text:
    MARY E. MARYOTT, Plaintiff and Appellant, v. BENJAMIN C. THAYER, Defendant and Respondent.
    REFERENCE—COMPULSORY—OF ALL THE ISSUES.
    I. Answer, mat be founded on averments contained in. a. In an action on contact where the answer seis up an affirmative defense or defenses, by way of counter-claim or otherwise, involving the examination of a long account, all the issues a/re referable,

      Although

    the cause of action set forth in the complaint is non-ref enable.

    Before Monell, Ch. J., Freedman and Sedgwick, JJ.

      Decided June 7, 1875.
    Appeal from an order of reference.
    The action was to recover a sum of money received by the defendant to the plaintiff’s use.

      The complaint alleged the recovery of a judgment in an action in which the defendant, an attorney at law, was the plaintiff’s attorney; an assignment of the judgment to the plaintiff in this action, and the collection of it by the defendant.
    The defendant, as separate defenses or counterclaims, or set-offs, alleged the advancing and paying out of money, and the performing of labor and services, aggregating a large number of items.
    Upon the pleadings, and an affidavit that the trial will require the examination of these numerous items, a motion was made to refer the trial of the action.
    The plaintiff did not deny that the items constituting the alleged counter-claim or set-off were numerous.
    The motion was granted, and the plaintiff appealed.

      Albert Stickney, for appellant.

      B. C. Thayer, in person, for respondent.
   By the Court.—Monell, Ch. J.

Among the cases where the court is authorized to direct a reference is where the trial of an issue of fact shall require the examination of a long account on either side ” (Code, § 271, sub. 1). Under this provision it was held, in some cases, that the court could refer all the issues, if any one of them required the examination of a long account, notwithstanding that as to such other issues the parties had an absolute right of trial by jury (see Whittaker v. De Fosse, 7 Bosw. 678; Batchelor v. Albany City Insurance Company, 1 Sweeny, 346). But recent decisions of this court have somewhat restricted the power and confined it to cases where all the causes of action set forth in the complaint were referable. Thus in Evans v. Kalbfleish (36 Superior Ct. 450), one cause of action was on a special contract, which did not involve the examination of any account. A second cause of action was for work, labor, and services, the trial of which would require the examination of a long account. It was held the whole action could not be referred. A similar decision was made in Ross v. Combes (37 Superior Ct. 289).

These decisions conflict with the former adjudications only in respect to the power of the court to refer all the issues when some only are referable. But they do not affect the question involved in this appeal.

The plaintiff’s only cause of action is upon contract. Its trial will not require the examination of any account. It is, therefore, not referable.

But the defendant has interposed a counter-claim or set-off, embracing a large number of items, which will require to be examined on the trial.

We are concluded by the decision of the special term, that the trial will require the examination of a long account, within the meaning of the code (Ronalds v. Mechanics’ National Bank, 37 Superior Ct. 208; Hossack v. Heyerdahl, 38 Id. 391), leaving the only question, whether the court can direct a reference of all the issues, when only those presented by the defendant’s counter-claim or set-off are referable. Very nearly this precise question was presented in Kain v. Delano (11 Abb. N. S. 29). The plaintiff’s cause of action was a single item. The answer alleged a counter-claim, which, the plaintiff’s moving affidavit averred, would require the examination of a long account. The court of appeals reversed the order directing a reference of the whole action, on the ground that the proof before the court below was insufficient to show that a long account would be required to be examined. But the power to refer in such a case is, I think, fully recognized by the court. They say (p. 36), “ The defendants do not allege or set up any counterclaim, or any defense, resting upon or calling for the examination of an account between the parties to the action. As new matter, there is set up by way of defense a single transaction.”

There is a dictum in Welsh v. Darragh (52 N. Y. 590, 592), which determines the referability of an action by the complaint; and that if the plaintiff’s cause of action is on contract, the answer of the defendant can not make it non-referable, although it may set up a recoupment or counter-claim, of which by itself he would have the right of trial by jury.

To allow a reference of an entire action, where the only referable issue is upon an independent cause of action set up by a defendant as a counter-claim, would seem to effectually deprive a plaintiff of the right of trying Ms cause of action by jury. A right which was recognized and enforced in Townsend v. Hendricks (40 How. Pr. 143).

But, perhaps, the code can not be differently construed. It says an account “ on either side,” which is broad enough to allow of a reference of the defendant’s issues, when the plaintiff’s action is upon contract, although in itself not referable.

Until the court of appeals recedes from what we think is decided in Kain v. Delano (supra), we must adopt that as the law.

The order must be affirmed, with costs.

Freedman and Sedgwick, JJ., concurred.


source: Caselaw Access Project

author: Freedman, J. By the Court.—Morell, Ch. J. Curtis, J. (dissenting).

license: Public Domain

text:
    MICHAEL L. DOYLE, et al., Plaintiffs and Appellants, v. SAMUEL LORD, et al., Defendants and Respondents.
    LESSOR AND LESSEE.
    I. Windows—light and alb.

      a. Bight of lessee and lessor in respect of.

    1. Where a building having windows overlooking vacant prem ises owned by the lessor is demised, “ with the appurtenances,” by a lease containing only a covenant for quiet enjoyment, the lessee acquires no right as against the lessor, or those claiming under him, to have the windows remain unobstructed for the passage of light and air, or any other purpose.
    1. Such a right does not pass under the clause, “ with the appurtenances. ’ ’

    1. This, although the vacant premises are situate in the rear of the building and hare erected on them a primy (constituting what is ordinarily termed a yard), it appearing that the lessee had no right to the use of the privy, nor of access thereto.
    1. Consequently the lessor, or those claiming under him, are at liberty to place an erection on such vacant premises, although the effect is to entirely obstruct the windows of the demised house which overlooks the vacant premises,
    i. What facts do not affect these rights.

    These rights are not affected by the facts :
    That the lessor had covenanted to put iron bars in the windows; had for a valuable consideration granted to an adjoining owner the privilege to put windows in his building looking into the rear premises, and had covenanted not to obstruct such windows; that the lessee was restricted by the demise to him, to using the demised premises for a particular business, for which business the light from the windows was highly desirable and beneficial, the sales largely depending on it; that the lessor had subsequently leased the vacant premises to the party who was putting up the'erection complained of, making such subsequent lease subject to the prior one, and providing in the subsequent lease that the lessee therein should not interfere "with the lessee in the prior lease, in the occupation of the premises thereby demised.
    .ANCIENT LIGHTS.
    I. English doctrine of, does not obtain in the State of New York.
    Before Monell, Ch. J., Curtis, and Speir, JJ.

      Decided June 7, 1875.
    Appeal from a judgment.
    In July, 1870, Ann Gillett (the owner) leased to the plaintiff “all that store on the first floor, known as Ho. 85 Forsyth street, in the city of Hew York, to be occupied by them as a dry goods store, with the appurtenances, for the term of five years from May 1, 1871.” The lease contains a covenant of peaceable and quiet enjoyment.
    The width of the store was twenty-five feet, and its depth fifty-one feet. There was an open space in the Tear nineteen feet deep and of the width of the store. Under some parol agreement between the lessor and the plaintiffs, the lessor, before executing the lease caused a door and part of the windows in the rear wall of the store, and opening or looking upon the aforesaid space, to be closed, except leaving a space of about two feet in the upper part of the windows, which the plaintiffs barred with iron bars, leaving no means of access from the store to the space in the rear; but the upper part of the windows furnished light to the -rear of the store.
    The open space in the rear of the store was part of a lot or space of nineteen feet wide and fifty feet deep, extending across the rear of the plaintiff’s lot and the lot adjoining on Forsyth street, and was also owned by Mrs. Gillett.
    On May 1, 1874, Mrs. Gillett leased for a term of ten years the whole of the lot, nineteen feet wide and fifty feet deep, above mentioned, to the defendants. This lease covers the open space in the rear of the plaintiffs store.
    It is alleged that the defendants are about to erect upon said lot a building covering nearly the whole thereof, which will so obstruct the light and exclude the air from the rear of the plaintiffs store, as to be an irreparable injury.
    . The action was tried by the court without a jury. There was some evidence on the part of the plaintiffs, which it was claimed established some right to the use of, and a corresponding right of access to, a privy in the space in the rear of the store. But the defendants fully negatived any such right.
    It was also proved that in 1873 the plaintiffs, for the purpose of obtaining a greater amount of light, had enlarged the rear windows of the store. But it was done without any “ authority, license, right, or privilege from the lessor.”
    The court dismissed the complaint, and the plaintiffs appealed.
   The following opinion was delivered at special term :

Freedman, J.

Plaintiffs’ claim to relief rests wholly upon the lease by Ann Grillett of the store on the first floor of Ho. 85 Forsyth street.

This lease did not carry with it an implied covenant against the obstruction of the windows in the rear of the store. The statute (1 Rev. Stat., Edm. Ed, 689, § 140) is explicit that no covenant shall be implied in any conveyance of real estate—and a lease is a conveyance within the definition of that term contained in the statute. The only exception that has ever been recognized by the courts is that the grantor or lessor is held to warrant, by implication, that he has title. In all other respects the rule of caveat emptor applies (Canaday v. Stiger, 3 Jones and Sp. 423; affirmed 55 N. Y. 452).

