author: By the Court.—Speir, J.

text:
    ABRAHAM ACKERMAN, Plaintiff, v. GEORGE JONES, President, &c., Defendant.
    I. Libel.
    1. Privileged, publications.—Judicial proceedings.—Reporters,—Editors and proprietors of newspapers.

    1. No action will lie against such editors, &c., for the publication of a fair ana true report of a judicial proceeding, except on proof of malice in the making such report, which is not to be implied from the fact of the publication.
    See act of 1854, ch. 150.
    The act of 1854 is declaratory of the common law,
    3. Third person. The fact that he who claims to be libeled by the report was not a party to the judicial proceeding, does not affect the privilege.
    3. Judicial proceeding.— What is within the statute.

      a. An ex-parte affidavit presented to a police magistrate to obtain a search warrant.
    4. Fair and true repaid.—What is.

      a. Where the affidavit states that affiant had probable cause to suspect and did suspect that letters written and addressed to him, and being his property, and also a check for thirty dollars, indorsed to his order, and being his property, had been feloniously taken, stolen and carried away from.his safe by one A., at the instigation -and by the direction of B., and then set forth the reasons for the suspicion, a report, stating that the affiant appeared before a police magistrate and stated . that several important letters and a check for thirty dollars were taken from his safe by a private detective named A., at the instance of B., a banker; that B. was arrested and taken to the station-house, where the letters were found in his possession, and then he was discharged from custody, and the police magistrate retained the letters in his possession for the present (there being no evidence" that the letters were found in the possession of B., or that the" magistrate retained them), is a fair j and true report; consequently privileged, and an action} by A. for libel; founded thereon, cannot be sustained. /

      5. Malice.—Letter advising editor of the falsity of the charge, and requesting him to communicate with plaintiff's attorney as to a retraction and redress of the grievance.

    1. Taking no notice of the letter is not evidence of malice.
    6. Falsity of charge.—Evidence of, not admissible.

    1. Where the report is privileged, and that constitutes the defense, evidence of the falsity of the charge is inadmissible.
    7. Question of law as to whether a report ispi-ivileged, when.

    When the question depends wholly on a comparison of written judicial proceedings, and the report thereof, there being no ambiguity of language.
    1. Rule applied in this.
    Before Freedman, Curtis and Speir, JJ.

      Decided January 31, 1874.
    Exceptions ordered to be heard at general tenr.
    This action was brought by the plaintiff-, a private detective or police officer, to recover damages of the defendant, for publishing an alleged libelous article in the ¡New York Times newspaper.
    The complaint alleges that on October 31/1871, the defendant maliciously composed and published in said Times an article setting forth that one John T. Burleigh appeared before Judge Shandley, a police justice, at the Jefferson market police court, and stated that several important letters and a check of thirty dollars were stolen from his safe by a detective named Ackerman, at the instance of Emil Justh ; that Burleigh did not make any such statement in his said affidavit, and that, by reason of the publication, the plaintiff was injured in his reputation and credit as such detective, and otherwise injured.
    The answer admits the publication of the matter complained of, and avers that the publication was privileged, and was made without malice; that said Burleigh did appear before Judge Shandley, who at that time was and now is a police justice, and empowered by virtue of his office to administer oaths and conduct judicial proceedings, and that the affidavit was openly and publicly made in the course of a regular proceeding in the court wherein the People, &c., on the complaint of said Burleigh, were plaintiffs, and Emil Justh was defendant. That the affidavit forms part of the public records of the court. It denies that the publication was made with any malice or evil intent, or that the plaintiff was in fact injured thereby.
    On the trial, plaintiff read in evidence the affidavit of Burleigh, which was as follows :

      “ Police court, Halls of Justice.

      “ City and county of Hew Y'ork, ss. :

