was continued as before until December, 1873, when it was closed out hy a sheriff’s sale of the personal property. The consideration upon Ellsworth’s purchase was $4,000; the one-half of the purchase-money mortgage to be deducted therefrom, and assumed by Ellsworth, and he paying the balance in cash. During this partnership of Ellsworth & Sehepmoes $300 of principal, besides interest, was paid upon the old mortgage, and also the taxes upon the premises. In December, 1873, Ellsworth & Sehepmoes were insolvent.
    Between June and September, 1873, the plaintiffs sold and delivered to Ellsworth & Sehepmoes goods and merchandise, for which, on the 19th of December, 1873, they recovered judgment against Ellsworth & Sehepmoes for $L,368.54, upon which was collected, from sale of personal property, $689.86, and the execution was returned unsatisfied as to the balance.
    In November, 1873, Moses Sehepmoes and wife gave to the defendant, Teunis II. Sehepmoes, a mortgage upon the undivided half of said real estate, then in the possession of, and used by said last named firm. The consideration therefor was debts and liabilities existing in favor of Teunis against Moses, prior to 1873, and no new advances were made by Teunis when it was given.
    It was claimed, in this action, that this mortgage should be postponed to plaintiffs’ judgment; and that one-half of plaintiffs’ unpaid judgment should be paid out of Moses Sehepmoes’ half of the real estate, in advance of, and in preference to Teunis H. Sehepmoes’ mortgage.
    The General Term held, that, considering the manner in which this property was bought and sold, the manner in which, and the purposes for which it was used, and the conduct of the parties in applying the partnership funds in the payment for, and the maintenance of the property, the referee was correct in holding it to be partnership property (Garrett v. Scheffer, 47 N. V., 656; Buchan v. Sumner, 2 Barb. Ch., 165); and that the separate creditors of an individual partner had no right to it until the debts of the firm were first paid. (Ooll/umb v. Read, 24 N. Y., 510; Hiscock v. Phelps, 49 id., 97, 103; Delmonico v. Guilliame, 2 Sandf. Oh., 366.)

      M. Schoonmaker, for the appellant. J. N. Fiero, for the respondents.
   Opinion by

Boardman, J.

Present — Learned, P. J., Bocees, and Boardman, JJ.

Judgment affirmed, with costs.


text:
    THE NATIONAL BANK OF FORT EDWARD, Respondent, v. JAMES GOODWIN, Appellant, and AMOS H. COBB, Survivors, etc.

      Order — made in one district staying proceedings in an action in another — effect of— when not vacated.

    Appeal from an order made at the Special Term, vacating an order staying proceedings in this action. On December 11, 1874, an order was made in an action pending in the first district, which was brought to settle the affairs of the firm of which the defendants were the survivors, staying all proceedings in this action, which was brought in the fourth district, to secure the payment of an indebtedness due from the said firm to the plaintiff. On the sixteenth of November an order was made in this action, vacating and setting aside the order of December eleventh.
    The General Term held, that as the papers upon which the order was granted in the action pending in the first district, staying plaintiff’s proceedings in this action pending in the fourth district, were not before it, it was not in a situation to say that such order was improperly granted. If it was improperly granted, it was either void or voidable. If void, the plaintiff was not bound by it, and could disregard it. If irregular, and therefore voidable, the plaintiff had two remedies.
    First. To apply, under the authority granted in the order, for its correction or amendment; or,
    Second! To appeal from the order, to the General Term of the first district.
    But in no event would it be proper for the plaintiff to move in the fourth district, to set aside an order, granted on a full hearing in the first district, in an action there pending, even though the obnoxious order affected, plaintiff’s conduct of his action in the fourth district.
    Such practice would lead to great confusion and conflict, and would be mischievous in its effects. That undoubtedly the court in the first district would correct any error into which it might have fallen, if any such existed, upon a proper application there made.

      Henry H. Demies and James MeWamee, for the appellant. A. D. Waite, for the respondent.
   Opinion

per Curiam.

Present —Learned, P. J., Bocees and Boardman, JJ.

Order reversed, without costs to either party.


author: Beady, J.:

text:
    ELI J. CRANDALL et al., Respondents, v. JAMES McKAYE, Appellant.
    Attachment— affidavit on application for — statement of cause of action in.

    •In this case an attachment was issued upon an affidavit stating that a cause of action existed in favor of the plaintiff against the defendant, arising out of a contract made and executed hy the defendant, which was “ more particularly set forth in the copy of complaint hereto annexed.” A copy of a verified complaint setting forth the contract was annexed to the affidavit. Held, that the affidavit was sufficient, and that the attachment was properly issued.
    Appeal from an order denying a motion to discharge an attachment.
    The affidavit, upon which the attachment, was issued, was made by the agent of the plaintiffs, who swore to the existence of “a cause of action in favor of said plaintiffs and against said defendant, arising out of a contract made and executed by said defendant, and by him delivered to said plaintiffs, and which is more particularly set forth in the copy of complaint hereto annexed in this action, and which contract was executed and delivered by said defendant to these plaintiffs in presence of deponent.”
    Annexed to this was a copy of a complaint, all the allegations of which were positively stated, and which was verified as follows:

      City and County of New York, ss. :

    William W. Mann, of said city and county, being duly sworn, says: That he is the agent and attorney in fact of the plaintiffs, and has read the foregoing complaint and knows the contents thereof, and that the same is true of his own knowledge, exeeyt as to matters stated on information and belief \ and as to those matters he believes it to be true. That the reason why this complaint is verified by him and not by either of said plaintiffs is, that he has in his possession the original contract signed by said defendant and set forth in said complaint, and has a personal knowledge of the matters therein stated derived from the fact that, as. attorney of the plaintiffs, he drew the said contract or agreement of the said defendant mentioned in the complaint, and participated in the negotiations of said contract, and has seen and examined the accounts delivered by said defendant MeKaye, and therefore has a better personal knowledge of the facts and circumstances connected therewith than either of said plaintiffs, except Eli J. Crandall, who is now absent from the city and county of New York.
    WM. W. MANN.
    John J. Thomasson,

      Notary Publie, New York City and County.

      Barrett, Redfield & Hill, for the respondent.

      Porter, Lowrey, S'oren c& Stone, for the appellant.
   Beady, J.:

stated, that there was a cause of action in favor of the plaintiffs and against the defendant, arising out of a contract made and executed by the defendant, and by him delivered to the plaintiffs, and which was more particularly set forth in the copy complaint annexed, and which contract was executed and delivered by the defendant to the plaintiffs, in the presence of the deponent. The copy complaint referred to is a transcript of that paper in this action. All the material averments in it are positively made, and it appears from its allegations that the plaintiffs have a cause of action founded on contract, the grounds of which are stated, and the The affidavit on which the attachment was granted in this case amount of which is also averred. The verification appears to have been made by the plaintiff’s agent and attorney in fact, and from personal knowledge of the matters stated ; and he asserts that he has a, better knowledge of the facts and circumstances connected with the contract than either of the plaintiffs, except Eli J. Crandall, who was then absent from the City and County of New York. The question presented is, whether the omission to state the grounds of the claim and its amount, in the affidavit, and to make the complaint a part of it by express words therefor, does not render that paper insufficient to sustain the attachment. By section 229 of the Code, the warrant of attachment may be issued whenever it shall appear by affidavit that a cause of action exists, specifying the amount of the claim and the grounds thereof. The language is, “ whenever it shall appear by affidavit; ” and all the prerequisites did appear by the affidavit in this case, on which the attachment was granted. The details were in the complaint, and a copy of it was annexed, which revealed to the judge considering the applicatiou for the process what they were, and from which the necessary conclusions could be drawn. The complaint could be used as an affidavit (Palmer v. Hussey, 59 N. Y., 647), and we do not understand why a sworn- copy may not be employed in the same way. It becomes necessarily a part of the affidavit, when annexed and referred to, as it was in this case; and referred to for a full statement of the cause of action, as it was alleged to. exist. It could not be said, after reading the affidavit and complaint, that it did not appear that a cause of action existed in favor of the plaintiffs against the defendant. There was quite enough to satisfy the judicial mind, of the existence of all the necessary elements demanding the exercise of its authority ; and the judge granting the process was, therefore, justified in doing so upon the papers presented. We do not mean to be understood as deciding that this mode of procedure is the best that might be adopted. We think it would be better to embrace in the affidavit all the necessary facts; or, if resort must be had to it, to annex the original complaint, and not a copy. ,

Order affirmed, with ten dollars costs and disbursements.

