author: —O’Gorman, J.

text:
    BENJAMIN L. LUDINGTON, Respondent, v. HENRY R. LOW, as Admr., &c., Appellant.

      Mortgage—Assumption of—Contract, construction of effect of recitals.

    S. and W. entered into an agreement under seal, reciting that whereas W. had bought a certain house, &c., from S. for the sum of $35,500, payable as follows: “22,000, by assumption of a certain mortgage now on said premises toL., together with interest,” &c., the balance to be otherwise paid as therein set forth. On the same day and as part of the same transaction, S. at the request of W., executed a deed of the premises to W.’s wife, subject only to the mortgage aforesaid, and acknowledging the receipt of the consideration money.

      Held, that the agreement and deed are to be construed together, and from them it appears that Mrs. W., as the appointee of W., took title to the premises subject only to the mortgage, and without personal liability for the same, and that as to Mrs. W., the consideration was paid; that W. by the agreement between him and S., was liable as principal debtor for any deficiency after foreclosure; and that the mortgagee L. could have the benefit of this agreement in an action brought by him against W. to recover such deficiency.

      further held, that the fact that the agreement upon which the liability of W. is based, is found only in a recital, is of no importance.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided June 8, 1886.

      Appeal from a judgment entered in favor of the plaintiff for $5,557.18.
    The action was tried by a single judge without a jury, and was brought to compel Hezekiah Watkins to make good a deficiency of $3,514.54, arising on a sale of real estate under foreclosure of a mortgage, on the ground that Watkins had, by his written agreement, assumed payment of the mortgage. It appeared that the plaintiff Ludington, being owner of a lot in Lexington avenue, with the house thereon, sold it to Sarah E. Slauson for the sum of $35,500, and she gave him, in part payment thereof, a mortgage on the premises for $22,000. Some time afterwards, on April 18, 1873, she entered into a written agreement with Watkins, which was in part as follows : ‘ ‘ Memorandum of agreement made this eighteenth day of April, 1873, between Sarah E. Slauson and Hezekiah Watkins, as follows : Whereas, the said Watkins has this day bought of the said Slauson the house and lot known as No. 359 Lexington avenue, New York, together with the furniture, &c., &c., for the sum of thirty-five thousand five hundred dollars ($35,500), payable as follows : $22,000 by assumption of a certain mortgage now on said premises, to B. L. Ludington, together with interest from April 1, 1873,” &c. The balance of the purchase money Watkins agreed to pay, partly by his notes amounting to $3,500, and partly by railroad mortgage bonds. The agreement further recited that, 1 ‘ Whereas, there are liens upon said premises which are to be paid off by said Slauson as follows ” (setting forth such liens), and then provided that the note and securities mentioned were to be deposited with a trustee to be delivered to said Slauson on payment of the liens which by the agreement were to be paid by her. This agreement was executed under seal by Sarah E. Slauson and her husband, and by said Watkins. On the same day, April 18, 1873, and as part of the same transaction, and at the desire and request ,of Watkins, a warranty deed of the said lot and house was executed and delivered by Mrs. Slauson and her husband to Elizabeth F. Watkins, wife of said Hezekiah Watkins. In this deed the consideration is stated as $35,500, in hand paid by the grantee (Mrs. Watkins), and it was covenanted that the property was free and clear of all incumbrances, except that it was subject to the said mortgage of $22,000 to Ludington, the plaintiff.
    Further facts appear in the opinion.

      William J. Groo, for the appellant:
    I. The deed and agreement considered and construed together, show that Mrs. Slauson and her husband for the consideration of $35,500, “ the receipt whereof is hereby acknowledged, ” conveyed the premises subject to the Ludington mortgage. Previous to the drawing and execution of these-instruments, the parties thereto must have agreed verbally to the provisions which they contain; viz., that although Watkins had agreed to buy the real and personal property of Mrs. Slauson, that it should be conveyed to his, Watkins’ wife, subject to the Ludington mortgage. The property being incumbered, it was necessary for Mrs. Watkins’ protection, that provision should be made to satisfy such liens, and it was agreed that an instrument should be drawn to accomplish that object. So the deed Was drawn and executed according to the previous verbal agreement, and Mrs. Watkins took the property subject to the mortgage, and the agreement, drawn and executed at the same time of the deed, recited the fact that the property had been sold, the amount of consideration, and that part of said consideration was payable by the assumption of said mortgage. This last mentioned instrument was not in duplicate, but when executed, was delivered to and always retained by Watkins. Its execution was not acknowledged or witnessed. Under these circumstances there can be no doubt, but that the parties thereto used the word, “ assumption,” in the recitals of the agreement, when referring to the mortgage, with the same significance as the words “subject to said mortgage.” They simply intended to refer to the terms of the deed on that subject. It is an unwarrantable assumption to claim, that Watkins intended, by this agreement, executed and delivered - to him for the protection of his wife’s property, to make himself liable for the mortgage that Mrs. Slauson had given to Ludington, if the property should not bring the amount. It will hardly be claimed, that he would be liable under this agreement, if the deed had been given to him, instead of his wife : nor that she would have been liable to Ludington had she signed the agreement instead of her husband. Schley v. Fryer (1 Centr. Reptr. 5), distinguished.
    II. The case of Booth v. Cleveland R. M. Co. (74 N. Y. 15), is to be distinguished from the case at bar. In this case none of the acts to be performed relate to the payment of the $22,000 mortgage. They all have reference to judgments against said property, the payment of back interest on said mortgage and taxes, and the placing in escrow of certain securities. But for these judgments against the property, no such, agreement would have been necessary. By the execution and delivery of the deed to Mrs. Watkins, subject to the mortgage, and the surrender of. the notes and railroad bonds to Slauson, the transaction would have been complete, and terminated. The liability of Watkins was an afterthought, as shown by the fact that Ludington brought two foreclosure actions on said mortgage without making any personal claim against him. As the deed was executed, it imposed no liability upon any one, although the Ludington mortgage formed part of the consideration (Belmont v. Coman, 22 N. Y. 439). Nothing less than a positive promise to pay the outstanding mortgage, or language that the courts can fairly construe into such promise, will create a personal liability. All the recent decisions show that the court of appeals is not inclined to enlarge this rule (Smith v. Truslow, 84 N. Y. 660).

      III. If it be said that the recitals preceding the agreement of April 18,1873, are evidence of a verbal agreement by which Mr. Watkins bound himself to pay said mortgage, we answer, that the agreement, whatever it was, having been reduced to writing, must control. No previous oral agreement can be proved or inferred to change the writing (Selchow v. Stymus, 26 Hun, 145 ; Burr v. Hyde, 17 Hun, 190 ; 7 Abb. N. C. 403 ; 81 N. Y. 175).
    IV. The case of Slauson v. Watkins (86 N. Y. 597), ought not to be regarded as controlling here. It was an action between other parties and raised other issues.

      B. L. Ludington, respondent in person.
   By the Court.

—O’Gorman, J.

(Afterstating the facts as above.)—The manifest intention and result of this agreement and deed, forming together one transaction, were that Mrs. Watkins acquired the fee of the property, subject only to the mortgage, and that her husband, Hezekiah Watkins, paid the consideration for the sale, partly in cash and partly by assuming the burden of caring for the mortgage, so that the mortgagor should be held harmless on account of it (Pardee v. Treat, 82 N. Y. 385).

The mortgage was payable in installments—one of them for $5,000, being due on October 1, 1873. This installment not being paid, an action to foreclose was brought by Ludington, in which Mrs. Slauson, Mrs. Watkins and Hezekiah, her husband, were made defendants. This action was discontinued on the terms of defendant, Hezekiah Watkins, agreeing to pay $2,000 on account of the mortgage on May 1, 1874, and $3,000 on April 1, 1876, and said Watkins did pay $2,000 in June, 1874, in performance of his agreement to assume payment of the mortgage.

In May, 1876, another suit for foreclosure of that mortgage was begun by the plaintiff, Ludington. In this action, Hezekiah Watkins was made a defendant, but no personal judgment was asked against him, and a judgment was obtained, and the premises were sold, the result being a deficiency of $3,514.54. To recover the amount of this deficiency from the legal representative of Hezekiali Watkins, since deceased, the present action is brought.

During the pendency of the foreclosure suit which resulted in the sale of the property, an action was brought in this court by Mrs. Slauson, to compel Mrs. Watkins to pay the amount due on the mortgage to Ludington. The complaint in that action was dismissed, and this decision being affirmed by the general term, was afterwards sustained by the court of appeals (86 N. Y. 597), which held that by the express terms of the agreement of Watkins, $22,000, part of the price of the property, was discharged or paid ; by his “assumption ” of the mortgage, and that that word indicated an adoption or taking on himself the burden of the mortgage by Watkins, so that Mrs. Slauson, the mortgagor, should not be harmed or troubled by it, that it was, in substance, a promise to indemnify or hold her as mortgagor harmless, for or on account of it; and the learned court further held that until the determination of the foreclosure suit, then pending, and the ascertainment thereby of the mortgagor’s liability after the sale, this action of Mrs. Slauson did not lie.

Following in the track of this opinion of the court of appeals, there seems little difficulty in sustaining the judgment in the case at bar.

The amount of Mrs. Slauson’s liability, as mortgagor, has been ascertained by the foreclosure and sale, and also the deficiency arising therefrom.

If, as the court of appeals say in Ludington v. Slauson (supra), Mrs. Slauson should be compelled to pay a deficiency arising on the foreclosure of the mortgage, the defendant (Watkins) would, by the terms of his agreement, be liable to her.

The effect of the conveyance to Mrs. Watkins and the agreement between Mrs. Slauson and Hezekiah Watkins, was to make the mortgaged premises primarily liable for the debt, and Watkins principal debtor, as between Mrs. Slauson and him.

That the plaintiff, Ludington, the mortgagee of the mortgage could have the benefit of the agreement between Watkins and Mrs. Slauson, cannot, I think, be successfully contended (Lawrence v. Fox, 20 N. Y. 268 ; Burr v. Beers, 24 Ib. 178 ; Garnsey v. Rogers, 47 Ib. 233 ; Pardee v. Treat, supra; Bennett v. Bates, 94 N. Y. 354 ; Todd v. Weber, 95 Ib. 181; Smith v. Truslow, 84 Ib. 660 ; Slauson v. Watkins, 86 Ib. 597 ; Vrooman v. Turner, 69 Ib. 280).