Nor did the lease carry with it, as apart of the thing actually demised, the right in the store to derive light and air from the lessor’s adjoining land. Myers v. Gremmel (10 Barb. 537), and Palmer v. Wetmore (2 Sandf. 316), are conclusive upon me upon this branch of the case. In this connection it may be pointed out that the English doctrine of prescriptive right to ancient lights (which rests wholly upon implied covenants in deeds), though recognized in some of the United States, has been expressly repudiated in this state in Parker v. Foote (19 Wend. 318). It was held to be inapplicable to the growing cities and villages of this country. This case has been followed in Pierre v. Ferwals (26 Me. 436), Napier v. Bulwinkle (5 Richard 99), and Cherry v. Steir (11 Md. 1).

In Massachusetts, the doctrine, if it ever was recognized, was changed by positive enactment.

Nor did the lease grant the yard or any right therein as appurtenances. I agree with the learned judge who denied the motion for an injunction, that the premises are virtually described as bounded by the four walls of the store.

The lease, therefore, carried nothing beyond the boundary as an appurtenance, except, perhaps, such rights as were clearly and absolutely necessary to the enjoyment of the demised premises in any way; as, for instance, a right of way to the premises, if such right were necessary to obtain access. But the strict necessity and location of such a right must be shown by extrinsic evidence. Now, instead of its being shown that it was necessary, or that it was the intention of the parties that a right to the use of the yard should pass to the plaintiffs, it does appear that, at the request of the plaintiffs themselves, all access to the yard from the store was effectually cut off at or before the commencement of their term.

For these reasons, the erection by the defendants of a building within about two feet and eight inches of the rear of the wall of the said store, does not entitle the plaintiffs to the relief prayed for. They should have protected themselves by an express covenant.

The defendants are entitled to judgment dismissing the complaint, with costs.

Francis Byrne, attorney, and A. J. Vanderpoel, of counsel for appellants, urged :—I. Mrs. Gfillett being the owner of the two lots, Nos. 83 and 85 Forsyth street, and having erected the two houses thereon, and being still such owner when she leased respectively to the plaintiffs and to the defendants (by separate demises), the rights of the parties are to be regarded as to the apparent condition of the property. There was a yard, a privy on the same, and two windows in the rear of the store demised to plaintiffs. Consequently the plaintiffs are entitled to light and air, as they then existed. “ The lights are an essential and necessary parts of a house” (Palmer v. Fletcher, 1 Levinz, 122; Robbins v. Barnes, Hobart, 131; Nicholas v. Chamberlain, Cro. Jac. 121; Cox v. Matthews, Ventris, 237; Riviere v. Bower, Ryan & Moody, 24; Compton v. Richards, 1 Price, 27; Coutts v. Graham, 1 Moody & Malk., 396; Story v. Odin, 12 Mass. 157; Peyton v. the Mayor, &c., of London, 9 Barn. & Cress. 725). All the above are cited with approbation in Lampman v. Milks (21 N. Y. 505), and the English law, as to lights, and easements, servitudes, &c., established where the houses have been erected or are owned by the same proprietor. It is there stated, that the decision of Parker v. Foote (19 Wend. 309), as to “the first portion of the rule laid down,” &c„ “has no bearing upon the doctrine, that if a man builds a house, at the same time owning both the site of the house and the adjoining land, and then sells the house, neither he nor his grantees can afterwards build upon the vacant ground so as to obstruct the windows of the house.” The following cases — The New Ipswich Factory v. Batcheldor (3 N. H. 190); The United States v. Appleton (1 Sumner, 492)—are likewise approved therein. In Myres v. Gemmel (10 Barb. 543), the court refers to the adaptation of buildings on adjoining lands for light and air, &c.

II. Light and air, and the right to go into the yard, were easements and appurtenances, &c. (Browning et al. v. Dalesme, 3 Sand. S. C. 13, a case between tenants in the same building, as to right to use of hatch and hoist-way, and of passage and light).

III. The windows as existing, and the yard were “ apparent,’’ and so the plaintiff’s rights were to be respected (Butterworth v. Crawford, 46 N. Y. 349, which was a case of two lots and a privy built on the line and a drain from it through one lot under ground). See also Huttmeir v. Albro (18 N. Y. 48, an easement as to a rear alleyway). “It is a general rule that upon a conveyance of land, whatever is in use for it as an incident or appurtenance passes with it,” at p. 51, Voorhees v. Burchard (55 N. Y. 98). A grant of land (a mill site) by metes and bounds carried with it a mill yard adjoining as appurtenant (Marvin v. Brewster Iron Mining Co., 55 N. Y. 549, 550, and 561; and Washburn's Easements and Servitudes, 3 Ed. 37, &c., Willard on Real Estate, &c., 218, &c.).

IV. The defendants took title from Mrs. Gillett upon a covenant “that the changes they should make ” shall not interfere with “ Doyle and Adolphi.”

V. The plaintiffs fully proved their case, and the ' court assumed “ that there was an interruption of the light and air by the acts of the defendants, as stated in the complaint, and that the plaintiffs had various witnesses in court to prove such allegations,” therefore, the relief claimed should have been granted, and the motion to dismiss the complaint denied. The case of Canaday v. Stiger (55 N. Y. 452), cited by the learned Justice Freedman, as authority to sustain his views, seems to be against him, and in fact supports the plaintiff’s view. At page 454, Chief-Judge Church says r “ The parties are presumed to have been on the ground,, and known the condition of the house and the state of its completion.”

VI. If Mrs. Gillett desired to .change the legal effect of the demise, and the rights thereunder, she should-have reserved a privilege by agreement to build upon the yard, and to close up the windows. The mere fact that plaintiffs did not use the privy, did not prevent them from doing so; they did not surrender or part with any of their rights.

T. D. Pelton, attorney and of counsel for respondents, urged as to the matters discussed and decided:—I. The plaintiffs are not entitled to relief, upon the ground that the defendants’ occupation will interfere with the light and air flowing through their windows. There is-no authority in this state to support the plaintiffs, and they must rely upon the English doctrine in relation to-the obstruction of light and air. By that doctrine, and in the absence of express grant or covenant, the right to unobstructed lights may be established in two ways. (1) By prescription—as when one’s windows have-overlooked his neighbors unoccupied land for twenty years. Although we are not directly concerned with this branch, for the paintiffs have occupied but four years, yet it should be noted that the doctrine of “ancient lights” has been expressly repudiated in-this state, and held inapplicable to the growing cities and villages of this country (Parker v. Foote, 19 Wend. 316; Radcliffe v. The Mayor, 4 Coms. 195). (3) By implied covenant against obstruction, as where one conveys his house with windows overlooking his adjoining land (Saddon v. Senate, 13 East. 79; Pomfort v. Ricroft, 1 Saund. 322, 4 Kent’s Com. 473). (a.) There can be no express or implied grant of light and air. They are common blessings, not subject of limitation, and can not be granted (Parker v. Foote, supra, 315; Cross v. Lewis, 2 Barn. & Cress. 628 Washburn on Real Property, 2d vol. 3d ed. 317; Moore v. Rawson, 3 Barn. & Cress. 340). (1) It follows that the plaintiffs must rely upon the second branch of the doctrine, or upon an implied covenant against the obstruction of light and air. (2) ISTo covenant can be implied from the lease to the plaintiffs (1 Rev. Stat. Edmond’s ed. § 140, p. 689; The Mayor v. Mabie, 13 N. Y. 155; Kinney v. Watts, 14 Wend. 38).

II. There was no demise of a right to the plaintiffs to derive light and air from the adjoining premises or rear lot. Such a right can not exist in this case without the implication of covenants. A grant can not be extended by implication (Grant v. Chase, 17 Mass. 441, 3 Cruise Dig. 47, art. 51. (1) The question presented here has been fully considered, and decided adversely to the plaintiff’s claim, in Myers v. Gemmel, (10 Barb. 537, 546); Palmer v. Wetmore (2 Sand. 316). The facts presented in these cases are so completely analogous to the present, that nothing can be added to their effect, (a) These cases have been recognized and approved by the court of appeals in Johnson v. Oppenheim (55 N. Y. 293); Washburn on Real Property, 313. (b) The same doctrine, declared upon analogous facts, is found in Collier v. Pierce (7 Gray, 18); Heverstick v. Sipe (33 Penn. 368); Mullen v. Stricker (19 Ohio 135); Morrison v. Marquand (34 Iowa, 35).

III. (1) The opinion of Judge Selden in Lampman v. Milk (21 N. Y.), is not an authority. The matter there discussed was not before the court, nor was the point essential to the decision of the case. The opinion is an obiter and not a precedent. “ A precedent in law is a decision arrived at by a competent tribunal after a pertinent inquiry upon the points bearing upon the subject discussed” (Moloney v. Dows, 8 Abb. 321; Cohens v. Virginia, 6 Wheat. 264 and 299; 1 Bishop on Criminal Procedure, Sec. 1031-1033).