Daniels, J., concurred.

Ordered accordingly.


author: Brady, J.:

text:
    In the Matter of the Application of the Department of Public Parks to LAY OUT A PUBLIC DRIVE from One Hundred and Fifty-fifth street, etc.

      Street — dedication of land — right of owner of fee of, to damages for land taken.

    Commissioners appointed to open a street in New York, awarded damages for a portion of the land taken to “ unknown owners.” The land taken was a part of One Hundred and Fifty-seventh street. One D. claimed the land by virtue of a conveyance to him in 1858 of the adjoining land, his deed bounding him by the northerly side of One Hundred and Fifty-seventh street. One Q-. claimed it by virtue of a conveyance, from the widow and heirs of D.’s grantor, made in 1868, of the land in front of D.’s lot, being a part of One Hundred and Fifty-seventh street, the locus in quo. The land taken had never been used as a street. Held (1), that the conveyance to D. operated as a dedication of the land to the public as a street; (3), that the owner of the fee was only entitled to nominal damages for the taking thereof; (8), that the award of the commissioners must have been made in ignorance of the fact of the dedication of the land or of the law applicable to the case ; (4), that as all the parties were before the court the award should be corrected, by directing the money to be paid over to the city of New York, as the one properly entitled thereto.
    Appeal from an order denying a motion to confirm the report of a referee declaring George B. Grinnell entitled to an award, made by the commissioners appointed to lay out a drive in the city of New York, to unknown owners.

      Josiah Porter, for Grinnell, appellant.

      Henry Woodruff and Walter Howe, for John Dailey, respondent.

      W. O. Whitney, for the city.
   Brady, J.:

The commissioners of estimate and assessment for laying out a road or public drive northward from the southerly line of One Hundred and Fifty-fifth street, to the intersection of the Kingsbridge road with Inwood street, in the city of New York, awarded, for a part of the land taken for the purpose indicated, and to unknown owners, the sum of $1,547. The land formed a part of One Hundred and Fifty-seventh street. This award was claimed, on the one hand, by George JB. Grinnell, and on the other, by John Dailey. Dailey’s title was derived through a deed dated December 9, 1853, bounding the premises conveyed, by the northerly side of One Hundred and Fifty-seventh street, and Grinnell asserted his ownership under a deed executed by the widow and devisee of Dennis Harris, dated 13th December, 1868, by which she conveyed' to him the street in front of Dailey’s grant, or the loous i/n quo. The disputed territory was never used as a street. It was inclosed by Dailey, although he had, from his deed, notice that it had been dedicated to the public use as a part of One Hundred and Fifty-seventh street. The referee found in favor of Grinnell, and it seems, upon the proposition that it was covered by the grant of Mrs. Harris, and that there had been no adverse possession by Dailey. In the view that is taken of this appeal, however, it is wholly immaterial what the conclusions of the referee were on that subject. The referee, in addition to the findings, which were essential to the disposition of the matter before him, also found that the loous in quo had been dedicated to either public or private use as a street, and only a nominal award should have been made for it; but as the commissioners of estimate and assessment made an award for it, the award belonged to the owner of the fee. The referee, in thus disclosing his views, gave a correct exposition of the law, save in one respect, namely, that the award belonged to the owner of the fee. The dedication of the land as a public street was made by the grantor, through whom both disputants derive title, namely, Dennis Harris. The appropriation of the land thus made, entitled the owner of the adjoining-land to nominal damages only. His grant was to the line of the street, and any subsequent conveyance of the bed of the street to the centre of it, or the whole of it if owned by his grantor, would confer no right upon the grantee to demand or receive any compensation for it from the city. The language of the conveyance to Dailey, constituted a dedication of the land as a street to the public use, and its employment for that purpose authorized the grant of nominal damages only. (In re Ingraham, 11 N. Y. S. C. [4 Hun], 495, and cases cited.) The award to qnknown owners was not a specific award to either of the claimants in this proceeding. It was intended as an appropriation of the sum named to the owner of the fee entitled to indemnity, and not otherwise. The city is as much the owner, within the true intent and meaning of the report of the commissioners, as either of the disputants here urging his claim. The right to the use of the street had already been secured by it, by virtue of its dedication. It was only necessary to adopt the proceedings which were taken to acquire the fee (Matter of Ingraham, supra), and for which, as we have seen, in consequence of the dedication, only a nominal sum could be demanded or given, according to the law of the State. The commissioners, in ignorance, doubtless, of the dedication, and if not of that fact, certainly in ignorance of the law, made the award mentioned. This may justly be assumed, but if not, then this court, ex débito justiUce, can correct the error into which they have fallen. This power cannot be questioned, and should always be employed in a case like this, where the award is general to unknown owners,” and not specific, in order to prevent a palpable wrong, particularly when all the parties interested, as in this matter, are before the court. The court of last resort has not failed to express this view of a subject to which its attention was drawn, although not directly presented by the appeal. Justice Balcom said, But a proper regard for the due administration of the laws of the land requires that this court should not permit such orders to go unnoticed ” (Devin, v. Patchin, 26 N. Y., 448), and then proceeded to demonstrate that the surrogate’s allowances were improperly made, although no one had appealed from them. "We apply this principle here, and we think, for the reasons assigned, the litigant parties to this proceeding are not, nor is either of them, entitled to the relief sought. The fund in question belongs to the city of New York, less perhaps the nominal award which might have been made, and of which this court would take no notice. De minimis non eurat lex.

For these reasons, the order made at Special Term should be reversed, and the proceedings remanded to the court below, to be disposed of according to this opinion. No costs of this appeal to either party.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


text:
    JOSEPH SPEARS et al., Respondents, v. JOHN MATHEWS, Appellant.

      Temporary injunction — power of court to grant — when may he granted.

    Where a temporary injunction is granted, on the application of the plaintiff, the Supreme Court has power to continue the same in force after the entry oí judgment in the action in favor of the defendant, and during the pendency of an appeal therefrom.
    Appeal from an order made at the Special Term, reviving and .continuing in force, an injunction previously granted in this action, after judgment had been entered therein in favor of the defendant.

      Thomas Allison, for the appellant.
    After judgment, and pending an appeal therefrom, the court has no power to grant an injunction in the same action, nor to renew a preliminary injunction previously granted. {Erie Railroad Co. v. Ramsey, 45 N. Y., 637-645; Fellows v. Heermans, 13 Abb. Pr. [N. S.], 1.)

      E. N. Taft, for the respondent.
    That the court has the power to revive and continue the injunction during the pendency of the appeal from the judgment dismissing the complaint, will be seen by reference to the following authorities: Disbro v. Disbro (37 How. Pr., 147); Hoyt v. Carter (7 id., 141, 142); Hart v. The Mayor, etc. (3 Paige, 381; 2 Wait’s Prac., 120).
   Brady, J.:

The inj unction was continued in this case upon the plaintiffs’ executing a bond, sufficient in its penalty to cover the claim and all damages and costs that might be awarded on the final hearing. The proceeding was a substantial compliance with the provisions regulating appeals, and the stay to be obtained by conforming the appeal to their requirements. Security was given for the full amount of the claim involved. It is wholly immaterial whether the order made at Special Term is called an injunction or a stay, the effect is to prevent the defendant from availing himself of the judgment rendered in bis favor, until the appeal from it is heard and determined. The power to continue an injunction after judgment, has been asserted both by the Supreme Court and two judges of the^Court of Appeals, whose opinions are fortified by authorities bearing directly upon the question.