The appellant contends, that the question of responsibility of the defendant Watkins for payment of the deficiency, depends rather on the language of the deed to his' wife, than on the language in the memorandum of agreement, between him and Mrs. Slauson; that in the deed there was no covenant on the part of his wife,—the grantee,—that she should assume payment of the mortgage, but that she took title, subject only to the mortgage, and that no more than that was intended by the agreement between her husband and Mrs. Slauson; that in the deed the receipt of payment in full of all the consideration money was acknowledged; that the reference, in the agreement, as to the assumption of the mortgage by Watkins was in the “recital” only, and not among the things, which Watkins promised to perform. None of these objections seems to me of weight.

There is nothing inconsistent in the execution of the deed to the wife, as her husband’s appointee, and the payment of all the consideration by him. As between Mrs. Watkins, the grantee, and Mrs. Slauson, the grantor, the consideration was paid, as set forth in the deed, and no personal obligation to pay the mortgage rested on the grantee.

Such liability did rest on Watkins, her husband, as the result of his own agreement to pay the consideration, and to pay it, in part, by the assumption of this mortgage (Pike v. Seiter, 15 Hun, 402). That his agreement to assume is to be found only in the “recital,” is of no importance in this inquiry.

There is no particular form of words, necessary to the creation of an express obligation to do or to forbear to do a particular act. It is from the text of an agreement, and the language of the parties either in the body or in the recital or references, that the intention is manifested (Booth v. Cleveland, &c. Co., 74 N. Y. 15; Schley v. Freyer, 1 Central R. 5). In the case at bar, it was recited that Watkins had bought the house from Mrs. Slauson, for a sum of money payable, in part, by his assumption of the mortgage. This was not the creation of a new agreement to do an act, but the declaration and admission of an agreement, then in existence, on the faith of which the sale was made.

There was no contention in the case, as to the facts, and the exceptions on the part of the defendant to the findings and refusals of the learned trial judge to find, are immaterial and without merit.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Oh. J., and Truax, J., concurred.


source: Caselaw Access Project

author: O’Gorman, J.

license: Public Domain

text:
    BENJAMIN WRIGHT, as Receiver, &c., Appellant, v. MARY A. NOSTRAND, et al., Respondents.

      Bestitution of moneys collected as costs—When ordered against receiver individually.

    Plaintiff, as a receiver, obtained a judgment in his favor at special term, which, after reversal at general term, was upheld by the court of appeals, and pilamtiff entered a money judgment for the costs, which were thereafter paid to the sheriff, and by the latter turned over to plaintiff's attorney, who retained the same, the amount being composed of disbursements made by the attorney personally and his taxed costs. Thereafter, the court of appeals modified their said judgment and disallowed the costs of the appeals. An order of restitution under $ 1323. Code Civ. Pro. was obtained at special term, holding the receiver liable personally for the repayment of said costs, and also his attorney.

      Meld, on appeal therefrom, that the granting of the order was within the power of the court under said section, and was discretionary; that the transaction was in effect as if the money had been received by the receiver, and by him paid to his attorney in reduction of his claim against the receiver individually for services in the litigation, and therefore that the receiver should be held personally liable ; finally that said order in so far as it holds the attorney liable, should be reversed.
    Before Sedgwick, Oh. J., and O’Gorman, J.

      Decided June 8, 1886.
    Appeal by plaintiff from order made at special term, that he restore to defendant, Mary A. Nostrand, $471.27, being amount of costs collected by his attorney under a judgment obtained against her in this court at special term (See 47 Super. Ct. 441).
    That judgment was first affirmed by the court of appeals. Afterwards it was, on reconsideration by that court, modified in certain particulars, and among other things, the costs of the appeals amounting to the above sum were disallowed, and restitution was claimed under section 1,323 of the Code, the same having been collected prior to the modification of the judgment aforesaid.
    The order appealed from required the plaintiff personally, or his attorney, to pay back the costs to the defendant’s attorney within ten days from entry of the order.

      E. J. Spink, attorney, for appellant:
    I. It may well be questioned whether the court, by summary proceeding on motion, can compel the restitution of this money from either the receiver or his attorney. It is not a case of misconduct of an officer of the court or of payment by mistake. The money was as lawfully collected and paid as any money ever paid over on an execution, to an attorney. It will not be claimed that the subsequent action of the court could have a retroactive power to make an act unlawful or wrong, which, when committed, was wholly lawful and proper. The remedy then is by action; or if not, the power of the court arises out of facts occurring since the receipt of the money, and warrants the court in making its order against its officer who received the money.
    II. A receiver acting under the direction of the court is not personally liable for costs unless he has been guilty of mismanagement, misconduct or bad faith (Devendorf v. Dickinson, 21 How. 275 ; § 317 Code Proc.; § 3246 Code Civ. Proc.; Marsh v. Hussey, 4 Bos. 614; Wheeler v. Wright, 14 Abb. 353).
    III. A receiver acting as an officer of the court and under its direction simply is liable only for his own acts, neglect or misconduct, and not for that of an agent, attorney or employee (Camp v. Barney, 4 Hun, 373; Devendorf v. Dickinson, 21 How. 275 ; Cardot v. Barney, 63 N. Y. 281-290).
    IV. The order in effect imposes a penalty upon Mr. Wright. This the court has no power to do, except for some alleged and adjudicated misconduct. He has received no compensation as receiver. He has not, and never had, any funds as receiver. These costs never came to his hands, and he never had the power to collect them. He could not recover them from his attorney, for there is no privity between them. The attorney was employed for the receiver and has acted as such, and not for Mr. Wright personally. Mr. Wright cannot pay as receiver, for as such he has nothing. If he pays personally, he can have no remedy against any one for restoration.
    V. This judgment was for costs solely. The disbursements had been made by the attorney himself. He had a lien upon the judgment for his costs, which in this case was the whole of it. He was in law the equitable assignee of the judgment, and had the right as against the plaintiff to collect it, and apply it to his own use (Keenan v. Dorflinger, 19 How. 153; Fox v. Fox, 24 Ib. 409; Cregier v. Cheesbrough, 25 Ib. 200; Haight v. Holcomb, 16 Ib. 160 ; aff’d in part, 16 Ib. 173; Rooney v. Second Avenue R. R. Co., 18 N. Y. 368; McGregor v.
      Comstock, 28 Ib. 237; Ward v. Wadsworth, 1 E. D. Smith, 598).
    VI. If the receiver had known of the collection of these costs he could not lawfully have claimed that they be paid over to him as such receiver, or personally, nor have compelled the attorney by any process to so pay them over.
    VII. Where, as in this case, a receiver has been appointed in supplementary proceedings, and the written request of the judgment creditor is presented and filed with the order granting leave to sue, the creditor is personally liable for costs (Rule 79, General Rules Practice, in Thompson v. McCloskey, 5 Law Bull. 19 ; McHarg v. Donnelly, 27 Barb. 100).
    VIII. The attorney himself could not claim that Mr. Wright personally should pay his costs. He could only be entitled to them out of funds in the hands of the receiver as such—or from the real parties in interest—the judgment creditors at whose request, and for whose benefit the action was prosecuted, and if the costs are to be restored, either the attorney who has received them or the parties for whose benefit he acted should make the restoration.
    IX. It is submitted that the order appealed from if not reversed, should be modified as respects the plaintiff, so as to require him to restore as receiver only ánd out of any funds which may have, or shall come to his hands as such, and not brand him with the imputation of misconduct which must attach to a compulsory personal payment. .

      Eclwarcl P. Wilder, for respondent:
    I. The power to order restitution of moneys collected under a judgment which has subsequently been vacated or modified exists by virtue of the Code, § 1323 (Marvin v. Brewster Mining Co., 56 N. Y. 671 ; Whitbeck v. Patterson, 22 Barb. 83; Estus v. Baldwin, 9 How. Pr. 80; Hunt v. Westervelt, 4 E. D. S. 225; Kennedy v. O’Brien, 2 Ib. 41). Nor can any question be raised as to whether the present application for restitution should have been made to the general term rather than to the special term. The power conferred upon the general term cannot be deemed to be to the exclusion of the special term An order now made upon this appeal would come strictly within the language of § 1323 (Tracy v. Talmadge, 1 Abb. Pr. 469 ; Anon v. Anon, 10 How. Pr. 253). The special term may hear all questions that could come before the general term (Bliss’s Code, Notes to § 235 ; Mason v. Jones, 1 C. R. N. S. 335 ; Corning v. Powers, 9 How. Pr. 54). Unless the power vested in this court by § 1323 can be exercised in the present case that section becomes nugatory and void. That it has frequently been exercised, see Marshall v. Macey (10 Abb. N. C. 87) ; Britton v. Phillips (24 How. Pr. 111). That its exercise at special term has been upheld, see Holloway v. Stephens (1 Hun, 308 ; S. C., 58 N. Y. 670); Young v. Brush (18 Abb. Pr. 181).
    II. There is no legal force in the plaintiff’s contention that the order should have required him to make restitution only out of such moneys as he might hold in his capacity as receiver. As a matter of fact, plaintiff brought this suit at the request of the creditors of the judgment debtor. The moment that he brought this suit, he assumed all the risks and incidents of the litigation. The fact that plaintiff has realized nothing personally from the litigation is no reason why the defendant should be without redress, when plaintiff himself is amply protected by the requesting creditors. When plaintiff employed his attorney, he clothed him with sufficient authority to take all the legitimate steps necessary in the progress of the action ; and when the attorney acts within the scope of his authority, his principal is bound by his acts (Guilleaum v. Bowe, 94 N. Y. 271; Boucher v. Blanchard, 86 Ib. 256). It is sufficient for the purposes of this motion that the law in form awards the costs of action to the party, although it permits him to delegate to his attorney the right to collect them.
    III. The order for restitution is properly directed against the plaintiff’s attorney, as well as against the plaintiff, notwithstanding his agency, because the money is traced and found in his hands.
   By the Court.

O’Gorman, J.