IV. The plaintiffs are not entitled to relief in this action, upon the ground that the defendants have removed the privies from, and occupied the premises in the rear yard. (1) That yard, with its privies, was not appurtenant to the store. The premises are clearly described, to wit: “ all that store on the first floor, &c., to be occupied by them as a dry goods store, with the appurtenances.” There is no pretense that the privies, or use of the yard, was (like a right of way) necessary to the enjoyment of the store. Plaintiffs had privies on other premises, (a) The premises granted are clearly defined in the deed, and are limited to the four walls of the store. The premises described in a deed can not be enlarged by the word “appurtenances ” (Grant v. Chase, 17 Mass. 441; Manning v. Smith, 6 Conn. 291; 3 Cruise Dig. 272), (b) There can be no presumption that the lease carried with it anything beyond the premises described. As the yard and privies were not within the description, the plaintiff’s right to use them can only be established by evidence that the parties contemplated and understood that such right should pass to the plaintiff as incidental to the premises (Phillips on Ev. C. & H. page 1403, note 956; 1 Greenleaf on Ev. 286; Carry v. Thompson, 1 Daly, 35). “Whether a thing not specifically described in the deed is a parcel or not of the thing demised, is always a matter of evidence” (Buller, J. in Doe v. Burt, 1 Term Rep., 704). (c) The facts show that it was not intended by the parties that a right to use the yard and privies should pass to the plaintiffs.

Mr. Pelton also made, with others, the following point: The defendants had occupied the yard and removed the privies before the commencement of this action; the court will not restrain the defendants by injunction from doing an act already done ; but leave the plaintiffs to their remedy at law, which is ample (Bean v. Coleman, 44 N. H. 547); and also points as to the effect of the alteration.of the windows by the lessee.

By the Court.—Morell, Ch. J.

The decision of this case rests, I think, solely upon the construction, force, and effect of the lease from Ann GHJlett to the plaintiffs.

I am unable to discover anything in the extraneous or cotemporaneous facts or circumstances, which creates, enlarges, or varies the rights of the tenants. Whatever they acquired was under and in pursuance of their lease. If there was any parol understanding, it was before the lease was signed, and can not, therefore, be allowed to vary or contradict the terms of the lease. ISTor can any right be derived from the former occupancy, or the designed present use of the building. In both cases, doubtless, light and air were essential to its beneficial use and enjoyment; and the destruction or interruption of either, may seriously impair the habitability of the structure.

But light and air, however free and of common right, are not so inherent in a demise, that the lessor must absolutely protect his lessee in the free and uninterrupted enjoyment of them. The right maybe secured by express contract, and the tenant may protect himself, by making the lease terminable upon the happening of any substantial interference by the landlord, or those under him, with the use of these essential and desirable elements. But the law implies no such right and imposes no such obligation.

There is no express covenant in the plaintiff’s lease which covers the right they claim. The only covenant is of quiet and peaceable enjoyment, which is broken only by actual, or possibly constructive eviction, and is always satisfied by damages.

The case rests, therefore, as has been already said, upon the quantum of interest the plaintiffs took under their lease. And for the purpose of examining the question, it may be treated as if the threatened obstruction was by Mrs. Grillett, and not by her tenants.

And it here may be said, that there is nothing in the letting to the defendants, which creates or recognizes any right in the plaintiffs, other than such as may be fairly im plied from their, lease.

It is well settled that the English law as to lights has not been adopted in this country (Parker v. Foote, 19 Wend. 309; Auburn, &c., Plank Road Co. v. Douglass, 9 N. Y. 447).

There is, therefore, no prescription growing out of a long user, which gives a right to a continued and uninterrupted use of light; and unless it passes to a tenant, as an incident or appurtenant to his lease, the law will not restrain the landlord from occupying or improving the adjacent space, even though such occupancy may impair or totally destroy, the beneficial use of the tenant’s property.

This may seem harsh doctrine ; but the rights, duties, and obligations of parties are governed by well-settled principles of law, and by the application of such principles their rights must be determined. If such principles do not afford sufficient, protection, it is always in the power of parties to protect themselves by express contract.

The plaintiff’s lease was of the store within its four walls. It did not cover any right to the use of any adjacent space, for any purpose whatever. Light is not an appurtenant, in the sense that it legally appertains to and is a part of the principal thing. If ancient lights are not protected in this country, even where the use has continued and been uninterrupted for a long period of time, how can a tenant whose use of the light begins only with his term claim such protection ? His landlord does not engage that he shall have any more than is specified. What he does not express, can not be implied, unless the law implies it. And implications of an obligation on the part of a lessor in his lease, except that the tenant shall quietly enjoy, can not be made.

The case of Palmer v. Wetmore, in this court (2 Sandf. 316), determined this question. The action was upon the covenant to pay rent. The defense an eviction.

The plaintiff owned several lots, one of which he demised to the defendant. He afterwards built on some of the other lots, and the building obstructed the light in the defendant’s windows. Oakley, Ch. J., says,—"where there is no question of ancientlight, the owner of a lot adjoining a house may so improve or build upon his lot, as to shut up the windows of such house that are situated in the end or side adjacent to his lot. We see no reason why a landlord, in respect to his tenant, is more restricted as to his vacant lots than he' would be in respect to any other owner, for years or in fee, of an adjacent house.”

That decision ha.s not been authoritatively disturbed, and the principle has been frequently recognized and affirmed (Banks v. Am. Tract So. 4 Sandf. Ch. 438, 464; Mahan v. Brown, 13 Wend. 261; Picard v. Collins, 23 Barb. 445, 458).

It is not necessary in this case, to go to the extent to which the doctrine is carried in Palmer v. Wetmore. There the payment of rent was resisted on the ground of a constructive eviction by reason of the obstruction of light to the demised premises. That, if any, was the tenant’s remedy ; or, if there was any breach of a covenant, express or implied, he might have sued for damages.

But a remedy at law does not give a remedy in equity ; on the contrary it destroys the right to go into equity, except where the injury is irreparable for damages.

There is a dictum in Lampman v. Milks (21 N. Y. 512), where the learned judge refuses to recognize Parker v. Foote (ubi sup.), as bearing upon the doctrine, “ that if a man builds a house, and at the same time owning both the site of the house and the adjoining land, and then sells the house, neither he nor his grantees can afterwards build upon the vacant ground, so as to obstruct the windows of the house.” But the learned judge did not refer to Meyers v. Gemmel (10 Barb. 537), nor to Palmer v. Wetmore (ubi sup.), both of which cases are cited with approval in the much more recent case of Johnson v. Openheim (55 N. Y. 293), where the court says, ‘‘the mere building upon or other improvement of the adjoining lot, by which the premises of the defendants were rendered less commodious of occupation, or less suitable to the uses of the defendants, did not affect the right of the plaintiff to their rent, or authorize the defendants to terminate the lease and abandon the premises.”

The dictum in Lampman v. Milks was obiter. The action was for diverting a water-course, and involved the question of servitudes and easements passing under a deed, and not rights which at most rest upon prescription.

Upon the whole, I am of the opinion, that this case was decided correctly at the special term. There was nothing expressed in the written lease, or that could legally be implied from it, nor in the relation of the parties, that gave to the plaintiff such an absolute right to the use of light to the demised premises, as, if he was deprived of it by their lessor or his grantees, would constitute a cause of action.

It follows, therefore, that there has been no threatened illegal interference with or obstruction of such light, so as to furnish a status to the plaintiffs to seek the restraining power of the court to prevent it.

The judgment should be affirmed, with costs.

Speir, J., concurred.

Curtis, J. (dissenting).

In 1859, Ann Gillett conveyed to Samuel Lord thirty feet in depth the rear part of lots Hos. 83 and 85 Forsyth street. These two lots were adjacent, and twenty-five feet each in width, and one hundred feet deep. The fronts were occupied by two five-story buildings, fifty-one feet in depth, the upper stories used as tenements, and the first stories as stores or tenements. In the rear of these, there was left a yard nineteen feet in depth, which Ann Gillett in 1859 covenanted with Samuel Lord not to obstruct within the space of ten feet for twenty years, granting him the privilege of windows, &c.

In 1870, Ann Gillett leased to the plaintiffs, “all that store on the first floor of the building known as No. 85 Forsyth street, in the city of Hew York, to be occupied by them as a dry-goods store, with the appurtenances,” for the term of five years from May 1, 1871. May 1, 1874, Ann Gillett leased to the defendants the two houses and lots, Hos. 83 and 85 Forsyth street, for the term of ten years, subject to the lease to the plaintiffs, and with the provision that any change made by them for business purposes should not interfere with the plaintiffs in the occupation under the lease to them.

Previous to the letting of the store, No. 85 Forsyth street, by Ann Gillett to the plaintiffs, the first floor was partitioned in the middle, the front part being used as a store; and the rear part, which was divided by partitions into two rooms, was used as a residence. There were two windows in the rear wall, about three by six feet in size, and a door between them leading into the yard in the rear, where there were privies. There was another door opening from the “floor” into a hallway, which led from the front entrance to the yard.

The plaintiffs agreed to hire the store upon conditions : that the partition should be taken out; that the doors leading into the rear yard and hall should be closed up ; and the rear windows be bricked up about three feet, and the remainder be barred by six or eight iron bars. These changes’were made before the plaintiffs’ lease commenced.