It is true that in Fellows v. Heermans the inj unction was dissolved, but it does not appear from the case, as suggested by Justice Westbrook, whether from a declared want of power in the Supreme Court to grant it, or because it was unnecessary. It seems to have been unnecessary, because a receiver had been appointed, and the appointment was sustained. It is fairly inferable, from that circumstance, that if the injunction had been necessary it would have been retained. The appointment of a receiver is equivalent to an injunction granted, because he succeeds to the rights of the parties in the subject-matter of-the action, and holds in subordination to the power and 'directions of the court. The continuance of an injunction after judgment, upon giving security sufficient to cover the whole matter in controversy, is in harmony with the provisions of the Code in relation to appeals from judgments ordering the payment of money, where a stay is desired. If these provisions of the Code are not applicable to such a judgment as rendered in this case, then the practice previously existing may be invoked, and, as we have seen from the eases supra, a stay was a remedy for which it made proper provision.

Under these circumstances, and thus sustained by authority, we think the order made at Special Term was provident, and should be upheld.

Order affirmed, with ten dollars costs and disbursements, to abide event.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


author: Davis, P. J.:

text:
    SIMON ABRAMS, Plaintiff in Error, v. THE PEOPLE. Defendants in Error.

      Larceny — criminal intent — at time of talcing possession of property — essential constituent of.

    The prisoner received certain material, to he made into coats and returned to the party furnishing it. He made it up into coats, hut was persuaded to sell them to a peddler, and absconded with the proceeds. Held, that unless it was his intent, at the time he received possession of the goods, to steal them, he could not he convicted of the crime of larceny.
    Writ of error to the General Sessions in and for the county of New York, to review the conviction of the plaintiff in error of the crime of grand larceny.

      Orlando L. Stewart, for the plaintiff in error.

      JB. K. Phelps, district attorney, for the defendants in error.
   Davis, P. J.:

The plaintiff in error was indicted for larceny. On the trial it appeared that he was a tailor, employed by the firm of W. C. Browning & Co., to manufacture clothing for them, and had. been so employed for some years; that on the 12th of May, 1875, that firm sent to him, by express, materials for 138 cassimere coats, to be made up at his house, where-he employed a number of persons in the business of manufacturing. He received the goods, and in the course of the following week or two manufactured the coats; and after they were so made up, was induced by the persuasions of a peddler to sell the coats to him. for $400; out of which he paid the persons in his employ $300, and with the residue went to California, where he was arrested.

There was no direct evidence tending to show that the plaintiff in error intended to steal or convert the goods to his own use at the time they were delivered to him by the owner; but it appeared from his own testimony, that he was induced to make the sale by the over-persuasion of the person to whom it was made, and by his necessities at that time.

The recorder was asked to charge the jury that, upon the evidence in the case, they must acquit the prisoner. This was refused, and an. exception duly taken.

/ He was also asked to charge the jury, that unless they found that the prisoner had it in his heart, and unless it was his intent at the time he received possession of these goods to steal them and convert them to his own use, they could not convict him of larceny. The court refused to charge as thus requested, and said: “ In the first place, it has not been established by evidence that this man had any heart, and the jury cannot take any thing on trust.” An exception was taken to this refusal.

' This exception would, clearly, be fatal, without respect to the exceptionable manner in which the refusal was made, but for the fact that the court subsequently charged the jury in substantial compliance with the request. The charge as made instructed the jury that they must be satisfied by the evidence, beyond a reasonable doubt, that at the time the prisoner received the property from the complainants, he intended to convert it feloniously to his own use, and did so convert it. This was in accordance with the established law in such cases; and the only question left for consideration is, whether or not the judge should not have directed an acquittal, for want of satisfactory evidence to go to the jury upon the question of such intent at the time he received the goods.

There was in this case no evidence of any fraud, trick or device used by the prisoner for the purpose of obtaining possession of the goods ; on the contrary, the materials were delivered to him with the knowledge and consent of the owners, and in accordance with their long,established practice and general understanding, that the coats should be made up and returned in about two weeks.

The prisoner proceeded to make up the materials, and we are unable to discover in the testimony anything tending to show that the idea of stealing or converting the property to his own use, entered into his mind, until after the coats were completed and the peddler had persuaded him to take that course.

Both at common law and by our statutes, there must be a felonious taking to constitute larceny. Our statute defines it to be feloniously taking and carrying away the personal property of another (2 R. S. [Edm. ed.], 699, § 63); and such taking necessarily involves a trespass, or such fraud, trick, or device in getting-possession of the property, as shows that it was obtained without the consent of its owners. This is held to be shown where deceit is practiced for the purpose of getting possession ; because, in such cases the consent of .the owner being obtained by fraud and deception, is in law held to be no consent. But the evidence in this case showed the bailment of the property, under which it was freely, and without fraud on the part of the prisoner, delivered to him for the purpose of the bailment; and he as bailee had not only the lawful possession of the property, but the lien which the law gives to such a bailee for the payment .of the labor bestowed upon the article. The only circumstance in the case from which a felonious intent could possibly be inferred, is the fact of his going away to California after having sold the goods; but that fact, under the circumstances, tended to show an intention to evade the consequence of his wrongful conversion, rather than any intent to steal the goods at the time they were delivered to the express by the owners.

We think the court ought to have instructed the jury, as requested, to wit, that the evidence in the case was not sufficient to justify a conviction of the crime of larceny.

The judgment must, therefore, be reversed, and a new trial granted.

Daniels and Beady, JJ., concurred.

Ordered accordingly.


author: Daniels, J.:

text:
    JOHN DOLAN, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

      Grand jury in city of New Yorh — irregularity in drawing of — commissioner of jvrrors —• authority of— General Sessions — transfes' of cases to Oyer and Tm'minerr — indictment — duplicity — morder in thefn'st degree, indictment for.

    Under the provisions of 3 Revised Statutes (5tli ed.), page 701, section 37, requiring the names of the persons appearing on the lists prepared and filed, as required by sections 35 and 36, to be placed in a box, and the names of the persons to act as grand jurors to be drawn therefrom, there is no authority for the oflicer drawing the grand jurors, or the court before which they may be summoned, to go behind the proceeding of the board by which the list was prepared, for the purpose of nullifying the action of the grand jury, after its formal organization. -
    The power of the mayor of the city of New York to appoint, in pursuance of an act of the Legislature, a commissioner of jurors to prepare the lists from which the names of the persons to serve as petit jurors are to be taken, cannot be tried on a challenge to the array of the jurors so drawn.
    The plaintiff in error was tried in the Court of Oyer and Terminer upon an indictment transferred to that court, by the Court of General Sessions. Upon this writ of error, the plaintiff insisted that the trial court had no jurisdiction, as it did not appear, from the record, that the order of the Court of General Sessions had been entered in its minutes. Held (1), that, as it did not appear that the order had not been entered, it would be presumed that it was; (2) that it was too late to now raise this objection for the first time.
    The Court of General Sessions has power to transfer a case to the Court of Oyer and Terminer, even if the latter court be then in session; by the next Court of Oyer and Terminer, the legislature intended the next court at which an indictment could be tried.
    The first count in the indictment set forth facts showing that the plaintiff in error had committed the crime of burglary, and then alleged that while engaged in the commission of this felony, he inflicted upon the deceased a mortal wound, from which he died ; the second count set forth facts showing that the plaintiff in error had committed the crime of robbery, and then alleged that while engaged in the commission of this felony, he inflicted upon the deceased a mortal wound, from which he died. Held, that the indictment was not bad for duplicity; that to constitute murder in the first degree, the killing must have been committed while the plaintiff in error was engaged in the commission of a felony, and that if the facts showing this to have been the case were too fully set forth, it was mere surplusage, for which the conviction would not be reversed.
    The plaintiff in error was indicted for murder in the first degree, the first count alleging that he killed the deceased while committing a burglary, the second, while committing a robbery, and the third, with deliberation and premeditation. The jury found a general verdict of guilty of murder in the first degree. Held, that the verdict should not be set aside as an inconsistent or improper one.
    The law requires no particular period for, or amount of deliberation, to constitute the crime of murder in the first degree; it is sufficient that deliberation, combined with the attempt to take life, existed in the case, and that the mortal blow or wound was given in consequence of it.
    Writ of error to tbe New York Court of Oyer and Terminer to review tbe conviction of tbe plaintiff in error, of murder in tbe first degree.