      “ John T. Burleigh, of No. 23 Bey-street, in the city of Hew York, being duly sworn, deposeth and saith, that at various times from about September 6, to October 6, 1871 (especially at' the last mentioned date), at the city of Hew York, was feloniously taken, stolen and carried away, the following property, to wit: Certain letters written by various parties, addressed to, and" the property of this deponent, also cer tain receipts for money paid by deponent, and a certain check drawn on the Hational Bank of Hew York, by W. W. McFarland, for the sum of thirty dollars, bearing date about October 3, 1871, and indorsed to the order of deponent and his sole and exclusive property. That deponent has probable cause to suspect, and does suspect that the said property was feloniously*taken, stolen, and carried away by one A. Ackerman, at the instigation and by the direction of one Emil Justh, and that the same is now in the possession of said Emil Justh, and that the said property is now concealed in an office occupied by said Emil Justh, and in which he is engaged in business, in the premises known as Ho. 53 Exchange Place, in the said city of New York, and in the dwelling house occupied by said Emil Justh, known as No. 117 West 13th-street, in the city of New York, and that the grounds upon which the said suspicion is based, are as follows: That deponent has an office at No. 23 Dey-street, in the city of New York, and that in a safe in said office, the said letters, receipts and check were kept. That at or about 1:30 o’clock in the afternoon of October 6, 1871, deponent opened his safe, and observed, that the said letters, receipts and check were therein, and all in one bundle. That at or about fifteen minutes to two o’clock in the afternoon of the said last mentioned date, the said Ackerman called on deponent at his said office, and took a seat near deponent, who at this time, was sitting at his desk, and immediately in front of the said safe, the door of which, being at that time open ; that between the said hours of 1:30 p. m., the time said Ackerman came in, no other person was in the vicinity of the said safe; that the said Ackerman at such time stated to deponent that the object of his visit was, to render the deponent important service by imparting to him some information which he possessed in regard to said Justh, and which deponent could make use of, very much to the injury of said Justh. Thai deponent suspected that such avowed object was expressed by the said Ackerman, as a means of concealing his real design, and knowing that he was in the employ of said Justh, refused to consent to any information upon the subject before alluded to, being imparted to him (the deponent). That deponent at that moment, having occasion to attend to some business at or near the door of his said office, left his desk for that purpose, and when he returned (which was after an interval of a few minutes), the said Ackerman left his seat, which was then right against the door of the safe aforesaid, and departed accompanied by deponent after carefully relocking the said safe and depositing the key thereof in his pocket; that about fifteen minutes thereafter deponent returned to Ms said office, and upon unlocking the said safe with the object of removing therefrom the said check for the purpose of deposit before the close of the bank, discovered that the said bundle of letters and other papers, together with the check, had been abstracted from the said safe. Deponent further says that the said Justh for about three months past has been engaged in intercepting letters addressed to and intended for deponent, and in circulating false and defamatory reports concerning him, with the hope to injure his business position, and has also combined against him for such purpose, and has also, at various times within the past three months, offered money to certain parties for information which could be used to the detriment of deponent, and that in the event of a litigation ensuing between the deponent and the said Justh, arising out of any proceeding from such conspiracy, circulation of libelous and slanderous reports, &c., the said letters, receipts and checks, would constitute very important evidence to deponent and injury to said Justh, which is well known to the latter. Deponent avers that he verily believes that if either the said Ackerman or his employer, the said Justh, were arrested for the crime before mentioned, the latter would place or cause to be placed the said letters, receipts and check in a position whereby they would be inaccessible, and thus render all chance of legal possession unavailable to deponent. Wherefore, process is requested by this deponent to search the office of said Emil Justh, known as 53 Exchange Place, and the house aforesaid, known as 117 West 13th-street, as aforesaid.
    “ (Signed) John T. Burleigh.
    “ Sworn to before me, this 18th ) day of October, 1871. j
    “ E. J. Shandlet, Police Justice.”

      Upon the back of this affidavit were the following indorsements:
    “Police Court, Second District—The People, &c., on the complaint of John L. Burleigh.
    “Emil Justh’s affidavit for search warrant, dated October 18th, 1871. S. Magistrate.
    “ Sergeant McComb, officer. Search warrant 20 October, 2 p. m., deft, discharged.”
    He then read in evidence the article complained of, which was as follows :
    “ Singular Complications in a Divorce Case.—
    On Wednesday last, John T. Burleigh, of Ho. 23 Deystreet, appeared before Judge Shandley, at Jefferson market police court, and stated that several important letters and a check for thirty dollars were stolen from his safe by a private detective named A. A. A ckerman, at the instance of Emil Justh, a banker, residing at Ho. 63 Exchange Place. Yesterday Sergeant McComb proceeded to the residence of Mr. Justh, to arrest him on the charge, but the latter refused to accompany him to the station, and when force was about to be used, presented a revolver at the officer’s head. Patrolman Tully witnessed the occurrence, and before the weapon could be discharged wrenched it from his hand. He was then conveyed to the station, where the letters were found in his possession. These letters, Justh alleges, afford proof of the seduction of his wife by Burleigh, and he desired to use them in proceedings for a divorce now pending. Justh was discharged from custody, and Judge Shandley retained the letters in his possession for the present.”
    He then read in evidence ihe following letter, which was proved to have been delivered:

      “ Law Office of D. S. Riddle,

      “§7 Park Row, H. Y.,
    “ 15th Nov., 1871.
    “Oeo. Jones, Ésq.,
    £ ‘ Prest. N. Y. Times Pub. Co.