The plaintiffs never had any means of access to the yard, except by going into the street, and thence through the hall. They never had keys to, and never used, the privies. They had water-closets elsewhere. In 1873, the plaintiffs, without consent of the landlord, enlarged the rear windows to about five by eight feet, their present size. This was prior to the lease of Ann Grillett to the defendants. Since the execution of the lease from Ann Grillett to the defendants of May 1, 1874, the latter have erected a wall within three feet of the rear of the plaintiffs’ store, about twenty feet high, and extending about four feet above the top of the plaintiffs’ rear windows. There is room between the wall and windows for the plaintiffs’ shutters to swing. The wall is painted white.

The evidence showed that this wall obstructed the light flowing through the present windows, and injured plaintiffs’ business.

The object of the action is to restrain the defendants from erecting the wall, and from occupying the yard to the exclusion of the plaintiffs.

The plaintiffs insist that they have the right to the full and unrestricted enjoyment of the light and air flowing into the store, to the extent that they had before the defendants obstructed it, and also the right of access to the yard, and that the defendants should be enjoined from proceeding with the building.

The complaint was dismissed at the trial, and the plaintiffs excepted.

It is unnecessary to consider the evidence as to whether the plaintiffs were interfered with by the defendants, as complained of, in respect to light and air, as the learned judge at the trial stated, that for the purpose of hearing the motion to dimiss the complaint, he would “assume that there was an interruption of the light and air by the acts of the defendants, as stated in the complaint, and that the plaintiffs had various witnesses in court to prove such allegations.”

The plaintiff Doyle testified: “I did not exercise the right to visit the water-closet, because we had water-closets in the Grand street store. ’ ’ The evidence showed that the latter were in plaintiffs’ adjoining premises, and that there were water-closets in the rear of the yard of IsTo. 85 Forsyth street.

The first question for consideration is, what construction is to be given to the lease from Ann Gillett to the plaintiffs. The premises leased are therein described as “All that store on the first floor of the building known as ISTo. 85 Forsyth street, &c., to be occupied by them as a dry goods store, with the appurtenances.” The store with the appurtenances is distinctly demised, and the character of the occupation of it carefully designated.

In addition to what is expressed in the lease, there is other written evidence of the intention of the parties, as to what was to be enjoyed with the store. In the agreement of Ann Gillett of July 27, 1870, produced in evidence by the plaintiffs, she binds herself “ to cut a doorway in brick wall, and brick up present back door, and put iron bars in the two rear windows.” This agreement was carried into effect. It clearly manifests an intention that the plaintiffs should have the enjoyment of these windows looking into the yard, and that moreover she would place iron bars there to protect them in such enjoyment from any trespasses, incident to the open nature of the yard, and by the change of the door another means of access was to be created. It is evident she knew these windows, with their incidents of light and air, were elements of value in the occupancy and letting of her store, from her having leased to Samuel Lord in 1859, for two hundred dollars, the right for twenty years to place windows in his building looking into this very yard, which she also-covenanted not to be obstruct.

This shows that she knew, when she undertook to protect these windows as a condition of the plaintiff’s taking the store, that their use without obstruction was-valuable, and that she intended it to pass with the store to the plaintiffs under the lease. Again, if her lease to the defendants of May 1,1874, is referred to, embracing-the premises in question, and under which the defendants claim, it will be seen that she not only makes it subject to the plaintiffs’ lease, but also provides that the defendants shall not interfere with the plaintiffs in the occupation under the lease to them. The evidence is, that the year previous to the lease to defendants, the-plaintiffs had very much enlarged the rear windows, and increased their capacity for light and air, to that extent modifying the nature of their occupancy.

From all these instruments which are to be considered together, it is apparent, that it was the intention of the lessor that the plaintiffs should have the right to the use of the rear windows, and access to the yard, without obstruction or interference. The written evidence shows the enjoyment of these rights and incidents was in the contemplation and intention of both parties at the time.

It is shown that the light from these windows is-highly desirable and beneficial, and necessary for a dry goods store, that being the occupancy of the prem•ises, to which the plaintiffs were limited by the terms of their lease, and that their sales largely depended upon it. It can not be presumed that the plaintiffs were ignorant of its value when they took from their lessor an agreement specially providing for the protection of these windows. If the yard and windows were incident and appurtenant to the premises, can there be any question that they passed to the plaintiffs under the description of the store “ with the appurtenances,” as stated in their lease ? It is urged by the defendants, that the plaintiffs did not use the yard. They used it so far as it was an auxiliary to the enjoyment of the windows looking into it; they derived light and air from it, and if they did not use the water-closets, it was a preference which did not affect their legal rights in ■respect to the privileges of the yard.

From Bucher v. Sandford (Gouldsborough R. 99, Anno, 30 Eliz.) to Voorhees v. Burchard (55 N. Y. 98), and Marvin v. Brewster Iron Mining Co. (Id. 538), the courts have been constantly called on to construe what passes by the words cum pertinentus. It was early held that a curtilage or court-yard is parcel of the house and passes with it, because its use is a necessity (Curden v. Track, Croke Eliz. 89). A late jurist says, “ If a house or store be conveyed, everything passes which belongs to, and is in use for it, as an incident or appurtenance” (4 Kent Com. 467). He also again says, “That the right to the enjoyment of free and pure air, as incident to the estate, is likewise under the protection of the law ” (3 Kent Com. 448).

These definitions seem broad enough to embrace the rear windows and yard, and the tendency of the decisions is rather to enlarge than to restrict their scope.

In Huttemeyer v. Albro (18 N. Y. 50), it is said by Strong J., “The easement will exist for the common benefit, &c., if it is apparent from the conveyances and the circumstances connected with the manner of the use and enjoyment of the land, that such was the intention of the parties.”

When anything is granted, access, and all else necessary for its full and free enjoyment, passes as an incident appurtenant (Comstock v. Johnson, 46 N. Y. 620; Voorhees v. Burchard, 55 N. Y. 103; Marvin v. Brewster Iron M. Co. Id. 549; Browning v. Delesme, 3 Sandf. 18).

Having arrived at the conclusion that the lease to the plaintiffs must be construed to pass, as appurtenances to the store, the rear windows and the unobstructed flow to them of light and air from the yard, as it was at the time of the demise, and also the right of access, and that the defendants’ title was subject to the occupancy of the plaintiffs, under their lease, of the yard as it then was, it becomes unnecessary to consider most of the remaining questions presented on the argument. Whether an implied covenant for quiet enjoyment exists in the lease to the plaintiffs, and what application should, be given in this case to the maxim, Cujus est solum, ejus est usque ad cesium, and what rule prevails as to ancient lights are among them. Nor do the cases of Palmer v. Wetmore (2 Sandf, 316), and Myers v. Gemmel (10 Barb. 537), seem relevant in this point of view, for they are instances where the landlord built on adjoining lots and not upon any part of the demised premises. Neither does the question arise to be necessarily passed upon, as to the effect upon the first conveyance of a severance by the common owner, upon the holders of the two portions, in respect to any open and visible servitude or benefit affecting their respective parts by him previously created.

Under this construction of the case as to what passed by the words, “ with the appurtenances,” it would seem that the plaintiffs were entitled to the injunction they moved for.

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


author: By the Court.—Monell, Ch. J.

text:
    FIRST NATIONAL BANK OF PORTLAND, MAINE, Plaintiff and Respondent, v. GARRET L. SCHUYLER, et al., Defendants and Appellants.
    I. BILL OF EXCHANGE.
    1. Acceptance, accommodation after discount of.
    1. Liability of acceptor.

      a. The acceptor is liable to the party who, in good faith and for value, discounted the bill before its acceptance.
    1. Knowledge. This, although such party knew it was t* be accepted for the accommodation of the drawer.
    3. Evidence fob plaintiff in an action on such acceptance.
    1. Previous transactions.—Credit.

    Evidence of previous similar transactions between the parties, that plaintiff in discounting the bill relied chiefly on its being accepted by the drawee, and that the plaintiff at the time of discount had no knowledge that it was not drawn in the usual course of business, is proper, if not necessary, as tending to show plaintiff to be a bona fide holder for value.
    H. EVIDENCE.
    1. Questions.

      a. What not objectionable, as calling for a conclusion of law, or for evidence beyond the Jmowledge of witness.

    Before Monell, Ch. J., Freedman and Sedgwick, JJ„

      Decided June 7, 1875.
    - Appeal from a judgment.