      Wm. F. Howe, for tbe plaintiff in error.

      Benj. K. Phelps, district attorney, for tbe defendants in error.
   Daniels, J.:

The indictment against the prisoner was found and presented by a grand j nry of the Court of General Sessions, at a term held on the first Monday of October, 1875. To this indictment, upon his arraignment, he interposed what was relied upon by him as a plea in abatement, by which he averred that the grand jury presenting the indictment against him was not lawfully created and organized. The same point has been previously before the court upon an application for a writ of error on the prisoner’s behalf, with a stay of proceedings; . and, upon the consideration then given to it, the court arrived at the conclusion, that it was not tenable, and, for that reason, overruled it, and denied the stay. That and a similar objection taken to the petit jurors drawn for the trial of the indictment, were the only grounds then urged, in the prisoner’s behalf for a stay Of execution of the judgment pronounced against him. But, after those objections were held to be unsupported, another application was made to a justice of this court for a writ of error, with a stay of proceedings, and other reasons were urged in its support, upon which it was allowed to be successful. The writ which was then issued has now been returned, and the prisoner’s counsel has, with much ingenuity and ability, again endeavored to maintain the validity of the objections previously overruled; and has presented other points upon which it has been insisted that the conviction of the prisoner should be reversed.

Under ordinary circumstances, the examination previously made of the points concerning the organization of the grand and petit juries should now be considered conclusive against any further discussion of them. But the gravity of the offense for which the prisoner has been convicted, and the importance of the objections presented, will supply a good reason for a further consideration of those points, and a departure from the rule which would ordinarily be observed in the disposition of objections once examined and decided. These objections are exceedingly important in their character. If they should prove well founded, in fact, and be allowed to prevail, as- maintained in law, they would, at once, arrest the administration of justice in both civil and criminal cases, so far as that depended upon the intervention of juries, either grand or petit. If they should be found to be well supported, no grand jury could be organized in the county of New York. No indictments could be found for crimes committed; and mo trials could take place upon indictments heretofore presented. A carnival of unrestrained crime would then be assured, that would be as shocking to contemplate as it would be destructive to the good order and security.of society. The calamity would be similar to that which could not fail to result from a complete abrogation of all criminal laws. For it would at once suspend their execution. Great care should be observed in official action, which might be attended with the development of such appalling consequences. And courts of justice could only be excused in tolerating them, for the most irresistible and controlling reasons. The objections taken should certainly be found to be most imperative in their nature, and undoubtedly supported by unanswerable reason's, before courts could yield to their control, for that would practically paralyze the arm of criminal justice. Have reasons of that nature been presented in support of these objections by the counsel for this prisoner ? If they have not they must be again overruled, for the public security should not be exposed to even doubtful peril, on insufficient grounds. The reasons assigned in support of the objections urged against the power of the grand jury to find and present the indictments, are contained in what was relied upon as a special plea. By that, it was alleged, in terms, that Douglas Taylor was the commissioner of jurors in the county of New York during the year 1875. As such, the statute made it his duty to select the petit jurors for the year ensuing after such selection. Of the jurors so selected lists were required to be made, and a copy certified and filed with the county clerk. (3 E. S. [5th ed.], 698, § 20.) And from the names on such lists not only were the petit jurors to be drawn, but the grand jurors were also required to be selected. The statute upon these subjects was enacted in clear and explicit terms. For the purpose of selecting the grand jurors a board was created, consisting of the mayor of the city, the presiding justice of the Supreme Court in this district, the chief justice of the Superior Court of the city, the first judge of the Court of Common Pleas, the Eecorder and City Judge of the City and County of Ne-w York. (Id., 700, § 32.) Four members of the board were required to constitute a quorum (§ 33), and it was to be attended by the commissioner of jurors, or in his absence by a clerk appointed by the board. To enable it to discharge its duties, the petit jury lists were required to be produced before the board. And from them it was to select not less than 600, nor more than 1,000 persons to serve as grand jurors. (Id., 701, § 35.) It is not averred, by the plea, that this duty was not faithfully and regularly performed by the board. But it is alleged that the commissioner of jurors named in the plea, did not attend before them, but was prevented from so doing by the duress of the County Clerk. There is clearly nothing in this objection, because the board were authorized to supply his absence by the appointment of a clerk, and the plea contains no' allegation that the board neglected to perform that duty. The important omission relied upon in the plea, was the failure to select the grand jurors from the petit jury lists made out by Douglas Taylor, as commissioner of jurors, and placing among the names selected for grand jurors, the names of persons who were not upon those petit jury lists, some of whom, it is averred, were upon the grand jury by which the indictment was found. This plea was demurred to, injudiciously, as it would seem, from the imperfect disclosure of the probable facts, and, as the demurrer was sustained, the facts well alleged in it must be acted upon as having been truly stated. ■ But, while the averment was made that the jury lists made out by Douglas Taylor, as commissioner of jurors, were not produced to the board for the selection from them of the grand jurors, it was not alleged that they had no lists whatever of the petit jurors before them when they selected the grand jurors. The law imperatively requires, that the board should have the petit jury lists before them, to enable them to select the names of grand jurors. Its duty could not be performed without them in some form. And yet the plea concedes that the board did select the names of persons who were on the petit jury lists, to serve as grand jurors. The objection is, that they were not wholly taken from the commissioner’s lists of petit jurors. This necessarily concedes that they were mainly taken from such lists, which could not have been done unless they had the lists, or copies of them, in some form before them. The presumption is that the board did its duty, and it could not. have done so, because it could not have legally acted at all without the petit jury lists. Neither could it have selected grand jurors from such lists unless they had been in some form produced. The substance of the allegations, when taken together with the implied concessions contained in the plea, is, that, though Taylor himself did not appear before the board, it still did, in some form, have lists of the petit jurors, but not all that were made by Taylor; and, in making the selection of the names of grand jurors, the board included the names of persons who were not on petit jury lists, as Taylor had made them out. That is all there is of this plea, in point of fact, which leaves it to be plainly inferred, from the action of the board, that its members had before them some jury list or lists not made out by Taylor, as commissioner, from which the names of grand jurors were selected, some of whom were on the panel that found this indictment. Consistently with the plea, the lists referred to may have been made out by some person acting under the irregular authority of Douglas Taylor, or by some person, for the time being, having possession of, and claiming to be, the incumbent of his office. It is hardly conceivable that any of the lists could have been otherwise made. And if they were not, that could not invalidate the action of the board in making its selections. It had the power to act from the lists produced before it, and that it did so is manifest from what is alleged in the plea to have been done by the board. Its action would not be a nullity, because the evidence was defective upon which it proceeded.