(After stating the facts.)—The plaintiff contends that he should be held liable only in his official capacity, as receiver, and only to the extent of any money that may have come into his hands as receiver, and that the order should be modified accordingly.

The Code provides, in § 1323, that when a final judgment 03* order' is reversed or modified upon appeal, the appellate court, or the general term of the same court, may make or compel restitution of property, &c.

On the modification by the court of appeals of their first judgment against the defendants, a motion for restitution was made there and denied, the court expressing doubt as to its power, and referring the question to the superior court, as having undoubted jurisdiction ovér the execution, on which the money was paid, and over .the receiver, who was its officer.

The granting or denying the motion was within the judicial discretion of this court (Marvin v. Brewster, &c. Co. 56 N. Y. 671). The plaintiff was duly appointed receiver by order of this court, and commenced and prosecuted this action against the defendant by order of this court. He never personally received any of the money of which restitution is claimed. It was paid over by the sheriff to the plaintiff’s attorney, and the amount was composed largely of disbursements made by the attorney himself, in addition to his taxed costs, for which the attorney would have a valid claim against the receiver personally.

This money, therefore, thus paid to .the receiver’s attorney, was in effect, as if it had been first paid to the receiver himself, and by him paid to his attorney in satisfaction or reduction of the attorney’s claim against the receiver individually, for professional services rendered in the litigation (Langley v. Warner, 3 N. Y. 327).

As this payment made by defendant, so far inured to the receiver’s benefit personally,- it is but just that he should be held personally responsible for its repayment.

The order appealed from is, therefore, affirmed, with costs, except in so far as it holds the defendant’s attorney liable to repay the costs or any part thereof, and in that respect the order appealed from is reversed, without costs.

Sedg-wiok, Oh. J., concurred.


author: Per Curiam.

text:
    ALEXANDER J. MEYER, Respondent, v. THE NORTH RIVER CONSTRUCTION CO., et al., Appellants.

      Amendment of complaint nunc pro tunc—when not allowed.

    After a demurrer to the complaint has been overruled, and leave given plaintiff to enter judgment as demanded therein, no leave to answer having been asked for, and there being no demand for damages in the complaint, the prayer of the complaint cannot be absolutely amended, nunc pro tunc, so as to include a demand for a sum of money as damages.
    Before Sedgwick, Oh. J., and Truax, J.

      Decided June 9, 1886.
    Appeal by defendants from order amending complaint.
    The defendants had demurred to the complaint. The demurrers were overruled and leave was given to plaintiff to enter judgment, as demanded by the complaint. The complaint did not ask for any money judgment by way of damages. Before judgment was entered, the plaintiff made a motion upon which the order appealed from was made. The order was that the prayer of the amended complaint herein be, and the same hereby is amended nunc pro tuno so as to embrace alternate relief to the plaintiff, to the effect that he has judgment against the defendants for damages in the sum of $10,000, with interest, &c., and it is further ordered that the decree and the judgment to be entered herein shall conform to said amendments, and therein and thereby there shall be awarded to plaintiff the amount of his said damages and interest.

      Alexander & Oreen, and Edward W. Paige, for appellants.

      David Leventritt, attorney, and William II. Arnoux, of counsel for respondent
    I. This action was brought in June, 1883, to set aside the illegal forfeiture by the defendants of the subscription made by the plaintiff to the defendant corporation, upon which subscription the plaintiff had paid the sum of $10,000—and the plaintiff demanded a judgment, requiring the defendants to complete said subscription by accepting the balance of the amount of the plaintiff’s subscription and thereupon to issue to him the first mortgage bonds and stock, to which, by the terms of said subscription, he would become entitled, and for other and further relief. To the complaint, the defendants demurred and the issue of law thus raised was tried before Judge O’Gorman, who overruled the demurrers and ordered judgment in favor of the plaintiff as prayed for in the complaint. The defendants did not ask for leave to withdraw the demurrers and interpose answers to the complaint. ' Before said judgment was perfected the defendant corporation, as also the New York, West Shore and Buffalo Railway Company (to the bonds and stock of which the plaintiff became entitled) •passed into the hands of a receiver so that the performance of the judgment herein became impossible as the defendant corporation could not issue the bonds or stock, necessary to comply with the judgment of this court. Thereupon the plaintiff moved regularly for an amendment nunc pro tunc of the prayer of his complaint, so as to. recover damages (to wit : the sum of $10,000 paid by him to the defendants) in lieu of the issue of such bonds and stock, and that the decree and judgment to be entered herein be amended accordingly. No decree or judgment had yet been entered. The application to amend was granted and the defendants did not ask leave thereupon to withdraw their demurrers or to serve answers to the complaint, as amended or otherwise, but simply maintained opposition to the application.
    II. The amendment prayed for by plaintiff to the prayer of the complaint, and which was granted by order of the court, was an amendment which the court had power to make and which this court will not review, unless it clearly appears that there was an abuse of the discretion reposed in the court, as to which there is not the slightest suggestion in the case (Crookes v. Maxwell, 6 Blatch. 468 ; Hatch v. Central Nat. Bk., 78 N. Y. 487 ; Crookes v. Maxwell, 6 Blatch. 468 ; Deane v. O’Brien, 13 Abb. 11; Balcom v. Woodruff, 7 Barb. 13 ; N. Y. Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357; Harris v. Tumbridge, 83 Ib. 92 ; Roeder v. Sayre, 70 Ib. 180 ; Schultz v. Third Avenue R. R. Co., 89 Ib. 242). An amendment of the summons can be made after judgment (Gribbon v. Freel, 93 N. Y. 93). An amendment to a judgment was allowed by permitting an acknowledgment nunc pro tunc of the consent of a guardian to be annexed thereto (Tobin v. Cary, 34 Hun, 431). An amendment was allowed in an action tó foreclose a mortgage so as to charge one of the defendants with the payment of a deficiency, and the same was sustained on appeal (Bailey v. Lee, 14 Hun, 524). After judgment and upon appeal, at the general term, the description of the plaintiff as executor was amended so as to make the representative capacity of the plaintiff administrator instead of executor (Risley v. Wightman, 13 Hun, 163). A new party was by order made a defendant after the interposition of a demurrer alleging a defect of parties defendant and the order was affirmed (Lewin v. Wright, 13 Hun, 327). It will thus be seen that the power of amendment, before and after trial, as well as before and after judgment, is, in the furtherance of justice, almost unlimited.

      , III. The amendment granted did not effect any change whatever in the cause of action or in the statement of the facts contained in the complaint, but it was merely an amendment within the purview of the prayer “for other or further relief ” and which the court had the power to grant upon a trial without an amendment (Hale v. Omaha N. Bk., 49 N. Y. 626 ; Murtha v. Curley, 90 Ib. 312 ; Code Civ. Proc. § 1207).
   Per Curiam.

The Code or practice does not contemplate that judgment can be rendered, except upon pleadings duly served, after issue has been tried, or after default in demurring or answering. ' The issue made by the demurrer to the complaint did not involve a determination of the claim which, by the order appealed from, whs inserted in the complaint as a part of the relief asked. In substance, judgment has been ordered against the defendants upon affidavit.

It is suggested that the court had power to amend, and that defendants, by not asking leave to answer, have voluntarily abandoned the right to contest. The nature of the application, however, was to have leave to amend absolutely nunc pro tunc, without being obliged to serve an amended complaint. This should not have been granted.

The order should be reversed, with $10 costs of the appeal, with disbursements to be taxed, and the motion below should be denied, with $10 costs.


author: Sedgwick, Ch. J.

text:
    PHILIP KNOBLOCH, Respondent, v. WILLIAM ZSCHWETZKE, et al., Appellants.

      Mortgage debt, assumption of by grantee—assumer becoming %mnaipal.—Discharge of personal liability of assumer, effect of on liability of mortgagor —Payment by mortgagor after discharge of assumer cannotbe recovered against the assumer—Neither the not giving notice of his transaction with the mortgagee nor the fact that it was had pending a foreclosure, imposes a liability on the grantee in favor of the mortgagor—Foreclosure judgment no adjudication.

    One who takes a conveyance of real estate subject to a mortgage thereon made by his grantor to secure the grantor’s bond, and assumes the payment of the mortgage, becomes the principal debtor to the mortgagee, and his grantor becomes but a surety for him.
    If such assumer by an arrangement between himself and the mortgagee, • discharges his personal liability for the mortgage debt, his surety, the mortgagor, is also discharged.
    If the mortgagor thereafter on a claim by the mortgagee made against him personally for the mortgage debt, pays a sum of money for the discharge or release of such claim, he cannot recover the amount so paid by him, from his grantee, although his grantee failed to advise him of the transaction which resulted in the discharge of the grantee from personal liability.
    The facts that the payment made by the mortgagor was to obtain a discharge from a deficiency judgment entered against him only, in an action to foreclose the mortgage, to which action the mortgagor and his grantee were parties, by the complaint in which the usual deficiency judgment was demanded against each of them ; and that the arrangement between the grantee and the mortgagee, by which the grantee was discharged from personal liability was made pending the action, the plaintiff then stipulating to take no deficiency judgment against the grantee, which was carried out—do not impose on the grantee any liability to repay to the mortgagor any sum which he may have paid to procure a discharge from a deficiency judgment rendered against him in the foreclosure action.
    The judgment in the foreclosure action comprised no adjudication as between the parties to this action.
    Before Sedgwick, Oh. J., and Freedman, J.

      Decided June 10, 1886.

      Appeal by defendants from judgment entered on verdict for plaintiff as directed by the court; and from order denying motion for new trial made upon the judge’s minutes.
    The facts sufficiently appear in the opinion.