      The action was to recover against the defendants as the acceptors of a bill of exchange.
    The defendants alleged that their acceptance was without consideration and for the accommodation of the drawer; and that the plaintiffs received it with knowledge that it was an accommodation acceptance, and entirely upon the credit of the drawers ; and that the plaintiffs paid no consideration therefor, and are not the lawful or bona fide owners.
    The bill of exchange was drawn at Portland, by R. Holyoke, upon the defendants in Mew YorJc. Before acceptance it was discounted for Holyoke by the plaintiffs, and by them sent to New York for acceptance, and was there accepted by the defendants. There had been many previous similar transactions between Holyoke and the bank, in which they discounted the drafts before acceptance; all of which had been accepted and paid by the defendants.
    The plaintiff’s president was examined upon a commission, and the defendants objected severally to the following interrogatories:
    “ State whether the plaintiff, by any or either of its officers or agents, or either of them, before discounting said draft, had any knowledge or information that the same was not drawn in the regular course, or that the same was accepted by the defendants without consideration, or for the accommodation of the drawer thereof; state what, if any, knowledge or information the plaintiff’s officers or agents had in respect thereto.”
    “State whether the plaintiff had previously discounted the drafts of R. Holyoke, accepted or endorsed by these defendants; if yea, when, to what amount, and whether the same was paid by the defendants at maturity.”
    “Upon what credit did the plaintiff chiefly rely in discounting the drafts in suit, and why ? ”
    The first interrogatory was objected to on the grounds: 1st, that it is leading; 2d, that it calls for a conclusion of law ; 3d, that it calls for evidence necessarily beyond the knowledge of the witness.
    The seventh interrogatory was objected to as calling for immaterial evidence.
    The eight interrogatory was objected to on the grounds: 1st, that it calls for a conclusion of law ; 2d, that it calls for something beyond the knowledge of the witness.
    The objections were overruled, and the defendants excepted.
    In answer to the interrogatories the witness stated, that the plaintiffs had no knowledge or information, that the bill was not drawn in the usual or regular course ; or that the acceptance was without consideration or for the accommodation of the drawer. That the bank had previously discounted drafts drawn in the same manner, which were subsequently accepted and paid by the defendants; and that in discounting the bill, the plaintiffs relied chiefly upon the defendants, as acceptors, for the reason that all the previous bills had been paid by them.
    One of the defendants was examined as a witness. Evidence of the time of acceptance, and that it was after the discount, that the acceptance was without consideration and for the accommodation of the drawers, was objected to by the plaintiffs, and excluded by the court
    The defendants excepted.
    The court directed a verdict for the plaintiffs. The defendants excepted and appealed from the judgment.

      F. G. Smedley, attorney and of counsel for appellants, on the points noticed by the court in its opinion, urged:
    I. The interrogatories objected to were objectionable on each of the grounds urged by defendants, and should have been disallowed. The last one was especially objectionable. The question as to what credit is relied on in a transaction is always incompetent (See Merritt v. Briggs, 11 Alb. Law J., 273, in commission of appeals). In the case at bar it is a conclusion of law that plaintiff relied on credit of B. Holyoke (Farmers’ & Mechanics’ Bank v. Empire Stone Dressing Co., 5 Bosw. 275, on page 290).
    II. The court below erred in excluding the evidence offered by defendants as to want of consideration for the acceptance. The plaintiff was not, as against the defendants, a bona fide holder for value of the bill in suit. The plaintiff was the party with whom the contract of acceptance was made, and it being made without consideration, the plaintiff can not recover from defendants (Farmers’ & Mechanics’ Bank v. E. Stone Dressing Co., supra). The evidence offered, if uncontradicted, would have entitled defendants to a dismissal of the complaint under the authority last cited.

      Chase, Bestow & Holt, attorneys, and Philo Chase, of counsel for respondent, urged on the points noticed by the court in the opinion:
    I. The court properly excluded the testimony offered by the defendants. It was entirely immaterial whether the draft was accepted before or after being discounted by the plaintiff, or what consideration there was for the acceptance, or whether the draft was accepted for accommodation, and without consideration. The defendants, in their answer, admit their acceptance of the draft. The defendants proved by Grould, the cashier of the bank, that Holyoke, the drawer, applied to the bank to discount the draft; that the application was referred to the board: of directors ; that the bank then discounted the draft, and paid Holyoke the full amount thereof, less the bank discount, and placed the amouht paid to his credit in his account with the bank, and which he subsequently drew out. Here was proof given by the defendants themselves that the plaintiff discounted the draft in the regular course of business, and paid full consideration therefor. The plaintiff took the draft upon the assurance of Holyoke that he had drawn the draft against lumber shipped by him to the defendants. The plaintiff discounted the draft in anticipation of its acceptance by the defendants. They had accepted a,nd paid all the previous drafts drawn against them by Holyoke, discounted by the plaintiff, under similar circumstances. They accepted the draft in question. The plaintiff had every reason to believe they would pay this as they had paid the others.
    II. It was no defense to this action that the defendants were accommodation acceptors (Grant v. Ellicott, 7 Wend. 227; Grandin v. Le Roy, 2 Paige, 509; Redfield & Bigelow on Notes and Bills, 216; Edwards on Bills, 430; Chitty on Bills, 81). It is an elementary principle that an accommodation acceptor is liable to a bona fide holder for value, though the latter have notice of the accommodation (Story on Bills, §§ 191-253; Chitty on Bills, 305). The evidence offered was immaterial, and properly excluded by the court.
    III. It was no defense to this action if the defendants did accept the draft after it was discounted by the plaintiff (Commercial Bank of Lake Erie v. Norton, 1 Hill, 507; Mechanics’ Bank v. Livingston, 33 Barb. 458; The Bank of Louisville v. Ellery, 34 Barb. 633; Williams v. Winans, 2 Green's Rep. [N. J.], 339).
    IY. The mere matter of time, when the note is signed or bill is accepted, in such case, is immaterial. The act of signing or accepting relates back to the delivery of the note or bill (Mechanics’ Bank v. Livingston, supra; Story on Bills. § 201; Chitty on Bills, 8th. Am. Ed. 263).
    Y. There was sufficient consideration for the acceptance of the bill by the defendants. The acceptance itself implied consideration (Mechanics’ Bank v. Livingston; The Bank of Louisville v. Ellery, supra, and cases cited). There was sufficient consideration in the forbearance of the plaintiff to resort to the drawer, as it would have done in case of non-acceptance by the defendants.
   By the Court.—Monell, Ch. J.

The evidence was uncontradicted that the plaintiffs discounted the bill of exchange for the drawer in the regular and usual way, that it was subsequently accepted by the defendants without qualification, and that it had not been paid.

This left no question for the jury; and if upon the undisputed facts the plaintiff can recover, then the verdict must be upheld.

The plaintiffs were undoubtedly the bona fide owners of the bill. An accommodation acceptor of such a bill becomes liable to the holder, even though the holder knew the acceptance was without consideration (Story on Bills, §§ 191, 253).

The time of the acceptance is not material, and may as well be after as before it passes to the holder (Mechanics’ Bank v. Livingston, 33 Barb. 459, 465, which was a case in all respect like the one before us. And see Bank of Louisville v. Ellery, 34 Barb. 630, and Commercial Bank v. Norton, 1 Hill, 501, 508).

The circumstance that the bill had not been accepted when it was discounted by the plaintiffs, rendered it proper, if nob actually necessary, for them to show that they had paid value for it; and having shown that, it constituted them bona fide holders, and shut out any defense of want of consideration between the drawer and acceptors. Hence the evidence to prove the manner of the plaintiffs becoming the holders of the bill, objected to by the defendant, was properly allowed to be given. Until acceptance, the legal relianee of the plaintiffs was upon the drawer. But hav- „ ing paid value for the bill, the subsequent acceptance by the drawees, whether voluntary and for the accommodation of the drawer, or otherwise, enured.to the plaintiffs, and constituted it a legal liability of the defendants.

For these reasons the evidence offered by the defendants was wholly immaterial, and was properly excluded. That the acceptance was without consideration, and for the accommodation of the drawer of the bill, constituted no defense to an action by these plaintiffs, even though it had been shown that they had discounted the bill with knowledge of those facts. They had become bona fide holders, and that was enough to exclude the defense.

The direction to the jury was correct, and the judgment entered upon their verdict should be affirmed.

Freedman, and Sedgwick, JJ., concurred.


author: By the Court.—Mowell, Ch. J.

text:
    JAMES KEMPLE, Plaintiff and Respondent, v. JOHN DARROW, et al., Defendants and Appellants.
    L CONTRACT SILENT AS TO TIME OF PERFORMANCE.
    1. Requires some act of the parties, such as an offer or demand to limit the time.

      Until

    such act the contract continues open for performance.

      But

    upon the doing of such act by one party, the other is bound to respond by performing the covenants to be by him performed on the doing of such act. If he fails so to respond, he is guilty of a breach of .the contract, and liable therefor.

    n. REFEREE’S FINDINGS.
    1. What necessary for purposes of appeal.
    1, A party who deems certain facts as essential to his case, must procure the referee to either find or refuse to find them.

      a. If the facts as claimed to exist are not found, the general term can not assume them to exist; and if there is no refusal to find them, the court can not loolc into the testimony to see whether there is any evidence to support them, or whether the referee ought to have found them.
    1. A general finding can not be affected by any evidence of a particular fact, which the referee has neither found nor refused to find.
    EXAMPLE. A defendant agreed to furnish a plaintiff with certain materials, in such numbers and amounts as might be required. The referee found generally that defendant had failed to perform,

      Held,

    that, whatever evidence there was wnich it was claimed established that, by the agreement between the parties, the material was all to be delivered within a certain time, and that plaintiff would not permit a delivery within that time, but had improperly delayed and obstructed defend.ant, so that he could not make delivery within the time, and had refused to allow delivery to be made when he was ready to do so, neither the claimed fact that the time of performance was limited by the contract, nor tiie evidence which it was claimed supported it, could be considered, the referee having neither found nor refused to find specifically on such claimed particular fact,
    in. COSTS OF APPEAL.
    1. When not allowed to either party.

      a. Will not be when the judgment below lias for too much, and plaintiff on discovering the error offered, soon after the appeal, to make the proper reduction.