That consequence has been carefully guarded against by the language of the statute, which required a list of the persons selected by the board, to be signed by its members, certified by its clerk, and filed in the office of the clerk of the county (3 it. S. [5th ed.], 101, •§§ 35, 36). And as the plea did not allege the omission of either of those acts, their performance must be assumed from the force of the legal presumption that public officers perform their duty. From the lists so prepared and filed by the board the names were required to be taken and placed in a box, and from that the grand juries of the county were explicitly directed to be drawn. This action was to be taken wholly upon the lists prepared and filed by the board. The statute is imperative upon the subject, and it contains nothing that would warrant the officers drawing the grand jurors, or the court, before which they may be summoned, in going behind the •proceedings of the board for the purpose of nullifying the action of the grand jury after its formal organization. (Id., §§ 35, 38.) But, if that could be done, the objections presented by the plea were entirely insufficient to require that result in this case. It may be, as it was alleged, that the lists from which a portion of the grand jurors was selected were irregularly made, for irregularities in the performance of ministerial duties are not unfrequently encountered. But the validity of official conduct, on which the great, and some of the vital, interests of society are dependent, is not to be denied for that reason. No such result is required, either by the statute or the authorities, even if some lists of petit jurors, which were produced before the board, had been irregularly made, in or out of the commissioner’s office. It has not been claimed that any unfit or unqualified persons were selected and returned as grand jurors. The statute required that the board should select intelligent citizens of good character, and, so far as the board might be informed, possessed of the qualifications required of persons to serve as jurors for the trial of issues. (Id., § 35.) It has not been pretended that the board failed, in any respect, in the performance of that duty. And if it did not, then it is clear that the prisoner could not have been injured or prejudiced in the least, by the irregularity alleged in the lists from which the grand jurors were selected, and the grand jury was afterward formed. Bor that, as well as the other reasons assigned, the prisoner had no ground of complaint, and his plea was properly overruled. (Ferris v. People, 48 Barb., 18 ; 35 N. Y., 125; People v. Harriot, 3 Park., 112; Bennett v. Matthews, 40 How., 428, since affirmed on the opinion written by the General Term of the fourth department; Friery v. People, 2 Keyes, 424.)

The challenge made to the array of petit jurors, from which the jurors were drawn by whom the indictment was tried, has still less color of plausibility for its support; for it appears from the statement made, that the petit jury lists were made by a person in the office of commissioner of jurors, having possession and acting under color of an appointment to the office by the Mayor of the City of New York; and that was sufficient to render his acts valid so far as the prisoner and the public might be affected by them, as long as he continued to hold the office. Hpon the lists prepared and filed by him as the commissioner of jurors, the clerk was required, as he undoubtedly did, to prepare ballots and place them in a box, from which the jurors for the courts were afterward to be drawn. (3 R. S. [5th ed.], 698, §§ 20, 21.) And it cannot be that the proceeding could be rendered ineffectual by the fact that the Mayor had no power to make the appointment, even if that could be shown to be the case. His authority in that respect, could not be tried on a challenge to the array of jurors. If it could be, the same investigation might be required as to every officer through whose intervention jurors are to be selected, drawn and summoned, in every case to be tried ; which would render trials interminable and so obstruct the administration of the laws as to render them contemptible and useless. . This challenge was properly overruled.

After the indictment was presented it was, upon motion of the district attorney, ordered by the Court of General Sessions to be sent to the Court of Oyer and Terminer, held in and-for the county of New York, to be determined according to law.

The record produced shows these facts, and that the prisoner was arraigned upon it in the Court of Oyer and Terminer, on the 25th of October, 1875. His counsel now objects that this court had no jurisdiction over the case, because it does not appear by the record that the order was entered in the minutes of the Court of Sessions, and that it could only have sent the indictment to the next Court of Oyer and Terminer. As it does not appear that the order was not entered in the minutes of the Court of Sessions, that may now be presumed to have been done, from the fact that such an order was made. The objection should have been made, if it had any foundation whatever to stand upon, when the fact could have been shown, and the objection, probably, obviated by proof. It is too late to raise it now for the first time. It is also objected that the Court of Sessions could not transfer the indictment until the end of its term. But if the objection could be sustained, there is nothing in the record showing that it did that before the end of the term. The object of the statute was to provide for the speedy trial of indictments found, but not disposed of, in the Court of Sessions. For that reason it restrained the exercise of the power, to transfer to the next Court of Oyer and Terminer to be held in the County. Its object was to prevent delay, by accelerating the time for trial. (3 R. S. [5th ed.], 303, § 7.) And it was within the spirit of the enactment to send the case to the Court of Oyer and Terminer, even if it was at the time in session. What the Legislature meant by the terms used, was, the next court at which the indictment could be tried. The first court at which that might be done, and the court to which the transfer of this indictment was made, was a court of that description. Indeed, there is nothing in the record from which it can be supposed, that the term of Oyer and Terminer had commenced when the order was made for transferring the indictment. But if there was, it simply presented a case of irregularity, in the exercise of an authority which the Court of Sessions clearly possessed, which did not affect the jurisdiction of the Court of Oyer and Terminer. If there had been any thing in this objection it should have been presented to that court, when it might have been corrected. By failing to do that, and pleading-in abatement, and going to trial, it was clearly waived. (People v. Allen, 43 N. Y., 28, 31.)

The indictment, in the first count, charged the prisoner with the commission of the crime of burglary, by feloniously and burglariously breaking into the store of James H. Noe, having in it at the time goods, merchandise and valuable things for use, sale, and deposit, the property of James H. Noe, with the intent to steal, take and carry away the same. The facts alleged in -this portion of the indictment were sufficient to constitute the offense of burglary in the third degree. It was then charged that while the prisoner was engaged in the commission of that offense, he willfully and feloniously made an assault upon James H. Noe, by striking him upon the head with a piece of iron, and inflicting upon him a mortal wound, of which he afterward died; and that in that manner, while the prisoner was engaged in the commission of the burglary, he willfully and feloniously murdered and killed James H. Noe, against the form of the statute, etc.

The second count charged the prisoner with the commission of the crime of robbery, by assaulting James H. Noe, and against his will and by violence to his person, robbing him of and stealing his watch. It then proceeded in a similar form to the first count, and charged that while the prisoner was engaged in committing that offense, he willfully and feloniously assaulted James H. Noe with a piece of iron, and thereby inflicted a mortal wound upon his head, of which he afterward died. This count concluded as the other did, by charging the prisoner, upon those acts, with the crime of murder.