      John P. Schmitt, attorney, and Jacob A. Gross, of counsel for appellants,
    argued :—I. The question as to the liability of these defendants for a deficiency on a sale of the mortgaged premises was in issue in the suit brought by Wiener in the supreme court, was tried by that court and decided in favor of the defendants. This plaintiff, Knobloch, having been a party to that action is bound by the proceedings therein, and the judgment rendered exonerating the defendants is a complete bar to this action (Pray v. Hegeman, 98 N. Y. 351; Perry v. Dickerson, 85 Ib. 345; Guest v. Brooklyn, 19 Ib. 624; Smith v. Smith, 19 Ib. 634 ; Tuska v. O’Brien, 68 Ib. 446 ; Stowell v. Chamberlain, 60 Ib. 212).
    II. Wiener, the plaintiff, in the supreme court, could not by assigning the judgment for deficiency convey to his assignee any greater right than he possessed himself. Knobloch, the present plaintiff, by obtaining a release from the assignee is only subrogated to the claims of Wiener as against Zschwetzke and Kircheis. As this claim had been discharged by Wiener for a valuable consideration, no right of action passed to Knobloch. It is no answer to say that Knobloch was ignorant of the fact that the principal debtors (Zschwetzke and Kircheis) had been released by the creditor (Wiener). Standing only in the position of surety he should have inquired whether he was any longer hable. His neglect to do so imposes upon him the loss, if any.
    III. The legal effect of the discharge of Zschwetzke and Kircheis was also to exonerate the plaintiff, Knobloch, and the judgment for a deficiency, as against him, was probably unauthorized. But as he was a party to the action, he has only himself to blame if he has failed to avail himself of his legal rights.
    IV. Independently of the effect of the former adjudication, the result would be the same if Wiener had settled with Zschwetzke and Kircheis, and released them without the knowledge of Knobloch. When Knobloch conveyed to Zschwetzke and Kircheis, and the latter assumed payment of this mortgage, they became the principal debtors and Knobloch the surety. Wiener, the holder of the security, having knowledge of this relation, was bound by it and under an equitable obligation to do nothing to affect it. By releasing Zschwetske he also released Knobloch, and could thereafter maintain no action against him (Paine v. Jones, 76 N. Y. 274 ; Calvo v. Davies, 73 Ib. 211; Rainbow v. Juggins, 29 Eng. Repts. 224, note).

      Otto Meyer, attorney and of counsel for respondent,
    argued: I. The release, we contend, did not have the effect claimed by the appellants, for the following reasons, viz : (o.) The assumption of said mortgage by defendants constituted in law an absolute covenant to pay it and to indemnify and save harmless the plaintiff, not only from loss but also from liability (Cornstalk v. Drohan, 71 N. Y. 9 ; Hume v. Hendrickson, 79 Ib. 117). (b.) But notwithstanding this covenant, this plaintiff still remained liable for the payment of the mortgage to the mortgagee, and the principal debtor to said mortgagee, and no act of plaintiff could change this relation or release him from said liability (Mead v. Parker, 29 Hun, 69 ; Marshall v. Davis, 78 N. Y. 414). (c.) It was from this liability defendants covenanted to relieve plaintiff by paying the mortgage. They now claim they have performed their covenant by making a settlement with the mortgagee for their own release and allowing and consenting to a judgment for deficiency to be entered against this plaintiff. This judgment by its very terms, while it relieves defendants, holds plaintiff liable. This judgment was rendered upon notice to and appearance by defendants, was approved and consented to by the defendants, and they are bound by it; as to them it is res adjudicata that notwithstanding their said release plaintiff was still liable for said deficiency, and they cannot now show the contrary for the purpose of relieving themselves from liability (Kip v. Brigham, 6 Johns. 158 ; Kanitski v. Meyer, 49 N. Y. 571).
    II. Even if the said judgment had not made the matter res adjudicata, defendants would have shown no defense, because their said release did not have the effect of relieving plaintiff from liability to the mortgagee on his original obligation ; for (a.) The stipulation and release were made after plaintiff was in default in said action, and after plaintiff’s rights therein were fixed as against this plaintiff. It was matter occurring subsequent to the accruing of such right. (&.) Plaintiff would have been liable to the mortgagee if defendants had not been parties to the foreclosure action, and hence, the release of defendants from claim therein did not release plaintiff (Cornstalk v. Drohan, 71 N. Y. 7; Campbell v. Smith, 71 Ib. 26). (c.) The judgment in the foreclosure action reserved the right of mortgagee against plaintiff, and hence, plaintiff was not released (Morgan v. Smith, 70 N. Y. 545 ; Palmer v. Purdy, 83 Ib. 144). (d.) The release of defendants was one releasing two of several joint debtors and reserving rights against the others, and under the statute in such cases provided did not have the effect of releasing the other joint debtors (Irvine v. Wood, 56 N. Y. 635 ; Bancroft v. Winspear, 44 Barb. 209 ; Morgan v. Smith, 70 N. Y. 537).
   By the Court.

Sedgwick, Ch. J.

The plaintiff mortgaged certain real estate owned by him, in the sum of $8,000, as security for the payment of his bond in that sum. One Wiener was mortgagee. Afterwards the plaintiff conveyed the real estate to the defendants in this action. The defendants, by the conveyance, assumed and agreed to pay the mortgage. Subsequently the premises were conveyed to other parties, who also assumed and agreed to pay the mortgage. A breach of the conditions of the bond having occurred, Weiner began an action for the foreclosure of the mortgage, making parties defendant the present plaintiff, and the present defendants, and demanding against each the usual judgment for deficiency. The present plaintiff did not put in an answer or in any way make a defense in the foreclosure action. The present defendant, Zschwetzke, interposed an answer that he had been released from liability upon his covenant by Wiener, having extended to the mortgagor time for payment of the bond and mortgage. Thereupon, the attorney for plaintiff in the foreclosure, stipulated that he would not apply for any judgment for deficiency against the present defendants, and the answers were withdrawn. A writing produced on the present trial recites, that the differences between the present defendants and the plaintiff in the foreclosure were adjusted, it being proved that the defendants paid $650. The findings in the foreclosure action declare that Wiener’s claim against the present defendants was discharged. The foreclosure action proceeded to judgment directing sale of the property, and that the present plaintiff pay any deficiency, which resulted in there being final judgment against the present plaintiff in the sum of $4,081. This judgment for deficiency was assigned to one Stern, and the present plaintiff paid Stern $600 to procure a release from the judgment, and Stern gave such a release. The plaintiff now brings this action to recover the amount paid by him to Stern.

The plaintiff’s cause of action as claimed by him, is legal in its nature, for the breach by defendants of their promise to pay the mortgage made by the plaintiff. To sustain the action, it is necessary to show that the defendants have not paid in performance of their promise. The fact that the plaintiff had paid the mortgage would not of itself show that the defendants had not previously themselves paid it. The same consideration applies to the payment by plaintiff of the deficiency judgment. If the defendants had paid the mortgage, the only obligation between them and the plaintiff was thereby performed. The defendants never promised to pay any judgment for deficiency that might be entered against the plaintiff. It may be remarked that the litigation of the foreclosure action did not comprise any adjudication as between the present parties, as to the defendants’ assumption of the mortgage. The significance of that action in relation to the rights founded upon the assumption, was that it liquidated the amount, which should be applied in reduction of the amount of the mortgage, under the right the parties had that the mortgagee should first resort to the land for satisfaction of the bond.

It is not necessary to ascertain how a plaintiff in such an action is to prove a breach of the agreement. For the defendants substantially defend by setting up that in equity the defendants were the principal debtors to the mortgagee, and that the plaintiff was but a surety for them, and that they extinguished the demand of the mortgagee against themselves, so as to extinguish any demand against the plaintiff, their surety.

To sustain this defense, the defedants proved that in the foreclosure action they interposed a defense, and that upon payment by them of $650 and the withdrawal of their answer, the differences between them and the mortgagee, the plaintiff in the foreclosure action, were adjusted, and the claim against them discharged. When the principals’ liability ceased, the plaintiff’s liability as surety ceased. Calvo v. Davies (73 N. Y. 211), decides one form of such a question, and it is unnecessary to add further authorities. From the time of this discharge, the mortgagee was bound to respect the rights of the plaintiff as surety. He ceased to have any right of action against the plaintiff, and the plaintiff ceased to be liable (Grow v. Garlock, 97 N. Y. 81; Hubbell v. Carpenter, 5 Barb. 520; Delaplaine v. Hitchcock, 4 Edw. 521; Brown v. Williams, 4 Wend. 360).

The fact is, that the plaintiff paid the deficiency judgment in ignorance of his having been discharged. Does this make the defendants liable ? It does not, unless there was some legal duty on their part to inform the plaintiff of what they had done, and even then the action would be for a violation of that duty. The plaintiff being only secondarily liable, would make him the party to inquire whether the party primarily liable had not satisfied the claim, if there were a duty as to the matter resting on one or the other. There was a certain presumption that the defendants had not failed to exonerate their surety, the plaintiff. But indeed, it appeared upon the record of the foreclosure proceedings that the claim had been discharged. That fact was found by the court. The plaintiff chose not to appear, and not to examine, and not to learn his rights. It is hardly doubtful that the plaintiff was not fairly dealt with, but if that were a consideration pertinent to the determination of this case, it must also be considered that the defendants are not shown to be responsible for this.

There may be a vague thought that the parties all being charged as defendants in the foreclosure suit, might justifiably lead the plaintiff to believe that during its pendency, no change in the relations between the defendants would take place. This has no weight in depriving the defendants of their rights, because the plaintiff was bound to know, as matter of law, that even after judgment, he retained the rights of surety.

Judgment reversed and new trial ordered, with costs to abid event.

Freedman, J., concurred.


text:
    MAX DAMZIGER, Appellant, v. JOHN BOYD, et al., Respondents.

      Deeds—construction of descriptions in—Monuments not necessarily controlling courses, distances or quantities—150 and 152 Leonard Street— dividing line between.

    When there is anything in the description which shows that the courses and distances are correct, they will control, because the primary object in all cases is to arrive at the real intent of the parties. Thus, when it is apparent on the face of the deed that the intention was to convey a specific quantity of land, if the courses and distances would include that precise quantity, but the description by fixed measurement would embrace more or less, it is clear that the former should be followed.
    The above rule applied to the facts in this case.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.

      Decided June 10, 1886.
    Appeal by plaintiff from judgment entered on findings by a judge in an action of ejection tried without a jury by consent.