    Before Monell, Ch. J., Freed mar and Sedgwick, JJ.

      Decided June 7, 1875.
    Appeal from the judgment of a referee.
    The action was to recover damages for the breach of a written contract for the delivery of materials for budding. The plaintiff alleged the non-delivery, and claimed to recover the difference between the market and contract price.
    The answer averred that the materials were to be delivered before the commencement of the next ensuing winter; that the plaintiff neglected to proceed with the work, and would not permit the defendants to make the delivery within the time aforesaid ; and that he so improperly delayed the erection of the building, and so obstructed the defendants, that they could not make the delivery of such materials, and had refused to allow the delivery to be made when the defendants were ready to do so.
    The action was tried by a referee who found as facts :
    That under the agreement, the defendants delivered to the plaintiff certain materials mentioned therein, but notwithstanding that the plaintiff fully did and performed all the terms and conditions of the agreement on his part to be done and performed, the defendants from the middle of December, 1871, neglected and refused to deliver to plaintiff such materials in numbers and amounts as required under said agreement up to January 20, 1872 ; and on and from that day forth, defendants have wholly failed and refused to deliver to plaintiff any such materials whatever.
    That at the time of such neglect, failure, and refusal, such materials were largely appreciating in market value, and in consequence of such neglect, failure, and refusal, the plaintiff was compelled to purchase, and did purchase for the building of said school-house, from other persons than the defendants, and at prices largely in excess of the prices agreed in and under the agreement to be paid therefor to the defendants, certain building materials, and was compelled to pay, and did pay, for the delivery thereof, and for cartage for the same ; and that he paid for said materials in excess of what he was required to pay under the contract, and for carting the same, the sum of eighteen hundred and forty-nine dollars and forty-nine cents.
    That such materials so purchased from other persons than defendants, were fairly and reasonably worth the sums paid therefor by the plaintiff, and the sums paid for carting the same were fair and reasonable.
    The defendants excepted to the several findings of fact.
    No exception was taken to the admission or exclusion of evidence: nor was the referee requested to find any facts, other than such as were found by him.
    The defendants appealed from the judgment.
    After the appeal was taken, an error in the computation of the referee was discovered amounting to five hundred and thirty-nine dollars and twenty-four cents. Whereupon the plaintiff and respondent gave to the defendants and appellants a written stipulation to deduct that sum from the judgment.

      The stipulation was produced upon the argument of the appeal.

      Townsend & Mahan, attorneys; and H. P. Townsend, of counsel for appellants.

      B. P. Kernan, attorney; and J. A. McCaffery, of counsel for respondent.
   By the Court.—Mowell, Ch. J.

The contract was silent as to the time of delivery, and either party could have limited the time by a demand or offer. Omitting to so limit the time, it was a continuing contract, until rescinded by the failure of the defendants to perform.

There was some evidence tending to show some intention or understanding of the parties, that the material was to be delivered before the close of the current year; but it was not of a nature to so limit the time as to excuse a performance afterwards.

The referee has made no finding on that subject. His general finding is, that the plaintiffs have, and that the defendants have not performed the contract. He was not requested to find that the time for the delivery of the materials had by parol been fixed by the parties; and there is no exception by the defendants that will enable them to insist now that the evidence would have warranted such a finding.

The court in reviewing a referee’s judgment can look only at his findings of fact, and if they are sustained by the evidence, the judgment must be affirmed (Anderson v. West, 38 Superior Court Reports, 441).

To raise any other question, there must be a refusal to find.

That presents a question of law which may be examined by the appellate court (Meacham v. Burke, 54 N. Y. 217).

The presumption is that the referee has not alone found all the facts necessary to support his conclusions-of law, but that he has also found all the facts warranted or sustained by the evidence. And if it is claimed that there are other or further facts which there is evidence to support, the attention of the referee must be directed to it. If it is not, the court will not, as was said in Mosher v. Hotchkiss (3 Keyes, 161), explore the evidence to ascertain whether there are not other facts which might have been found, and if found, would have authorized a discussion of the questions now for the first time suggested.

And therefore it is that all the presumptions are, that the findings are in harmony with the conclusions upon all questions, when the evidence is capable of that construction (Morgan v. Mulligan, 50 N. Y. 665).

The general finding, therefore, that the defendants had failed to perform their contract with the plaintiff, is not affected by any evidence which it might have been claimed limited the time of delivery.

Throwing all that evidence, as we must, out of view, it was clearly established that the time of performance was not fixed or limited ; and that until it was fixed, the plaintiff could demand performance. It was also established that he did demand performance, and that performance was refused.

The remaining question is one of damages.

The rule adopted by the referee was correct; viz., the difference between the contract price and the fair market value of the materials.

The error in allowing cartage as part of the damages, was discovered by the respondent soon after the appeal was taken, and he offered to deduct the amount from the judgment. It follows from our view of the whole case, that the appellants ought to have accepted the offer and discontinued their appeal.

We can now, however, modify the judgment by deducting from it the sum of five hundred and forty-three dollars and twenty-four cents, with interest from December 16, 1874, and as modified it should be affirmed, but without costs of the appeal to either party.

Freedman and Sedgwick, JJ. concurred.


author: By the Court.— Monell, Ch. J.

text:
    SARAH L. HUDSON, Plaintiff, v. REUBEN SMITH, et al., Defendants.
    I. ESTOPPEL BT RECORD, AND RES ABJTJBIOATA.

    1. A judgment in an action brought pursuant to the provisions of § 33, article 3, title 3, chap. 8, part 3, R. S., relative to charging heirs and devizees with the debts of the decedent, to the extent of the estate, interest, and right in the real estate descended to them from, or devised to them by, such decedent, to charge certain real estate with a debt due the plaintiff by a decedent, estops the parties defendant and their privies from thereafter disputing that the decedent had such estate, interest, and right in such real estate, as she was by the complaint in such action alleged, and by the decision thereof, adjudged to have.
    8. A judgment of a court of competent jurisdiction upon any fact, title, or question distinctly put in issue, or directly involved in the suit, is conclusive in any other action between the same parties or their privies, in respect to the same fact, title, or question.
    H. Legal title, effect of implied trust upon; see remarks of the learned judge.
    HI. Subrogation—Right of pa/rty in possession, claiming ownership to pay off a lien and claim a subrogation; see remarks of the learned judge.
    Before Monell, Ch. J., Freedman and Sedgwick, JJ.

      Decided June 7, 1875.

      Exceptions ordered to be heard at general term.
    The action was to recover possession of a lot of land in this city.
    Prior to May, 1854, Michael Burke was the owner of the lot in question. In that month he mortgaged the lot to one Quackenbush.
    In June, 1855, an action was commenced to foreclose the mortgage, and a judgment of foreclosure and sale was entered December 6, 1855, which judgment was assigned to Mary J. Watson. The premises were sold under the judgment in August, 1858, bid in by, and conveyed to Mrs. Watson.
    It was claimed on the part of the defendants, that the assignment to Mrs. Watson of the judgment, and the conveyance to her on the foreclosure sale, was merely nominal. That the money was furnished by her mother, Mary Lotta, to whom it was claimed the-property—although legally vested in Mrs. Watson— in reality belonged.
    In August, 1859, Mrs. Watson conveyed the premises to Tates, Porterfield & Wells. The deed was-absolute on its face, and was recorded as a conveyance, and not as a mortgage ; but it was executed and delivered under the following circumstances:
    Mrs. Watson applied to Yates, Porterfield & Wells-for a loan, and as security offered a deed of these premises. The loan was made, and the deed taken as security.