For the reason that these counts, by way of introduction to the charge of murder, alleged that the prisoner, at the time when the mortal blow was inflicted, was engaged in the commission of burglary, or robbery, or both offenses, they are objected to in his behalf, as bad for duplicity. And it is undoubtedly true, that the authorities are, as the counsel has claimed them to be, that two felonies cannot properly be alleged in one count of an indictment. But it was clearly not the purpose of the public prosecutor, or of the grand jury, to charge the prisoner with the commission of two distinct felonies, and try him for both under either count of the indictment. The charge against the prisoner was not burglary nor robbery, but the crime of murder; and if it had been committed by him at all, as the act was described in these counts, it was attributable to the circumstance that he was at the time engaged in the commission of another felony ; and that could only appear by setting forth such felony and connecting the act with it, which resulted in the homicide. There was no other way in which that could be done, than by first showing the prisoner to have been engaged in committing a felony, and' then charging that in the execution of the purpose to perpetrate that crime, he inflicted a mortal wound upon James H. Noe, which resulted in his death. The statute has been so framed as to require this combination of the felony with the mortal act, to create the crime of murder in the first degree, where death is not the result of deliberation and premeditation. The third class of cases enumerated and described by the statute now and at the time of this homicide, defining the offense of murder, characterizes the act as murder in the first degree, which produces the death of another, when it shall be inflicted by a person engaged in-the commission of any felony, even though it shall be unaccompanied with the design to take life. (Gen. Stats. N. Y., vol. 9, 698, § 1.) And it was evidently the design of the prosecution, by minutely setting out the burglary and robbery, to present a case against the prisoner under this provision. That could properly be done in no other way; for the law upon this subject as it has long been settled, is that “ an indictment upon a statute must state all such facts and circumstances as constitute the statute offense, so as to bring the party indicted precisely within the provisions of the statute.” If the statute is confined to certain classes of persons, or to acts done at some particular time or place, the indictment must show that the party indicted, and the time and place when the alleged criminal acts were perpetrated were such as to bring the supposed offense directly within the statute.” (People v. Allen, 5 Denio, 76, 79, 80.) Within this rule the counts objected to were properly framed, for in no other way, could the statutory offense have been described. If the burglary in the one case, or the robbery in the other, had not been charged, the homicide would have been clearly reduced below the grade of murder in the first degree, although the means and act of killing remained the same. It possibly may be true that more was stated than was strictly necessary, though that is not intended to be affirmed as to these counts. But if that be true, the prisoner was in no way injured by this degree of particularity. It was rather a benefit to him, because it gave him a more ample and complete description of the offense charged to have been perpetrated by him, and in that way afforded him a better opportunity for making his defense. It was no legal objection to the indictment that the crime was described more fully than the law required it to be done; mere surplusage presents no legal cause for the reversal of a conviction. (Lohman v. People, 1 Comst., 379, 383.)

By the bill of exceptions, claimed to be irregularly before this court, two exceptions were taken by the prisoner’s counsel to the refusal of the court to charge certain requests made by him. One was abandoned at the argument, and therefore need not be further referred to. The other requested the learned justice — whose very clear and able charge has been returned in the case- — to instruct the jury that no conviction could be had for murder in the first degree under the first count of the indictment. This was declined, and the counsel for the prisoner excepted. It has not been claimed that the evidence, which is not before the court, was insufficient to justify the jury in concluding that the prisoner took the life of James H. Noe while he was engaged in the commission of the burglary, as charged in that count; but that the count itself was bad because the burglary was alleged in it. That point requires no farther consideration than it has already received. It cannot be sustained; and the instruction was properly refused. "When the prisoner’s plea in abatement was overruled, he declined to plead to the indictment, and the court, as was its duty under the statute, ordered the plea of not guilty to be entered; and the trial proceeded upon such a traverse of the indictment. The formal entry of the plea is sufficiently shown by the record, which states the direction of the court, and also shows the formal trial of the prisoner upon the assumption of the existence of that plea in the case. Every advantage was secured to him, which he could possibly have desired from the most formal statement and entry of this plea.

It is further objected that no similiter was added on the part of the prosecution, by which the people placed themselves upon the country, as the plea of not guilty did the prisoner. That was the merest matter of form imaginable, and its omission could not prejudice the prisoner as long as his trial was had precisely the same as though this formal proceeding had been observed. These formal objections have all been removed by the statute, which, after providing that no indictment shall be deemed invalid, or the judgment, or other proceedings affected, by reason of certain enumerated omissions contains the general provision which deprives the prisoner of the right to rely on any other defect or imperfection in matters of form, which shall not tend to his prejudice. (3 E. S. [5th ed.], 1019, 1020, § 54, sub. 4.)

The jury rendered a verdict of guilty of murder in the first degree, as charged in the indictment. And as one count charged the prisoner with that crime, because he took the life of his victim while committing a burglary, the second while committing a robbery, and the third with deliberation and premeditation, the verdict is objected to as an inconsistent and improper one. But as it was neither impossible nor improbable, that the prisoner ivas committing both burglary and robbery when he inflicted the mortal blow, and at that time was actuated by a deliberate and premeditated purpose to take life, the verdict cannot be held to be necessarily inconsistent with the indictment. The prisoner may very well have been guilty of all the charges contained in these three counts, when he inflicted the mortal wound upon the deceased \ for he may have been engaged in both burglary and robbery, with a deliberate and premeditated design to take the life of the person resisting him in the execution of those felonies. The law requires no particular period for, or amount of deliberation to constitute the crime of murder in the first degree, even when the nature of the offense depends wholly upon the existence of that circumstance. It is sufficient that the fact of deliberation existed in the case, combined with the intent to take life, and that the mortal blow or wound was given in consequence of that intention and deliberation, and for the purpose of executing such intention. What the law has required is, that both deliberation and premeditation shall precede the act of taking life, and that the act shall execute the purpose so formed. And that may very well have been the nature of the prisoner’s act, while he was at the same time engaged in the commission of the burglary and robbery, charged in the indictment, for the purpose of making out the existence of the offense under the other provision of the statute.

But if the first and second.counts, for any reason, cannot be sustained, even then the conviction .was perfectly good under the third count; against which no objection whatever has been made. And, for the purpose of sustaining the judgment, the verdict may properly be applied to that count. (Guenther v. People, 24 N. Y., 100.)

After a very full examination of the points presented in the prisoner’s behalf, it is quite dear that no error has been established in the case. But one duty has, therefore, been left to the court, and that is to affirm the judgment and remit the case to the Court of Oyer and Terminer, to designate the day for its execution, and carry the same into effect.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


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    JOHN B. DOLAN, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Olm'k of grand juries in city of New York — ■ojfker of county government — chapter 588 0/1871.
    The clerk of the grand juries of the Courts of Oyer and Terminer, and General Sessions, in the county of New York, is an officer of the county government within the meaning of that term as used in chapter 583 of 1871, authorizing the board of apportionment thereby created “ to regulate all salaries of officers and employes of the city and county government.”

      Quin v. The Mayor (44 How., 266); Landon v. The Mayor (49 id., 218) distinguished.
    Appeal from a judgment recovered on the dismissal of the plaintiff’s complaint at the Circuit.

      Briggs da Fellows, for the appellant.

      Chas. P. Miller, for the respondent.
   Daniels, J.:

The plaintiff was appointed clerk of the grand juries of the Courts of Oyer and Terminer and General Sessions, in the county of New York, about the 1st of April, 1869, and held and discharged the duties of that position until the 28th day of February, 1873, when he was discharged by the district attorney. Ey section 1 of the act to make further provision for the government of the county of New York, which was passed, and went into effect on the 26th of April, 1870, his salary from the first of the preceding month of January was fixed at the sum of $3,000 per annum (vol. 1, Laws of 1870, 878); and that salary was paid to him from that time to the 1st day of July, 1871.