      The action was in ejectment. The defendant was in possession of the western part of the land indicated on above diagram, up to the center of party-wall “A.” The plaintiff claimed that he was entitled to the land on the east, from a line about five feet west of the center of party-wall “A.”
    The complaint was dismissed upon the merits.
    The parties claimed title, under a judgment in partition. Before the conveyances to the parties, the land was held as one parcel. The exterior lines of the diagram represent the parcel as a whole, excepting that the building on the rear did not cover the whole of the lot at the. rear, but left a narrow strip two feet seven inches at the eastern side, running westerly to a point. This strip is immaterial to the controversy, a,nd is not indicated on the diagram. The interior lines represent buildings upon the parcel.
    The plaintiff was entitled to land in the parcel lying to the east, and the defendant to land lying to the west The dispute is as to the dividing lines between the properties of the parties. The above diagram omits any indication of that dividing line.
    The court below on dismissing the complaint, delivered the following opinion:
    Ingraham, J.—“The buildings on the property in question were erected by the owner, of both parcels upwards of thirty years ago. Subsequently an action for the partition of the premises was commenced in the supreme court and the property sold under the judgment in that action, the grantor of the plaintiff purchasing No. 152 Leonard street, and James Boyd, through whom the defendants claim, purchasing No. 150 Leonard street.
    “The deed to James Boyd was dated April 1, 1865, and was acknowledged and recorded April 3, 1865. The deed to Peter Pia, through whom the plaintiff claims, was dated on the same day, but was not acknowledged until April 4, 1865, and was not recorded until June 16, 1865.
    “ The grantees in said deeds mentioned, respectively took possession of the premises .purchased, and they or their grantees or devisees have continued in such possessian as now occupied by them, from the time of the delivery of the deeds down to the time of the trial. Neither of the deeds, purports to give the exact number of feet of the rear line of the lots conveyed. The deed to Boyd, which was first recorded, describes it as about twenty feet to a certain party-wall or partition now on said premises. The party-wall, rear building, is twenty-five feet eleven, inches, while the continuation of the center of the party-wall of the front building would make the rear lot nineteen feet eleven and one-half inches.
    “It appears that in the partition suit the referee reported that the premises could not be actually partitioned because the pieces of property known as Nos. 150 and 154 Leonard street comprise two buildings in front and two buildings in the rear.
    “The report of sale states that No. 150 Leonard street was sold to James Boyd. This would, of course, be the front and rear building, and the court directed the referee to complete the sale and execute the necessary conveyance to the purchaser, and in pursuance of such direction the referee executed and delivered the deed hereinbefore described.
    “Taking into consideration the foregoing facts, it must have been.the intention to convey to Boyd the front and rear buildings known as No. 150, and this is confirmed by the undisputed possession of the premises for nearly twenty years, which, while not sufficient to give defendants title by adverse possession, is strong evidence of the construction of the 'deeds by the parties interested.
    “ On the whole case I think the defendants are entitled to judgment.”

      Kauffman & Sanders, attorneys, and Lewis Sanders, of counsel for appellant,
    argued :—I. If, in the description of the dividing line of the premises conveyed, the words, “ and on a line in continuation thereof ” be rejected as surplusage, the descriptions, by measurements and monuments, coincide and supplement each other and are in exact accord with themselves and the facts. That this is the rule and its proper application the authorities are unanimous (Jackson v. Marsh, 6 Cow. 283 ; Wagner v. Hodge, 34 Hun, 524 : affirmed, 98 N. Y. 654 ; Jackson v. Clark, 7 Johns. 222: Peck v. Mallams, 10 N. Y. 532 ; Bookman v. Kurzman, 94 Ib. 212). There is no ambiguity in the description, and in an action for specific performance a purchaser would be bound to take. There being nothing to construe, there could be no “ construction ” of the deeds. ■
    II. A practical construction by “ practical location ” is indicative of a controversy settled by an agreed location. A simple occupation by one party and non-interference by the other gives title by possession when claimed adversely after twenty years, but not before. The decision below shortens the statute of limitations of twenty years by an indefinite quantity, and leaves the law of adverse possession entirely in nubibus. The statute requires twenty years of adverse possession ; the opinion says any time short of twenty years will give a title to the occupant.
    To establish a practical location, affirmative acts on both sides recognizing the correctness of boundary are essential. To call the negative act of a failure to bring suit an affirmative act fixing the boundaries by mutual agreement, is utterly destructive of the sense of the words. A title by practical location does not ripen sooner than that by adverse possession: “ The doctrine as to the practical location of a boundary line, is well settled by the courts ; it was adopted as a rule of repose, with a view of quieting titles, and rests upon the same ground as the statute in reference to adverse possession which has continued for a period of twenty years ” (Sherman v. Kane, 86 N. Y. 73). In the above case, the “practical location ” was from 1812 to 1866, and the boundary line D D was shown on a map and on the soil. In Baldwin v. Brown (16 N. Y. 364), for “more than forty years.” In Jackson v. Bowen (1 Caines, 358), for thirty, six years. In Jackson v. Dysling (2 Ib. 198), for forty years. In Jackson v. Vedder (3 Johns. 8), forty years. In Jackson v. Dieffendorf (Id. 269), thirty-eight years. In Jackson v. McCall (10 Johns. 377), forty-one years. In Jones v. Smith (64 N. Y. 180), for more than fifty years. In the case at bar there has been no practical location by both parties, or by one party, and acquiescence by the-other. Neither James Boyd nor his grantees have ever done anything to locate a boundary ; they have by their tenants, simply occupied the rear building to the party-wall, claiming adversely. James Boyd did not put up the party-wall, nor was it put up by Anthony Crown, the owner of both lots, as a boundary line between the lots ; first, it was not as matter of fact such boundary; second, the front party-wall already marked the actual boundary; third, there would have then been two boundaries, irreconcilable ; fourth, it would have impaired the sale of his property. The rear building is an accident, and defendants occupation mere adverse possession.
    III. The rule that monuments control distances is subject to two qualifications : 1st, the monuments must be natural, not artificial; 2d, the quantity must be subordinate to the description, 1 ‘ but when it appears from the designation of quantity or other elements of description that the courses and distances from a. fixed and determined line were intended to control monuments, then the latter shall be disregarded” (Higinbotham v. Stoddard, 72 N. Y. 99). It is clear that a lot twenty-four feet six inches by ..ninety-one feet, was intended to be conveyed ; that quantity was the primary consideration. No. 152 Leonard street would mean a full lot without accompanying qualification, •“ The rule applies with less force to monuments which am artificial than to natural and permanent objects; and when there is anything in the description which shows that the courses and distances are right in themselves, they will prevail, because the primary object is to carry out the intention of the parties ” (Higinbotham v. Stoddard, supra). Here the intention of the parties was plain, as expressed in both the deeds, the one to James Boyd, the other to Peter Pia. Peter Pia was to get Ho. 152 Leonard street, as it appeared in front—a full lot, a parallelogram. That the party-wall of the rear building is not in fine with that of the front building, neither alters the intention, nor defeats the description. Tear down the rear building, which finds no mention in the deeds, and which does not square with either Leonard or Centre streets, and there is no difficulty in running the lines both by distance and monument named in each deed--the lines running by distance as well as by call through the center of the party-wall of the buildings fronting on Leonard street.
    IV. Defendants cited below the following authorities, besides some already noticed : Powers v. Hill, 19 Johns. 452 ; Drew v. Swift, 46 N. Y. 204 ; Robinson v. Kine, 70 Ib. 147; Avery v. Empire Co., 82 Ib. 582 ; adverse possession from 1830 to 1874. Hone of these sustain the position of the defendants, but, on the contrary, show that a practical location and its duration, and surplusage in description, are as contended for by appellant.

      Townsend & Malian, attorneys, and of counsel for respondents,
    argued: I. The construction of the buildings on both premises, and their occupation ever since their erection, show a practical and actual location of the boundary line between the rear buildings.
    II. The descriptions given in the deeds give a monumental point for the location of the boundary line between the premises 150 and 152. (a.) They started from a point on the rear fine at or opposite to the center of a party-wall or partition, and it is perfectly evident that the party-wall referred to was that between the rear buildings, (b.) The line of division which runs through a party-wall must have been the line running through the party-wall between the rear buildings, for the reasons not only that this was the party-wall upon or immediately contiguous to the rear line, but certainly because it was necessary to find a party-wall so located that, after the dividing fine had passed through it, such line will have a continuation before reaching the southerly side of Leonard street. This certainly designates the party-wall between the rear buildings as the one intended, for the front buildings stood on the very line of Leonard street, and it follows, as a mathematical demonstration, that there could be no continuation of any line to reach Leonard street after it had passed through the center of the party-wall between the front buildings. It would end as soon as it had passed through this wall, without any continuation, as is required by the description in the deed, (c.) It would be simply ridiculous to claim that the party-wall through which the division line was run was that between the front buildings, for the reasons above stated, and for the further reason that this wall did not correspond even in location to any distance given for the dividing line. In fact, as to location by distances (if “about” is to be considered as thus locating), neither the wall between the rear or the front building was on line.
    III. As to description of premises, (a.) “Where the descriptions in a deed several particulars, all of which are necessary to ascertain the land to be conveyed, nothing but what will correspond with all these particulars can pass by the grant; but if there be certain particulars sufficiently ascertained to locate the land, the additional, false or mistaken particulars may be rejected ” (Hathaway v. Power, 6 Hall, 543; Wendall v. People, 8 Wend. 189 ; Loomis v. Jackson, 19 Johns. 452). (5.) “It is a settled rule that a conveyance is to be construed in reference to its distinct and visible locative calls as marked or appearing upon the land in preference to quantity, course, distance, map or anything else ” (Van Wyck v. Wright, 18 Wend. 157). (c.) “ It is a rule of construction as to the description of premises in a deed that what is most material and most certain shall control that which is less material and less certain; courses and distances yield to natural, visible and ascertained objects ” (Doe v. Thompson, 5 Cow. 371). (d.) “Permanent and visible monument referred to in a deed will control course, distance and quantity” (Drew v. Swift, 46 N. Y. 204). (e.) “A conveyance is to be construed in reference to its visible locative calls, as marked or appearing upon the land in preference to quantity, course or distance, and any particular may be rejected if inconsistent with the other part of the description, and sufficient remains to locate the land intended to be conveyed” (Robinson v. Kirns, 70 N. Y. 147). (f.) “The long established rules in reference to the construction of descriptions contained in conveyances require courts to adopt such an interpretation thereof as shall give effect to the instrument, according to the intentions of the parties if that is discoverable from legitimate sources of information ” (Bookman v. Kurzman, 94 N. Y. 272 ; 72 N. Y. 96 ; 17 Johns. 29 ; 3 Rand. 44-49 ; 13 N. Y. 569 ; 3 Keyes, 516 ; 32 N. Y. 561; 16 Wend. 285).
    IV. As to practical location, (a.) “ Practical location and long acquiescence in a boundary line are conclusive, not upon the ground that they are evidence of a parol agreement establishing the line, but because they are of themselves proof that the location is correct and of so controlling a nature as to preclude evidence to the contrary” (Baldwin v. Brown, 16 N. Y. 359). (6.) “Where there has been a practical location of the dividing line between the lands of adjoining owners, and a long acquiescence therein, the line so established will not be disturbed” (Avery v. Empire Woolen Co., 82 N. Y. 582). “Twenty years is not essential. The time is not so important, if the proof be clear” (Decker v. Hauer, 4 Alb. L. J. 316; Brace v. Beckworth, 6 Id. 41). (c.) “A practical location of the boundary line between two lots, and an acquiescence by the adjoining owners, is conclusive upon them and their successors in interest ” (Sherman v. Kane, 86 N. Y. 57).