    In the same month (August, 1859), Isabella Berrand (a daughter of Mrs. Lotta) went to Yates, Porterfield & Wells, expressing dissatisfaction with the conveyance to them, claiming that the property belonged to-Mrs. Lotta, and then and there paid to them a part of the loan ; and subseqently (in June, 1860) paid to them the remainder, and then demanded a conveyance-by them to Mrs. Lotta of the property. Ho conveyance was ever given.
    In 1861 or 1862, Mary J. Watson died intestate and it was claimed that she was the equitable owner of the premises, subject only to her conveyance by way of mortgage to Yates, Porterfield & Wells.
    Upon the death intestate of Mrs. Watson, without issue, the property, or such right and interest as she had, descended or passed to her mother, Mary Lotta (for life), with the reversion to her brother and sister —Robert Lotta and Mrs. Berrand, as her heirs-at-law.
    At and previous to the death of Mrs. Watson, Mrs. Lotta was in possession of the property, and remained in possession until her own death in December, 1864.
    After Mrs. Lotta’s death, Mrs. Berrand had the possession, collected the rents, and exercised general acts of ownership over the property, claiming it as her own.
    At the time of the death of Mrs. Watson she was indebted to Mrs. Hudson, the plaintiff in this action, to recover which she commenced in June, 1869, an action in the supreme court of this state. The action was against Isabella Berrand and Robert Lotta (among ■others) as the heirs-at-law of Mrs. Watson, to enforce payment out of property inherited by them from Mrs. Watson, the debtor.
    The complaint in that action alleged that Mrs. Watson, “at the time of her decease, was seized and possessed in fee of the following real estate, namely,” describing the lot in question. That the" said real ■estate, on the decease of Mrs. Watson, descended to the defendants “ Isabella Berrand and Robert Lotta, as her heirs-at-law.”
    A judgment was demanded against such defendants “as the heirs-at-law of Mary J. Watson,” and “that the plaintiff might have execution thereof, of the before ■described real estate only, and not otherwise, and that as against the plaintiff and as against all persons claiming under the judgment-and execution, the other -defendants be barred of all right, title, and interest in said premises.”
    The summons and complaint in that action were duly served on Mrs. Berrand and Robert Lotta. Mrs. Berrand appeared in the action and answered the complaint. Robert Lotta did not appear. Mrs. Berrand, denied that Mrs. Watson was seized in fee of' the premises, or that it had descended to her and her brother, Robert Lotta, as the heirs-at-law of Mrs. Watson.
    She then set up the said mortgage from Burke to Quackenboss, the suit to foreclose same, and the recovery of a decree therein; and further that Burke requested Mary Lotta, her mother, and the mother of said Mary J. Watson, to purchase said decree, which she consented to do, and did purchase said decree for one thousand dollars ; but that being old and infirm, she delivered said one thousand dollars to said Mary J. Watson, to complete said purchase and take an assignment of said decree to her, said Mary Lotta ; but instead thereof, said Mary J. Watson “ erroneously and inadvertently ” took an assignment to herself in her own name ; that interest was thenceforth, until August, 1858, paid on said decree to said Mary Lotta; that after-wards said Mary Lotta caused said premises to be sold under said decree, and they were bid in by her agent, Mary J. Watson, who “ erroneously and inadvertently” took the title to said premises in her name, but who in her lifetime “ never claimed or pretended to be the real owner thereof, or that she had the same in any other capacity than as agent of, and for the use, and subject to the direction and control of the said Mary Lotta, deceased, and not otherwise.”
    She further alleged that notwithstanding that the premises were conveyed to said Mary J. Watson, the said Mary Lotta, from the date of the sheriff’s deed to Mrs. Watson to the time of her decease, was in possession of the premises, receiving the rents and profits; that Mrs. Lotta died in possession of the premises, leaving a last will, wherein she devised unto her (Mrs. Berrand), all her real and personal estate, under which devise she claimed to be the “ sole, true, and equitable owner of the premises.”
    ¡Neither of the defendants appeared at the trial. The action was tried by the court without a jury, and the following facts and conclusions were made:
    That by a certain indenture dated August 13, 1858, made between James G. Willett, sheriff of the city and county of ¡New York, of the first part, and Mary J. Watson of the second part, the said James 0. Willett, as such sheriff, conveyed to said Mary J. Watson, in fee, the premises described in the complaint, and she thereupon entered into possession thereof, and that said real estate is of the value of five thousand dollars.
    That the father of said Mary J. Watson predeceased her ; that said Mary J. Watson at the time of her decease left no child her surviving, but left her surviving her mother, Mary Lotta, since deceased, and one brother, ¡Robert Lotta, and one sister, Isabella Berrand.
    The following were the conclusions of law :
    I. That said Mary J. Watson, at the time of her decease, was seized and possessed in fee of the premises, described in the complaint.
    II. That said Robert Lotta and Isabella Berrand are-the heirs at-law of the said Mary J. Watson, and said premises descended to them as such heirs-at-law, to each one-half thereof.
    III. That said bond remains unpaid, and that there is now due to the plaintiffs thereon, the sum of three thousand three hundred and fifty-one dollars and sixty-two cents for principal, and eleven hundred and fourteen dollars and thirty-eight cents for interest thereon,, making in all forty-four hundred and sixty-six dollars-

      Upon these findings a judgment was entered that the plaintiff have execution thereof, “ out of the real estate in the complaint described, only, and not otherwise ; and that as against the plaintiff, and as against all persons claiming under the judgment and execution the other defendants be barred,” &c.
    Under an execution upon the judgment, the sheriff sold the lot in question, and in August, 1871, conveyed it to Mrs. Hudson, the plaintiff.
    The action was tried by the late chief justice and a jury.
    Upon proof of the facts hereinbefore stated, the court directed a verdict for the defendants.
    The plaintiff excepted.
    Judgment upon the verdict was suspended, and the exceptions directed to be heard in the first instance at the general term.

      J. Townshend, for plaintiff.

      H. E. Tallmadge, for defendant.
   By the Court.— Monell, Ch. J.

The sheriff’s deed to Mrs. Watson, executed and delivered under the foreclosure judgment of the Burke mortgage, vested her with legal title to the premises. Any equity existing in Mrs. Lotta, arising from her having advanced the money to purchase the judgment, did not, of itself, divest the legal estate from Mrs. Watson (1 B. S. 728, §§ 51, 52), and her subsequent conveyance to Yates, Porterfield & Wells, although intended as a mortgage, vested them with the legal title,' subject only to a defeasance upon establishing the nature of the conveyance.

It is conceded that the conveyance was as a security for a loan. Thus, in effect, the grantees became mortgagees, and the equity of redemption remained in Mrs. Watson, the grantor.

It is possible that Mrs. Lotta, being in possession and claiming to own the property, having paid the loan, had an equitable right to be subrogated to the rights and interests of the mortgagees, and could, irrespective of her claim under the alleged trust existing between herself and Mrs. Watson, have insisted upon payment of the sum by Mrs. Watson ; or could have acquired the rights of the mortagees, as the equitable assignee of the mortgage, and compelled its payment by action of foreclosure.

So again, at any time during the life and -even after the decease of Mrs. Watson, the equity arising under the alleged trust could have been enforced, and the legal estate of Mrs. Watson divested in favor of Mrs. Lotta, who thereupon could have redeemed the premises from the mortgage to Yates Porterfield & Wells.

But at the decease of Mrs. Watson the legal title was still in Yates Porterfield & Wells with the equitable title still in Mrs. Watson. The only right or interest in Mrs. Lotta, was under an unasserted and unrecognized implied, or equitable, trust, or else under some possible right acquired by payment of the loan.

Down, therefore, to the commencement of the present plaintiff’s action in the supreme court, the rights and interest of the several parties were unchanged. Mrs. Watson died, and whatever rights she had passed to her mother and brother and sister, subject of course, if she was the owner, to the payment of her debts. Mrs. Lotta 'was and remained in possession, claiming as owner, until her decease, when all the rights she had passed to Mrs. Berrand, as her devisee.

The theory of the action in the supreme court, was, that Mrs. Watson had seizin in fee, which descended to her heirs-at-law. That theory negated any seizin or other right in Mrs. Lotta, or in Mrs. Berrand, under Mrs. Lotta’s will. The allegation in the complaint was to that effect, and the judgment so determined. Neither Mrs. Lotta, during her life, nor Mrs. Berrand after Mrs.. Lotta’s death, asserted or attempted to assert, any of the equitable rights or interests which it was and is-claimed she possessed. But having been in uninterrupted possession of the premises for some ten or more years, they seem to have deemed it unnecessary to defend their possession against the attempt to obtain payment of Mrs. Watson’s debts out of their alleged inheritance.

The action in the supreme court was prosecuted under the Revised Statutes (2 R. S. 452, § 32), which' provides that the heirs of every person who shall have died intestate . . . shall respectively be liable forth e debts of such person ... to the extent of the estate, interest, and right in the real estate which shall' have descended to them, from . . such person ; and the question which prominently presents itself, is, whether the judgment in that action, and the title made under it, is not conclusive upon Mrs. Berrand, and those claiming under her.

Judgments of courts of competent jurisdiction are-conclusive, as to the parties and privies, as to the subject-matter adjudicated upon ; and such parties are estopped from afterwards litigating the same subject matter, in any form of action whatever.

So that if the seizin of Mrs. Watson, and the inheritance of the estate by Mrs. Berrand and her brother, as the heirs-at-law of Mrs. Watson, were adjudicated in that suit, all the parties are estopped from disputing-the conclusion in any other action.

Thus in Oatram v. Morewood (3 East R. 346), it was held, that if a verdict be found on any fact or title, distinctly put in issue in an action, such verdict may be pleaded by way of estoppel in another action, between the same parties or their privies, in respect to-the same fact or title.

It was necessary in the action to compel the payment of Mrs. Watson’s debts, to establish her seizin of the property, or of some vendable or leviable interest in it. If she had no title or interest, it could not be subject to her debts. The statute provides (2 R. S. 453, § 36), that it shall be incumbent on the creditor seeking to charge any heirs, to show the facts and circumstances therein required to render them liable. And the heir is allowed to take issue upon those facts, and it is only upon its appearing that any lands or tenements have descended to the heir, that such lands can be held for the payment of debts, and to create a descent there must have been a seizin in the person from whom the lands descended.