On the 19th of April, 1871, another act to make provision for the local government of the city and county of New York was passed and went into effect, by which the Mayor and Comptroller of the city, the Commissioner of public works, and the President of the department of public parks, were created a board of apportionment, having power “ to regulate all salaries of officers and employes of the city and county government.” (Yol. 2, Laws of 1871, 1270, § 3.) And this board, on the 19th of June, 1871, reduced the plaintiff’s salary to the sum of $1,500 per annum, at which rate he was paid after the 1st of July, 1871, when the resolution making the reduction went into effect. After his dismissal from the employment the plaintiff commenced this action to recover the difference between the amount fixed by the act of 1870, and that to which his salary was reduced by the board of apportionment. In support of the right to maintain it, reliance has been placed upon the cases of Quin v. The Mayor (44 How., 266); Landon v. The Mayor (49 id., 218; 39 Superior Ct., 467); and Whitmore v. The Mayor, unreported. The first of these cases was that of a justice of one of the District Courts, and the others were prosecuted by a clerk and deputy clerk of the same courts. Those actions were sustained, because the persons suing were held to hold their offices under the judicial system of the State, and were not, for that reason, officers of the City or County of New York, within the signification of those terms, as they were used in the act of 1871. But the case of the plaintiff is very clearly distinguishable from those, in the circumstance that his position does not seem to have been an office in any appropriate sense of that term. But if it was, there seems to be good reason for holding it to have been an office of the county government. By statute the District Courts of the city of New York were made a portion of the judicial system of the State, and the district attorney was made an officer of the same system. (1 R. S. [5th ed.], 579, 580.) But the clerk of grand juries has been nowhere designated or declared to be such an officer. The employment appears to have been provided for by a resolution of the board of supervisors of the county, adopted in 1863. (Yol. 1, Hoffman’s Laws, 411.) And the act of 1870, which advanced the salary, to the sum of $3,000, could not have constitutionally contained that provision unless it had been an employment under the government of the county. That was an act whose subject was required to be expressed in its title, and that was declared to be to make provision for the government of the County of New York. If the plaintiff did not hold his position under the government of the county, the provision increasing his salary to $3,000 was unauthorized in that act, under the prohibition of the Constitution relating to local acts. If he is right in that respect his salary was not constitutionally increased, and he cannot, consequently, complain of its reduction. But if it was properly advanced, it was because he was employed under the government of the county, and it could, for that reason, be incidentally done in an act to make provision for the county government. That must have been considered by the legislature that passed the act of 1870 to have been the character of the employment, and therefore a proper subject for legislation in an act providing for the county government. And it was clearly right in taking that.view of the case. The employment was solely under the authority of the county, and that may be presumed to have been known to the legislature from the circumstance, that its remuneration was made a part of the subject of the act making provision for the.county government. And, as it was within the power of the legislature to increase the plaintiff’s compensation, as it did, in an act expressly passed to make provision for the local government of the county, it necessarily had the power to provide for'its reduction in a similar act passed in 1871. That such was the intention of the last act clearly appears from its terms, for it was made to include, without exception, the salaries of all officers and employes of the city and county government. The plaintiff was one of those persons, and for that reason liable to be affected by the authority given to the board of apportionment in the reduction of the compensation previously fixed for his services. It so far qualified the preceding law of 1870 as to render the continuance of his salary subject to the action of. that board. Both acts were special and local in their character, and, so far as the latter included the same subject-matter as the former, it superseded or repealed it by implication. (Mongeon v. People, 55 N. Y., 613.) The last act is not open to the objection made that it was an attempt to transfer the power of legislation to the board of apportionment. Nothing of that kind was designed. The second act so far modified the one preceding it as to deprive the plaintiff of an absolute right to the salary previously fixed, by rendering it dependent upon the future action of that board. And that could be done without encountering any constitutional objection. By both the acts together the plaintiff was entitled to the continued payment of the salary of $3,000, only so long as the amount remained unchanged by the action of the board of apportionment. And there was nothing invalid or unusual in such a legislative provision; similar laws have been frequently made and observed without the least objection being suggested concerning their validity.

After the board acted under the authority given to it, by reducing the salary to the sum of $1,500, the plaintiff had no lawful right to any greater compensation. That amount he received before this action was commenced. For that reason his complaint 'was properly dismissed at the Circuit, and the judgment recovered by the defendant should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


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    JAMES KELLY, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.
    Larceny— Obtaining money by false pretenses — -when prisoner!' not discharged from custody.

    To procure the possession of property by an artifice or trick, with a felonious design, the title of the owner remaining unchanged, is larceny; but if the owner is deceived into the surrender of the title, as well as the possession of his property, by means of fraudulent representations, then the offense is that of obtaining money by false pretenses.
    Accordingly, where the plaintiff in error induced the complainant to loan him fifty dollars, upon depositing with him certain spurious pieces in the form and similitude of gold coin, and which he represented to be gold coin, the intention being that he should use the money to buy liquors, which, however, he did not do, but absconded with the money, held,' that he was not guilty of larceny.

      field, further, that the plaintiff in error should not be discharged from custody, but should be detained until a new trial could be had, if further evidence could be procured by the prosecuting officer, or until an opportunity might be afforded to the grand jury to find another indictment against him.
    "Writ of error to tbe New York Court of General Sessions, to review the conviction of the plaintiff in error of the crime of grand larceny.

      This prisoner was indicted for grand larceny in stealing fifty dollars from one William Boss, and was tried at the General Sessions on the twenty-sixth of November. The testimony showed that the complainant, being employed upon a steamer running to Florida, was met by the prisoner on the day the steamer sailed. The prisoner professed to be a passenger upon the same steamer, and asked the complainant’s assistance to bring some bottles on board the vessel. The complainant accompanied him to get the bottles. The prisoner showed the complainant some pieces of what appeared to be gold coin; asked the complainant to lend him some money, saying: “ I will give you these,” and said that he wanted the money to purchase some bottles of liquor in a saloon, in front of which they stood ; asked the complainant to wait for him while he went in and made the purchase; and having thus obtained fifty dollars of the complainant’s money, he asked the complainant to wait for him while he went into the saloon, promising to return in five minutes. He entered the saloon and slipped out of the back door and made his escape, leaving the complainant to wait for him. He never returned, but was discovered by the complainant in the street, subsequently, and arrested. Lie was convicted of grand larceny, and now brings his writ- of error to this court to review the conviction.

      William F. Ki/ntzvng, for the plaintiff in error.
    The prosecutor parted not only with possession of the money, but also with the property in it; therefore it was not larceny. It is not larceny if the owner of personal property intends to part with the property and delivers the possession absolutely, although he has been induced to part with it by fraudulent means. (Hildebrand v. The People, 56 N. Y., 396; Pex v. Hwnt, 8 Cox’s Crim. Cas., 495 ; Boscoe’s Crim. Ev. [7th ed.], 626-636; Smith v. The People, N.Y., 111; Weymw>% v. The People, 11 S. C. [4 Hun], 511; Wilson v. The People, 39 N. Y., 360; Lewer v. Comm., 15 Serg. & Bawle, 93; 2 East PI. Cr., 668, and cases cited; Whart. Am. Crim. Law [5th rev. ed.], 1780; Arch. Crim. Pldgs. 895 ; Com. v., James, 2 B. & IT. Ldg. Cr. Cas. [2d rev. ed.], 181,' 204; Bhmt v. Com., 4 Leigh, 689; Pex v. Jaeltson, 1 Moody Cr. Cas., 119 ; Mowery v. Walsh, 8 Cow., 238; Regua v. Barnes, 2 Den. Cr. Cas., 59; Peg.
      y. Thomas, 9 Carr. & Payne, 741; Reg. v. Adams, 1 Den. Cr. Cas., 38; Rex v. Adams, R&jss & Ky. C. C., 225; 2 Russ, on Crimes [6th. ed.], 35.)