   By the Court.

Sedgwick, Ch. J.

The common source of title was one Crown. After his death and in an action of partition between persons claiming under him by inheritance or by his' will, part of the real estate indicated by the accompanying diagram, was conveyed to the plaintiff and part to the defendant. It is evident from the case, that the intention of the two deeds that will be construed was to give to the plaintiff all eastwardly of a dividing line between the premises of both parties as they were intended to be conveyed, and to the defendant all westwardly of that line. The controversy will be determined by placing that, line according to the proper construction of the two deeds. The exterior lines of the plot comprising the two pieces, indicate the real estate as it was held before the conveyances. And the measurements are those given by the conveyances. The dividing line which runs about south from Leonard street, is not indicated on the diagram.

The description in the conveyance of the referee in partition, of the piece which the plaintiff afterwards Required, is as follows : Beginning at a point on the southwesterly side of Leonard street, distant ninety feet, three inches, more or less from the south-easterly corner of Leonard and Centre streets, running thence south-easterly along Leonard street twenty-four feet, four inches, thence south-westerly parallel with Centre street ninety-one feet, eight inches, thence north-westerly parallel with Leonard street twenty-four feet, or thereabout, to or opposite to the centre of a party-wall or partition, and thence north-easterly through the centre of the said party-wall or partition and on a line in continuation thereof ninety-one feet, or thereabout, to the south-westerly side of1 Leonard street, the place of beginning.

The description in the referee’s deed to defendant’s land. is : Beginning at a point an the south-westerly side of Leonard street, distant forty feet south-easterly from the south-easterly corner of Leonard and Centre streets, running thence south-westerly parallel with Centre street fifty-seven feet and six inches, thence south-easterly parallel with Leonard street thirty feet, three inches ; thence south-westerly parallel with Centre street thirty-two feet and six inches; thence south-easterly and parallel with Leonard street about twenty feet to or opposite to the center of a party-wall or partition now on said premises, thence north-easterly through the center of said party-wall or partition and on a line in continuation thereof, parallel with Centre street ninety feet, six inches, or thereabout, to the south-westerly side of Leonard street, aforesaid fifty feet, three inches more or less to the point or place of beginning.

The words in italics, are the only words in the two deeds that specifically touch the matter of the dividing line that has been mentioned.

A deed of conveyance of real estate operates through its granting and conveying parts as an actual delivery of land from grantor to grantee, of which the parties to the deed give an account or description in the words of the deed. In construing the deed, the land is viewed as it is in fact, and the question is, what has the grantor delivered, if the terms of the deed are considered altogether ?

It has been assumed that the easterly line of defendant’s land, and the westerly fine of plaintiff’s, were meant to be coincident. Such was the fact, excepting that the lengths were differently described. In the plaintiff’s deed, so to call it, the fine was described as in length ninety-one feet,,or thereabout. In the defendant’s it was ninety feet six inches, or thereabout. This would only show, disregarding the word “ thereabout,” that plaintiff’s fine continued six inches southwardly beyond defendant’s line, as the north ends of both lines were at Leonard street. This prolongation is not material to the controversy.

The line or lines in dispute must be held to be straight lines. In the defendant’s deed it is said to be parallel with Centre street, which runs in a straight unbroken line. There is nothing to indicate a curved line, or one composed of two or more lines, forming angles. It is further clear, that the end of the dividing line at Leonard street is ninety feet three inches from the south-easterly corner of Leonard and Centre streets, because the next course from that end of the line, and to the place of beginning, is said to be fifty feet three inches along Leonard street to the place of beginning, which the description begins by stating to be on Leonard street forty feet from the corner of Leonard and Centre streets. The end of the line in dispute is therefore the center of the party-wall, marked “ B ” on the diagram. It is found, moreover, that plaintiff’s land begins at the center of this party-wall, for the description begins at a point distant ninety feet three inches, more or less, from the corner of Leonard and Centre streets referred to.

Again, by tfie defendant’s deed, the course, from which the disputed fine begins to run, is parallel to Leonard street, and is about twenty feet. Both the surveys, made for the parties respectively, show that this twenty feet ends at about ninety feet three inches from Centre street, or the same distance that defendant’s land extends from Centre street on Leonard street at the party-wall “B.” If there were no words in the deed to the contrary, the inference would be inevitable, that the eastern boundary would be a straight line drawn between the two points, each ninety feet three inches from Centre street. This straight line would go through the center of the party-wall “B.”

It is, however, argued, that the words of the deed necessarily call for the extension of the twenty feet course to the center of party-wall “A.” The words and “Thence south-easterly, and parallel with Leonard street about twenty feet to or opposite to the center of a party-wall or partition now on said premises.”

The rule is invoked that a visible monument referred to will control courses, distances and quantities (Drew v. Swift, 46 N. Y. 204). The course is intended to go to the monument, and the incorrect" statement of the length of the course yields to the fact that it runs to the monument. The ground of this rule and its proper application appear in the opinion in Baldwin v. Brown (16 N. Y. 359). “ The reason is that mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visible and permanent. This, however, is by no means an inflexible rule. When there is anything in the description which shows that the courses and distances are right, they will, of course, control, because the primary object in all cases is to arrive at the real intent of the parties. For instance, when it is apparent upon the face of the deed that the intention was to convey a specific quantity of land, if the courses and distances given would include that precise quantity, but the description by fixed monuments would embrace more or less, it is clear that the former should be followed. To do otherwise would be to defeat the plain intent of the parties.” This was approved in Higinbotham v. Stoddard (72 N. Y. 94), and in Brookman v. Kurzman (94 Ib. 272). In the last case it was said : “In giving effect to such intention, it is also their duty to reject false or mistaken particulars provided there be enough of the description remaining to enable the land intended to be conveyed to be located (Hathaway v. Power, 6 Hill, 453 ; Wendell v. People, 5 Wend. 189 ; Loomis v. Jackson, 19 John. 449). It was said in Robinson v. Kime (70 N. Y. 147), that a conveyance is to be construed in reference to its visible locative calls, as appearing upon the land .... and any particular may be rejected if inconsistent with other parts of the description and sufficient remains to locate the land intended to be conveyed. The rule that a monument controls other positions of the description in a deed is not inflexible ; when the monument is repugnant to another of like character, or a map gives other results, the truth is to be ascertained from all the facts of the case (Townsend v. Hayat, 51 N. Y. 656 ; Higinbotham v. Stoddard, 72 Ib. 94).” The principle is again recognized in Hussner v. Brooklyn City Railroad Co. (96 N. Y. 18) ; Mott v. Mott (68 N. Y. 246), and the cases cited there.

That the party-wall, to which or opposite to which the line of twenty feet is said to run, is the party-wall “A,” seems to be clear. The use of the alternative refers to the fact that there was doubt whether the party-wall ran quite to the rear line of the lots. The phrase is applicable to party-wall “A,” but not “ B,” for that reason.

In considering whether the course or the party-wall “A” controls, it must be noticed that the party-wall is distant from the last point of departure twenty-five feet, nine and a half inches. This is a difference from the course of twenty feet, more or less, of great importance and not likely to occur from imperfect surveying. The words “more or less” are not to be taken to intend to comprize such a possible mistake. These words are not meant to convey an indefinite quantity. They are a guard against inaccuracy (Brady v. Hennion, 8 Bosw. 528). It would be one consequence of extending the line to twenty-five feet and more, that the next or disputed line, would end at a point on Leonard street, that would give the defendant five more feet there, than it is certain the deed intended to give.

The description in the defendant’s deed will not allow the disputed line to run in this way. That line is claimed to run parallel to Centre street, and through the center of party-wall “A” and on a continuation of that center-line, but it is made to end at ninety feet three inches from the corner of Centre and Leonard street. If it does so end and if it be a straight line, beginning at the center of party-wall “A” it will be a diagonal line, leaving the party-wall “A” at a short distance from the point of beginning, running through an alleyway on Leonard street, cutting through beams above that alley and entering party-wall “B” at a short distance from Leonard street. No conceivable state of facts would present a motive for a division of this kind, which, if by chance it had been made at a former time, would have brought about a re-arrangement for convenience of occupation and of sale, that would have been settled in the partition action.

Eunning the line as proposed by plaintiff would give to him possession of the whole of party-wall “A.” And of a part of defendant’s house, indicated along its beams by no supporting partition. Yet if it be run as proposed by defendant it will give him the whole of party-wall “B” and a part of plaintiff’s house on Leonard street. Such a division would be eccentric and inconvenient, but not so eccentric and inconvenient as would be the division made by running the diagonal line, that has been imagined.

All the inferences that have been drawn from the terms of defendant’s deed would be repeated in an analysis of the description of plaintiff’s deed.