The statute regulating proceedings against heirs or devisees (2 R. S. 454 § 54) provides that the judgment shall direct the debt to be levied of such real estate as shall appear to have descended, and not otherwise and gives it a preference, as a lien on the real estate descended, to any judgment or decree against the heir personally for any debt or demand in his own right.

This, therefore, seems to me to be a clear case of estoppel by record, shutting out the defense set up in the answer; and estopping Mrs. Berrand and her grantee from claiming title through or under Mrs. Lotta. As to that subject it was fully and directly litigated in the supreme court suit, where the only legitimate inquiry related to the seizin of Mrs. Watson.

Mrs. Berrand contested that question, and claimed title in herself under the will of Mrs. Lotta, setting up substantially the same facts, which she now claims constituted Mrs. Lotta’s equitable title to the premises. That issue was adjudged against her, and in this action the former adjudication must be regarded as res judicata.

One or two citations are sufficient for the principle. In Doty v. Brown (4 N. Y. 71), the general proposition is stated to be that the judgment of a court of competent jurisdiction upon a question directly involved in the suit is conclusive in a second suit between the same parties, depending on the same question, although the subject-matter of the second action be different.

In Castle v. Noyes (14 Id. 329), the action involved the title to personal property. The action was to recover its possession. One Houghton was the common source of title. The plaintiff claimed under a chattel mortgage executed by Houghton, and the defendant under a judgment and execution against Houghton. The defendant attempted to impeach the mortgage, which was met by proof of a former recovery in a suit wherein the defendant was plaintiff, and one Burk was defendant, in which Burk was sued for taking a part of the mortgaged property. Burk took the property as the servant of the mortgagees, and justified under the mortgage. The tona Jides of the mortgage was directly involved and contested in that action, and was sustained by the judgment. The court held, that the judgment was conclusive against the defendant’s title in this action. The court say (p. 331) the issue upon his title is precisely the same in this suit as it was in the suit before the justice.

In this case the judgment establishing the lien upon the lands as the lands of Mrs. Watson, involving as it did, the whole question of her title, as well as the whole question of the defendant’s title, is an effectual estoppel against Mrs. Berrand, estopping her from now setting up any adverse title in herself, arising from the •same facts or circumstances which she had already set up in the former action, and which, in that action, had been determined against her.

In this view the plaintiff was entitled to recover. She had acquired a title under a judgment authorizing the sale of the property. The judgment was against those now claiming adversely to it, and they are es-topped by it.

As the exception to the direction of the learned justice must be sustained, it is not necessary further to inquire whether, independently of the point decided,, the defendants had shown any title whatever in themselves, and, therefore, anything to weaken the plaintiff’s claim under her judgment, which may always be done upon the principle, that in the action of ejectment a defendant may rely to defeat the action upon the weakness of the plaintiff’s title. The evidence of any such right to or interest in the property, was certainly very slight, and probably not sufficient to affect or impair the title which the plaintiff had acquired under her judgment.

The exception to the direction of the court must be sustained, the verdict set aside, and a new trial ordered, with costs to the plaintiff to abide the event.

Freedman and Sedgwick, JJ., concurred.


author: By the Court.—Freedman, J.

text:
    IGNACIO F. ALFARO, Plaintiff and Respondent, v. STRATFORD P. DAVIDSON, et al., Defendants and Appellants.
    MOTION FOR A NEW TRIAL ON THE MINUTES OR A CASE.
    The grounds on which it is based must appear in the
    RECORD.

      Jtule relaxed on appeal.

    When there is an appeal from the judgment as well as from the order denying a motion for anew trial, and both appeals are brought in for argument at the same time, this rule is relaxed, because the court is in a position to do full and complete justice between the parties according to the exigencies of the case, and without regard to mere matters of form.

      Buie strictly enforced on appeal.

    When, however, the appeal from the order denying the motion for a new trial is brought on for argument while the appellant is keeping himself in such position, so that in case of non-success he may prosecute a further appeal from a judgment already entered, or to be entered, the rule will be strictly enforced, and the order below affirmed for the reason that the grounds on which the motion was based do not appear on the record.

    Before Monell, Ch. J., and Freedman, J.

      Decided June 7, 1875.
    Appeal from order denying defendants’ motion on the judge’s minutes for a new trial, a verdict having been rendered in favor of the plaintiff for five hundred dollars.

      S. F, Cowdrey, counsel for appellants.

      F. R. Coudert, counsel for respondent.
   By the Court.—Freedman, J.

This action was brought to recover damages for the breach of a contract. At the trial both parties gave testimony, and the case was submitted to the jury under the charge of the court, and the jury rendered a verdict in favor of the plaintiff for five hundred dpllars. No motion was made by the defendants for the direction of a verdict. After the rendition of the verdict, the defendants moved upon the minutes of the judge, but without assigning any grounds for the motion, that the verdict be set aside and a new trial granted. The motion was denied, and a memorandum of such decision entered in the clerk’s minutes. This memorandum the defendant’s counsel sees fit to term an order denying his motion. From this so- called order the present appeal is taken, and upon such appeal we are asked to review the whole proceedings, which include questions of pleading and of evidence, and questions relating to the effect and construction of contracts, to the damages given and the measure of damages, and to the refusal to charge certain requests, to none of which questions the attention of the judge below was called at the time the motion was made. The defendants have procured an order staying plaintiff’s proceedings on the verdict until the determination of the present appeal.

In my judgment such practice should not be sanctioned.

The practice of bringing separate appeals from the judgment and from the order denying a motion for new trial, at different times, involving as it does the necessity of the examination of, to' some extent, the same questions by different general terms varying in their composition, and consequently the possibility of a conflict of decisions in the same case, is open to so many objections, be the appeals ever so meritorious, that this court has at all times felt it to be its duty to discourage it, so far as it can be properly done.

In every case in which the pendency of both appeals is made to appear, it is customary to insist that they be argued together at the same term. When this is done, the court is in a position to do full and complete justice between the parties, according to the exigencies of the ease, and without regard to mere matters of form.

When, however, but one appeal is taken, and the court is forced to entertain and determine it by itself, it is but due to the respondent, especially as long as the right to take the other appeal remains preserved, to hold the appellant to strict practice. This is especially necessary in case the appeal is from the order denying the motion for a new trial, no matter whether the motion was made at the conclusion of the trial on the judge’s minutes, or subsequently at special term on a case. In every such case the record should clearly show the grounds upon which the motion was based.

In all other matters the rule is firmly established, by a long series of decisions, that the error complained of must be specifically pointed out.

In matters of evidence it is the duty of the counsel making the offer to apprise the court of the reasons which render the evidence offered material, and an exception to the exclusion of a single question, so broad and general that its materiality could not be readily seen, has never on appeal been held error sufficient per se to work the reversal of a judgment.

So an objection made must be accompanied with a statement of the ground upon which it is made, and, if the objection be overruled, the exception taken can be sustained upon no other ground than the one thus specified, unless the ground not stated is one that could not possibly be obviated, or unless the ruling excepted to is of a very general nature, as, for example, a direction to the jury to find for a particular party, in which case a general exception is sufficient. -

For a similar reason a single exception to a whole charge, or paragraph of a charge, any portion of which is correct, or to an entire piece of evidence, any part of which is admissible, or to a refusal to charge several propositions, any one of which was properly refused, is unavailing.

Why, then, should an appellate tribunal, on an appeal from an order denying a motion for a new trial, review the whole proceedings at the trial, when the printed case fails to show the grounds upon which the motion was based, or does show that no grounds were assigned ? It is a familiar rule that the appellate court will presume nothing in favor of the party alleging error, but that, on the contrary, every reasonable intendment on questions of law as well as of fact, is to be made in support of the ruling below, and that the party who alleges error holds the onus of establishing it. But if on an appeal from an order denying a motion for a. new trial this rule be disregarded, it is difficult to perceive what test can be applied to ascertain the correctness of the decision appealed from. The motion may have been denied because made on a ground which was utterly untenable. Is the appellate court to look through the entire case, pleadings, testimony and all, to discover a ground upon which it possibly might have been granted ? Then, again, suppose no reasons were in point of fact given for making the motion. Can it be solemnly determined that the judge erroneously decided a question which he was not called upon to decide, and which he never considered ? Such a course would be not only manifestly unfair to the judge below and unjust to the respondent, but it would also be at utter variance with the doctrine of error.

In Joannes v. Jennings (6 Supreme Ct., Thompson & Cook's edition, 138), the supreme court of the first department has recently come to the same conclusion.

The fact that the case submitted fails to show upon what grounds, if any, the motion was based, being sufficient to call for an affirmance of the order, I think it best to refrain from the expression of an opinion upon the other questions that have been discussed, especially as this disposition of the present appeal leaves the defendants at liberty to re-argue all questions arising upon exceptions on the appeal from the judgment to be hereafter taken, if they should be so advised. But in conclusion it may be well to express a doubt as to whether the mere memorandum in the clerk’s minutes is an order at all. The better -practice would have been to enter a formal order.

The order appealed from should be affirmed, with costs.

Monell, Ch. J., concurred.