      Benj. K. Phelps, district attorney, for the defendants in error.
   Daniels, J.:

The indictment was for the crime of grand larceny, committed by stealing circulating currency. The facts attending the commission of the offense were shown by the evidence of the complaining witness. From that it appears that, at the solicitation of the prisoner, he loaned him fifty dollars in bills, upon receiving from him fraudulent and spurious pieces in the form and similitude of gold coin, and represented to be gold coin by the prisoner. They were five in number, and supposed by the witness, who could not read, to be gold coin. The prisoner represented that he would not sell them unless he received a premium of fifty cents on the dollar, and applied for the bills to purchase some bottles of liquor to take upon the ship, on which he represented himself to be a passenger, and on which the witness was employed as a hand. It was clearly the design of the witness that the bills should be advanced as a loan on the security of the pieces he supposed to be genuine gold coin, and that the prisoner should be at liberty to use them in the purchase of the bottles of liquor. That use he did not make of them, but after entering the place where he stated the liquor was to be bought, he at once disappeared by leaving it through a rear door. Upon the facts proved, no room existed for doubting that the prisoner intended to defraud the witness of his property. Every statement made by him was false, and he justly deserved all the consequences which have followed his offense. But, however guilty he may have been of crime, in procuring and converting to his own use the money of the complaining witness, he could not for that reason be indicted and convicted of a different crime from the one he committed. When the bills were delivered, it was the owner’s intention that they should become the property of the prisoner, who received them. Those bills were not to be returned, but others afterward were, for the purpose of discharging the debt created by the loan. The title passed from the owner of the bills with his consent; procured, it is true, by fraudulent representations. That did not constitute the crime of larceny, but that of obtaining money by false pretenses. The distinction between the offenses, although a narrow, is still a material, one. When the possession of property is procured by artifice or trick, with a felonious design, while the title of the owner remains unchanged, a case of larceny will be made out. But if the owner is deceived into the surrender of the title, as well as the possession, of his property, by means of fraudulent representations, then the offense will not be one of larceny, but of false pretenses. (Weyman v. People, 11 N. Y. Sup. Ct. [4 Hun], 511; Regina v. Thomas, 9 Car. & P., 741 [38 Eng. C. L., 429]; Smith v. People, 53 N. Y., 111.) According to these rules and authorities, the prisoner could not properly be convicted of larceny, in receiving and appropriating to his own use the property of the complaining witness, under the circumstances disclosed by the evidence. His offense was that of obtaining money by false pretenses, and with that he should be charged, unless it can be made to appear, that it was not intended that the prisoner should become the owner of the bills at the time when he received them. He is not entitled to be discharged from custody because he has been tried for an offense not committed by him, and the case of McCord v. People (46 N. Y., 470), secures him no such right. According to the evidence he has probably been guilty of an offense for which he may yet be indicted and tried, and he should be detained in custody until a further trial of the present indictment can be secured, in case further and different evidence may be within the power of the prosecution, on which that can properly be done, or until an opportunity may be afforded of presenting the case to another grand jury, and he can be placed upon trial for obtaining money by false pretenses, if an indictment for that offense shall be presented. The present and only disposition now required to be made by this court, is that the judgment should be reversed and a new trial directed.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial directed.


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    In the Matter of the Application of MARY ELIZABETH JACKSON, an Infant, for Leave to Sell her Real Estate.

      Sale of infant's real estate — mistake as to extent of interest — remedy of purchaser.

    Upon an application, by an infant for leave to sell real estate, it was stated in tlie petition that she was entitled to an undivided one-half part of the land, subject to the dower of her mother, and the referee so found and reported. In pursuance of an order of the court all the right, title and interest of the infant were sold. After the sale, and while the fund was still in court, the purchaser applied to have a portion of the purchase-money refunded to him, on the ground that it appeared that the infant was only entitled to an undivided one-third of the land. Held, that the application should be granted; that the statements contained in the petition and report, were representations upon which the purchaser was entitled to rely, and when they were shown to be erroneous, a court of equity would interpose, for the reason that the contract was entered into through a mutual mistake of fact.
    Appeal by Henry S. Hewson from an order denying his application for compensation, for a partial failure of title to the land . purchased by him in these proceedings. The order appealed from was made on the report of a referee to whom it was referred to take proof of the facts.

      8. V. JR. Cooper, for the appellant.

      John Townshend, guardian, in person.
   Daniels, J.:

The petition by which application was made for leave to sell the infant’s land contained the statement that, as heir at law of Lewis Jackson, she was entitled to an undivided one-half part of the land in fee, subject to the right of dower of his widow, which it was proposed by the proceedings to sell. And the referee, to whom the reference was made to ascertain the truth of the petition, found and reported that to be the interest of the infant in the land. This was equivalent to a representation to whoever might become the purchaser in the proceedings, that the interest proposed to be sold was an undivided half of the land subject to the widow’s estate in dower. The object of requiring the statement of the interest of the infant, and in part that of the reference, is to have it known and judicially ascertained, what it is which may be offered for sale and sold in the proceeding. The practice does not contemplate the sale of an undefined estate, consisting merely of the right and interest of the infant in the land, whatever that may in the end turn out to be. But of an alleged and ascertained interest, as accurately as that may be practical, from the averments and description of the petition, and the proofs taken upon the reference. And the sale is finally made of the estate, as all the title and interest of the infant in the land, with the understanding that it has been correctly ascertained in the proceeding. TJpon that basis the guardian contracts to sell, and the buyer agrees to purchase. If the estate turns out to be materially different, the representation contained in the proceeding proves to be untrue, and the case of a mutual mistake of fact is presented.

That was the manner in which the purchase in the present instance was made. Both the guardian and the purchaser treated for it as the interest described in the petition, and mentioned in the report of the referee. And the price paid was graduated and controlled by that statement of the estate to be sold. Both parties assumed the fact to be as the petition averred it, and the referee reported it, and acted upon the truth of that supposition. But that afterward' appeared to be a mistake. Another claimant appeared in the person of G-eorgianna S. Jones, as one of the heirs of Lewis Jackson, who, in an action for the recovery of the possession of her interest in the land, established her right against the grantee of the purchaser, under the proceedings taken for leave to sell the land, to an estate of an equal undivided third of it. And that reduced the interest from an undivided one-half to an undivided one-third, which was sold and conveyed in those proceedings. For the purchase-money paid for the difference between those interests the purchaser received nothing, and for that reason, and because it was believed, at the time of the sale, that the interest was truly described as an undivided half, he made his application for compensation from the purchase-price paid by him, which still remains in and under the control of the court.

This was resisted by the guardian, and finally denied, for the reason that the interest sold and conveyed was simply the right and title of the infant in the land. But, while that was the description which was given in the conveyance of the subject that was sold, it had still been preceded by the representation that the interest was an undivided half of the land, subject to an estate in dower. And it was that interest which the guardian was directed to sell and convey, and that the purchaser designed to pay for and acquire. For all the purposes of the contract and the deed, that was the right, title and interest of the infant in the land, and what was intended to be understood in the use of those terms; and, by means of that understanding, the purchaser was induced to pay one-third more, by way of purchase-price, than would otherwise have been required from him upon an accurate knowledge of the true state of the title. That resulted from a misrepresentation of the extent of the interest of the infant, concerning which the parties were involved in a mutual, as well as a material mistake. And that, under the well settled principles of courts of equity, entitled the purchaser to redress, so far as he had received nothing for the purchase-money paid by him. “ The general rule is, that an act done, or contract made, under a mistake, or ignorance of a material fact, is voidable and relievable in equity.” And if one of the parties innocently misrepresents a material fact, by mistake, it is equally conclusive, for it operates as a surprise and imposition upon the other party.” (1 Story’s Eq. Jur. [11th ed.], §§ 140, 147, 193, 944, and cases cited.) These rules are quite well settled, and the applicant presented a case entitling him to the benefit of them. In Cann v. Cann (3 Simons, 447), such relief was given to a purchaser of property under proceedings of the Court of Chancery. And the same thing was done in the case of Cooper v. Cooper (4 Irish Ch., 75). The ease of Raynor v. Selmes (52 N. Y., 579), also supports the same conclusion. Upon the referee’s report, there was no dispute as to the amount which should be returned to the purchaser if he was entitled to reimbursement for the partial failure of his title. That he was so entitled is reasonably free from doubt, upon the facts shown in support of his application. And if he cannot secure such redress in this proceeding he will be deprived of all remedy, because no action for that purpose can be maintained on any thing contained in the deed. The order made should be reversed, and an order entered confirming the referee’s report; and directing the amount found to be equitably due to the purchaser to be reimbursed to him, with interest, but, under the circumstances of the case, without costs.

Davis, P. J., and Brady, J., concurred.

Order reversed; referee’s report confirmed, but without costs.