The difficulty is solved and the incoherent made coherent by holding that the following are the dominant certainties of the conveyances: On Leonard street the dividing point is the center of party-wall “B,” ninety feet three inches east from the corner of Centre street and Leonard street. The dividing line runs southwardly from that point and parallel with Centre street ninety feet six inches, or ninety-one feet or thereabout, until it meets the rear line of defendant’s premises. The result is, that rear line is found to be twenty feet long more or less, as given in defendant’s deed. If these things are certain, then the deed as a whole does not give the defendant to party-wall “A.” It is certain that the words “to or opposite to ” the party-wall is a mistake in the description of the line of twenty feet, and not the reverse. The former is to be rejected and not the latter. The cases that have been cited say, in substance, that when no other parts of the description should be considered, then simply as between the statement of a length of a line and of the fact that such line runs to a monument, the latter is to be deemed the more certain evidence of the intention, but that other parts of the description may show that the statement of length is the more certain. If the parties were on the land and went over the lines, it would be clear that a declaration or supposed perception that the point referred to was opposite the party-wall, was a mistake in words or of the senses, was an error or inadvertence, shared by both parties.

Judgment should be reversed, new trial ordered, with costs to abide event.

Van Vorst and Freedman, J'J., concurred.


author: Ingraham, J.

text:
    THE SEVENTH WARD NATIONAL BANK, Respondent, v. THE NEW YORK ELEVATED RAILROAD CO., Appellant.

      Corporation.—Trespass.—Damages.—Corporation is equitable owner of real estate held,for it by offices' under by-laws and charter.—Such equitable title can be conveyed by corporate deed. — Owner of the equitable title in possession, may maintain trespass.—•Corporation itself using and occupying property, cannot recover for trespass more than nominal damages, when the sole evidence of damages is as to the general depreciation of rental value.

    The plaintiff was in possession of certain premises claiming title under a deed to it made by Alfred J. Frazer, the president of the Seventh Ward Bank in the city of New York, which deed was under the seal of the corporation, and executed and acknowledged as its act. Frazer derived his title by virtue of his presidency, under a deed made to William Halsey “ President of said Seventh Ward Bank.” The deed was made to Halsey, and he held the property under articles of association of the bank, by which its president was designated as the officer to whom conveyances should be made of real estate belonging to it, to take, hold and convey the same on its behalf, which articles pursued in this respect the provisions of the act under which the bank was organized.

      Held, that the Seventh Ward Bank by the conveyance to Halsey, became the equitable owner of the property, and the deed by Frazer was properly executed and acknowledged to pass that equitable title; and the plaintiff holding the equitable title, and being in possession of the property could maintain an action of. trespass against persons unlawfully entering thereon.
    The plaintiff brought this action to recover damages alleged to result from defendant’s acts in erecting, repairing, and maintaining in and on the sidewalk, and the street upon which the plaintiff's property abutted, certain structures, and running railway trains thereon, whereby, among other things plaintiff’s light was darkened, free circulation of air, ventilation, and access from the street were obstructed, and its premises rendered damp and dark, and subjected to loud noise, stench, smoke, gas, etc. It appeared that plaintiff itself rented and occupied the premises after the acts complained of up to May 1, 1882, in the same manner as they had before. There was no evidence that any additional expense was caused either in the management or carrying on of plaintiff’s business, or in any other way, nor was there any as to the rental value of the easement by itself; but there was evidence as to the depreciation in the rental value of the whole property. The trial judge was requested to charge that the plaintiff was not entitled to recover any rental value prior to May 1, 1882, which request was refused.

      Held, error.
    Before Sedgwick, Oh. J., and Ingraham, J.

      Decided June 14, 1886.
    Appeal from judgment entered on verdict of jury.
    The facts appear in the opinion.

      Davies & Bapallo, attorneys, and Julien T. Davies, of counsel for appellant.

      Edward B. Cowles, attorney, and of counsel for respondent.
   By the Court.

Ingraham, J.

The appellant presents but two grounds for the reversal of the judgment appealed from.

First, that the evidence failed to show a good title in plaintiff to the premises No. 234 Pearl street, being a portion of the premises described in the complaint.

It appears that this property belonged to a banking corporation known as The President, Directors and Company of the Seventh Ward Bank,” whose charter expired on January 1, 1863. Just prior thereto, a banking corporation was formed under the general banking law to take the place of the said corporation, known as the “ Seventh Ward Bank.” By the articles of association, the president of the said Seventh Ward Bank was indicated as the officer to whom should be made conveyances of real estate belonging to the corporation, to take, hold and convey the same on behalf of the corporation. In pursuance of this provision the real estate in question which had been owned by the former corporation, and had been used by it for a banking house, was conveyed to “William Halsey, president of the said Seventh Ward Bank.”

The said Seventh Ward Bank was organized under chapter 260 of the Laws of 1838, and by section 24 of this act it was provided that “all conveyances of such real estate shall be made to the president, or such other officer as shall be indicated for that purpose in the articles of association, and which president or officer, and his successors, from time to time, may sell, assign, and convey the same free from any claim thereof against any of the shareholders or any persons claiming under them.”

On this conveyance to Halsey, I think it clear that the bank became the equitable owner of the property ; the legal title being in the president of the bank.

A deed was executed whereby “Alfred S. Frazer, the president of the Seventh Ward Bank in the city of New York, party of the first part,” conveyed to the plaintiff the property in question. That conveyance was properly executed and acknowledged as an act of the corporation and the seal of the corporation affixed.

The corporation being the equitable owner of the premises, I think this deed was sufficient to convey the equitable title of the property to the plaintiff, and the plaintiff, thus became the equitable owner of-the premises. The deed being executed by the bank, and properly acknowledged as an act of the bank, was admissible in evidence, and the plaintiff in the action being the equitable owner of the premises, and being in possession, could maintain an action for trespass.

The second objection taken by the appellant is that the court allowed the plaintiff to recover for the depreciation of the rental value of the premises caused by the maintenance of the Elevated Railroad structure, and operation of the road from August 26, 1878, to May 1, 1882, during which period the plaintiff occupied the premises for its banking business.

The only evidence of damage caused by the structure complained of was the decrease in the rental value of the premises. The court charged the jury that “The question was whether the Elevated Railroad was indebted to the plaintiff, who is the owner of the premises in Pearl street, for rent for defendant’s use and occupation of that easement for a certain period of time,” and at the end of the charge the learned judge said, “Whatever it (defendant) takes from him (plaintiff) in impairment of his easement, is what it gets for itself, and for what it gets for itself, if it does get if and it uses it, it is bound to pay rent in this action.”

By the thirty-first request the defendant asked the court to charge that “the plaintiff is entitled to recover no rental value of the premises described in the complaint, prior to the first of May, 1882, for the reason that during that period it occupied the premises in question itself and suffered no pecuniary loss or damage,” which the court refused to charge, and to which the defendant excepted.

Plaintiff was a corporation and the action was in tort, for the damage done to plaintiff’s property by reason of the unlawful acts of the defendant in appropriating and using plaintiff’s property in Pearl street, and interfering with the plaintiff’s easement in said street. There was no allegation that the relation of landlord and tenant existed between plaintiff and defendant, but it is alleged in the complaint that the said road was built after notice to defendant that the plaintiff forbadethe construction of said railroad through said street, and that it should hold the defendant responsible for any and all damage which might be suffered by it in consequence thereof.

No recovery could be had for use and occupation of plaintiff’s easement in the street. An action for use and occupation can only be sustained on the ground of a subsisting tenancy between the parties (Kiersted v. O. & A. R. R. Co., 69 N. Y. 343.).

It is well settled that a corporation can maintain an action of tort for damages to its property or business, but not for damages to person or character.

In the Shoe and Leather Bank v. Thompson (18 Abb. Pr. 413), the presiding justice says : “ There can be no doubt that a corporation may maintain an action for damages to property or business of the corporation, no matter in what way that injury was effected, whether by trespass, by negligence, or by willful acts of any kind causing damage. The true rule seems to be, as to the power of corporations to maintain actions, that they may do so in all cases necessary for the preservation of their property and rights, and for the recovery of any damage occasioned by the wrongs of others, but not for those damages to persons and character for which an individual may recover unconnected with loss or injury to property.”

Another principle is also established, and that is, in an action for trespass where there is no malice shown, and where no right is involved beyond a mere question of property, vindictive or exemplary damages should not be allowed, and that the measure of damages is a matter of law (Sedgwick Measure of Damages, chap. 18, pp. 453, 454.)'

Also page 36, where it is said, “In all cases growing out of the non-performance of contracts, and in those of infringement of rights or non-performance of duties, created or imposed by law, in which there is no element of fraud, willful negligence, or malice, the compensation recoverable in damages consists solely of the direct pecuniary loss.”

It follows, therefore, that in an action where the recovery is limited to the damage to property caused by the wrong complained of, and the amount of such damage does not appear, and there is no evidence from which such amount can be ascertained, nominal damages only can be awarded. As was said in Leeds v. Metropolitan Gas Light Co. (90 N. Y. 26), “where the loss is pecuniary, and is present and actual and can be shown, but no evidence is given to show its extent, or from which it can be inferred, the jury can allow nominal damages only.”

Applying these rules to the case at bar, it appears that this is a case in which vindictive or exemplary damages cannot be allowed, and it is evident that under the rules above stated, plaintiff was entitled to recover such damage as was shown by the evidence was actually sustained by it; but if there was no evidence showing the extent of the injury, plaintiff is entitled to nominal damages only.

In this case the only evidence of the damage caused by the trespass, between the time of the construction of the defendant’s road and the first of May, 1882, is evidence of the decrease of the rental value of the property.

In the case of an individual occupying premises where, by the evidence, it appears that a nuisance makes the premises disagreeable and uncomfortable to the occupants, evidence of the depreciation of the rental value caused by the nuisance would be some evidence of the amount of the damage sustained by the owner as showing the extent of the depreciation of the value of the occupation of the property, and this rule of damage was apparently approved in Francis v. Schoellkopf (53 N. Y. 152); but in the case of a corporation,- the fact that the premises occupied by it for its business are made disagreeable and uncomfortable to its agents or employees is of itself no evidence of damage to the corporation, without additional evidence that the fact that the premises were made disagreeable to occupy, caused the corporation additional expense, either in the management or carrying on of its business, or in some other way.

The evidence does not show that if the railroad had not existed in the street, the plaintiff would have received anything for the use of the premises ; that the use of the premises was made any more difficult or expensive to the plaintiff in consequence of the existence of the railroad ;' or, that if the road had not been built, the premises would have been used in any other or different way than they were used.

The fact that its rental value in the market had been depreciated was no pecuniary loss to plaintiff, so long as it continued to use the property for its own purposes. It could make no possible difference to the plaintiff whether the property was worth, during the period named, $500 or $5,000 a year, for the property was not rented.

Nor was there evidence of the rental value of the easement occupied by the defendant. The depreciation of the rental value of the whole property caused by the appropriation of the easement in the street was not evidence from which the jury could ascertain the value of the use of the easement itself.

I think it clear, therefore, that the plaintiff was entitled to nominal damages only,, for the period from August 26, 1818, to May 1, 1882, and that the charge of the court allowing the jury to find for the plaintiff for the damage to the rental value prior to May 1, 1882, and to which the defendant excepted, was erroneous, and that the thirty-first request of the defendant should have been charged by the court.-

As the other exceptions that appear on the record were not pressed by the counsel for the appellant on the argument, or in the brief submitted by him, they have not been examined.

For the reason above given the judgment must be reversed and a new trial ordered, with costs to abide the event, unless the plaintiff stipulates to reduce the judgment to the amount given for damages from May 1, 1882, to October 15, 1883, when the property was sold, with interest thereon. If the plaintiff so stipulate the judgment as modified is affirmed, without costs of this appeal.

Sedgwick, Oh. J., concurred


text:
    MICHAEL NOONAN v. JOHN H. STRAHAN.

      "Written instruments.—Application of provisions.—As to its "being a question for the jury to pass on.

    Upon the assignment of a contract upon the performance of which the assignor would be entitled to receive a large sum of money, the assignee, a lawyer, made an agreement with the assignor, whereby the assignee was to be paid “ a fee of §3,500 in full payment and satisfaction for his services in all matters and questions which have arisen or may arise in relation to said contract.” After performance of this contract, as claimed by the parties to the action, an action was necessary to be brought to recover the money payable under it. The assignee in his capacity as a lawyer, conducted the suit for the plaintiff. The litigation was long and laborious, but was finally successful, and the defendant here (such assignee), received a large sum of money. After that litigation had been in progress a length of time, the plaintiff here wrote to the defendant here, to the effect that a certain specified sum was to bo by him (such defendant) retained, out of any judgment that might be recovered in that action, “ together with the sum of §10,000 counsel fee.” The question involved in this action is, whether the defendant is entitled to retain the two sums of §3,500, and §10,000; upon this, the plaintiff under the whole evidence asked to go to the jury as a question of fact, xvhich request was refused by the trial judge, he holding as matter of law,that defendant was entitled to both services. A verdict for defendant was directed.

      Held, error; that prima facie the services rendered in the action fell within and wrere covered by the first agreement; that it devolved on the defendant to show by circumstances outside of. the words of that contract, so that the jury would not be entitled to say to the contrary, that such services did not fall within that agreement; that he did not so show, but on the contrary there was testimony that would have supported a verdict for plaintiff.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.

      Plaintiff’s exception to a direction of verdict in.favor of defendant, ordered to be heard in first instance at general term.

      L. Laflin Kellogg, attorney and of counsel for plaintiff,
    argued I. If the question raised in this case as to the construction of the contracts upon the evidence produced, is to be determined by the court, the court has erred in directing a verdict for the defendant. It should have directed a verdict for the plaintiff. It is a well recognized- rule of law that prior contract is merged in and superseded by a subsequent contract upon the same subject, which, as the last act of the parties, must be held to contain and express their true meaning and intention (Stow v. Russell, 36 Ill. 18 ; Hargrave v. Conroy, 19 N. J. Eq. 281; Cheeseburgh v. N. Y. & Erie Railroad Co., 26 N. Y. 9). This rule prevails even when there is no intention expressed in the latter instrument that it is intended as a substitute of the first. Where one contract has been made between two persons, and at a subsequent period another contract having reference to the same subject-matter, but changing the relations of the first contract, is entered into, the last contract controls or rescinds the first, though there be no such effect expressed in the last contract (Reed v. McGraw, 5 Ohio, 330). It is well settled that in considering contracts the acts of the parties themselves leading to or done in reference thereto, and the facts in view of which it was made, may be considered (Slapenhust v. Wolf, 35 Super. Ct. 25 ; Knapp v. Warner, 57 N. Y. 668 ; Clark v. N. Y., L. & G. Co., 64 Ib. 33; Coyne v. Weaver, 84 Ib. 386 ; Stokes v. Recknagle, 38 Super. Ct. 368). Extrinsic evidence may show a new agreement substituted for the former which it sets aside (2 Pars. Contr. 554; Monroe v. Perkins, 9 Pick. 298; Goss v. Lord Nugent, 5 B. & Ad. 58 ; Jeffery v. Walker, 1 Stark. 267).
    II. It is well settled that when the meaning of a contract is'obscure and depends upon facts aliunde in connection with written language, that a mixed question of law and fact is presented for the jury (First National Bank Springfield v. Dana, 79 N. Y. 108 ; Pitney v. Glen’s Falls Ins. Co., 65 Ib. 6; De Lavallete v. Wendt, 75 Ib. 579 ; Glacius v. Black, 67 Ib. 563 ; Curbs v. Ayrauldt, 47 Ib. 73; Martin v. Cope, 28 Ib. 180 ; Gardiner v. Clark, 17 Barb. 551; Ebley v. U. S. Bank, 11 Wheat. 59 ; Jenys v. Sherwood, 8 Corns. 122 ; White v. Hoyt, 73 N. Y. 505 ; Law v. Townsend, 11 Gill [Md.] 407). If the testimony of the plaintiff to the effect that one contract was a substitute for the other was not sufficient upon which to direct a verdict, it should have been sent to the jury to pass upon its weight (Edward v. Western Union Telegraph Co., 45 N. Y. 549). The jury should have been allowed to pass upon the intention of the parties to these contracts. Of this they were deprived by the ruling of the court.

      Thomas Allison, attorney and of counsel for defendant.
   By the Court.

Sedgwick, Ch. J.

The action was for money received by defendant for plaintiff’s use. The plaintiff had made a contract with the city, from which, upon performance on his part, he would be entitled to receive a large sum of money. Circumstances which it is not necessary to detail, led the plaintiff to assign to the defendant all moneys to grow due to the plaintiff under the contract. Contemporaneously, an agreement was made between the parties. It recited the making of the assignment, and that it, although absolute on its face, was made only “in security.” And thereupon the agreement witnessed, that the purposes for which the assignment 'was made were as then followed : “ First, that out of the sums assigned as aforesaid, the said party of the second part,” the present defendant, “ is to be paid a fee of $3,500, in full payment and satisfaction for his services in all matters and questions which have arisen or may arise in relation to said contract.” Then were stated the other purposes. These are not material to this appeal. After this the defendant performed valuable services in relation to the contract.

The agreement was made in May, 1879, and the contract had not then nearly been performed.

After performance, as claimed by the parties to this suit, the city refused to pay the money that the contract provided should be paid by it. Various and complicated claims to the moneys due under the contract and the agreement that has been referred to had arisen. By consent of the parties interested, these claims were united in Thomas J. McKee, and by general consent an action was brought against the city for the recovery of the amount due under the contract. This action was begun in October, 1882. The plaintiffs therein were Mr. McKee and the present plaintiff. They appeared by the present defendant as their attorney. The issues were referred and the .testimony was taken through a laborious trial down to February 12, 1884. On that day the plaintiff here wrote to the present defendant a letter. It declared that under the assignment already recited in this opinion, the plaintiff acknowledged that the defendant had advanced to him $31,167.96, and that this amount, after the payment of certain claims, is to be retained by you out of any judgment recovered against the city on my said contract, together with the sum of $10,000 counsel fee.”

Judgment was obtained against the city, and a large portion of it paid to the present defendant. The claim in this action is that he has not paid to the plaintiff all that the latter is entitled to receive. The defendant claims to be entitled to retain the $3,500, provided for his fee under the first agreement. The plaintiff claims that this provision was extinguished by the arrangement made by the letter of February 12, 1884. The plaintiff does not dispute defendant’s right to retain, as he has the $10,000 fee provided by the letter.

On the trial, the learned judge held, that the defendant was entitled to retain both fees; that the latter was intended to be additional to the former. The plaintiff asked to go to the jury on the question of fact, of whether the services for which the $10,000 counsel fee was provided, were not part of the services for which the fee of $3,500 had been stipulated to be paid. If that were the case, the defendant could not justly claim to retain for services under one contract, when he had retained enough to pay him under the other.

The first consideration pertains to the inquiry, whether, on the face of the first contract it appears that such a service as the defendant rendered for the plaintiff in the action against the city, and for which in part the $10,000 fee was to be paid, was not contemplated by that contract. The description of the services to be rendered was “ services in all matters and questions which have arisen or may arise in relation to said contract.” There can be no doubt that the subsequent action against the city, was a matter relating to the contract, and the phrase “fee of $3,500,” has an intimation that the services intended were partly at least of a legal kind, which is customarily paid for by fees. Then, the defendant, to sustain his position, must resort to circumstances outside of the words of the contract, and show from them, so that a jury would not be entitled to say to the contrary that the intention of the parties did not regard services of the kind that the defendant rendered in the action. The testimony as to these circumstances was not so decisive of the question, that a jury could not find to the contrary. It is not to be said that a jury would not have been warranted in finding for the defendant on this point. But there was testimony which would have supported a verdict for plaintiff. Part of it may be adduced. The action was an appropriate means of accomplishing the purpose, for which on its face, the agreement had been made. After the agreement, and for about fifteen months while the action was pending, the defendant did not ask for any compensation from the plaintiff for the services in the action, or that any arrangement concerning it should be made. According to the plaintiff’s testimony which a jury must weigh, the defendant demanded the compensation of $10,000, because the sum of $3,500 was not sufficient or proper. From this, the jury would be called upon to say whether the defendant did not admit that the two sums referred in part at least to the same services.

In my opinion, the plaintiff should have been permitted, as he asked, to go to the jury, on the question of whether it was not intended by the first contract that the services by it to be rendered by the defendant, were not such as he afterwards rendered in the action against the city.

The plaintiff’s exception sustained, the verdict set aside, and a new trial ordered, with costs to abide the event.

Truax and O’Gorman, JJ., concurred.