    “Dear Sir: Mr. A. Ackerman has complained to us that the article published in your paper of the 21st of October, on page 4, and entitled ‘ Singular Complications in a Divorce Case,’ is totally false, untrue and malicious, and has desired us to commence suit against your company for libel.
    “Before we proceed in the matter, however, we shall be pleased to have you communicate with us in regard to a retraction of the offensive article, and listen to any suggestion you may propose looking to a redress of the grievance to which the plaintiff has ' been subjected.
    “ Respectfully,
    “ Dan’l S. Riddle,
    Att’y for Plaintiff.”
    He then proved that the article published in the New YotTc Daily Times was never retracted. Plaintiff’s attorney offered to prove by plaintiff that the . charge of his having taken any letters or money from Mr. Burleigh’s safe, or from his office, was wholly false and untrue.
    Offer objected to by defendant’s attorney, and excluded. Exception taken by plaintiff.
    Plaintiff rests.
    Defendant moved to dismiss complaint of plaintiff on the grounds—
    1st. That said publication was a privileged communication under the statute.
    2nd. Ho proof of malice.
    3rd. That the publication is a fair and true report of the affidavit.

      Motion was granted and complaint dismissed; to which, ruling plaintiff’s attorney excepted.
    The court ordered the exceptions to be. heard in the first instance at general term.

      D. S. Riddle, attorney and of counsel for plaintiff, urged:—I.
    Because the publication of the defamatory matter was not privileged, under the statue passed April 1, 1854, Burleigh’s affidavit was an ex-parte proceeding, and therefore not privileged (Stanley v. Webb, 4 Sandf. 28, 30 ; Matthews v. Beach, 5 Id. 264). These decisions were prior to the act of 1854, but that act is but delaratory of the common law .(Edsall v. Brooks, 2 Robt. 32). These decisions are supported by the wording of the act of 1854. The words of said act are, “ Of any judicial, legislative or other public official proceedings, &c.” The proceeding must be a public one ; whereas, this ex parte affidavit was private for the time being.
    II. The defamatory article is not a fair and true report of the statements and proceedings before the police-magistrate. Such report must not only be true—it must be fair. . If there are qualifying omissions or-additions, it is not fair. Here, the article sets forth, that Burleigh stated that the letters and check for thirty dollars were stolen by the plaintiff, and then speaks of Justh’s arrest, his showing fight, and the finding of these very letters on his person. This latter is matter of inducement, and in the minds of readers would go to confirm the theft charged against the plaintiff. But the proceeding before the magistrate, so far as in evidence here, is this: Burleigh in his affidavit says he has probable cause to suspect and does, suspect that the said property was felonously taken, stolen, &c., and then proceeds to give the grounds of his suspicion, while there is no evidence of Justh’s arrest; his showing fight and the finding of the letters on his person., Bow, a person reading Burleigh’s affidavit, with his grounds of suspicion, would say the chances a,re altogether that he was mistaken, and the plaintiff did not take the letters or money. Is this article clearly a fair and true report? Is there any doubt on that point ? If there is, it was a question of fact for the jury, and the court erred. Where there is any doubt the jury must determine. In Lewis v. Walters, 4 Barn. & A. 612, an action of libel similar to this, Abbott, Ch. J., says: “The defendant ought to have detailed and transcribed in the publication the evidence of the witness. If he had done so, his readers might then have judged for themselves. If a party is to be allowed to publish what passes in a court of justice, he must publish the whole case, and not merely state the conclusions which he himself draws from the evidence.”
    III. Where an article may be libelous it cannot be taken from the jury (Fray v. Fray, 17 C. B. [N. S.] 605). Here the court say: “We cannot take upon ourselves to hold that the letter in question can, under no circumstances, be libelous. The matter must go before a jury.” This was a demurrer (also, Teacy v. McKenna, 4 Irish, 374). In Alexander v. N. E. Railway Co., 11 Jur. (N. S.)part 1, p. 619, the published article stated that plaintiff had been sentenced to imprisonment for three weeks, while on the trial it appears the imprisonment was only for two weeks. Held that it was a question of fact for the jury, whether the ■defendant made a fair and true report of the proceedings in court (see also, Huff v. Bennett, 4 Sandf. 129, in this court).
    IY. The element of malice is at the bottom of a libel. In the eyes of the law, every malicious publication is a wrong, and like every trespass, gives ■ the injured party a right of action, but the law makes an •exception and says that a fair and true report of statement, &c., in judicial proceedings, shall not be deemed malicious, and therefore, not actionable. But a departure from a fair and true report, at once raises a question of fact for a.jury. Where there is a departure it is for the jury to say whether it is a substantial departure and the extent thereof.
    Y. There is no substantial difference between the defense of privileged communications and that of justification by showing the truth of the libel. The same-reason applies to both. The law in both presumes the ■ absence of malice, and therefore gives the injured party no action, both being damnum absque injuria. But where justification is pleaded, it must be as broad as the charge, that is, it must substantially meet the charge. Thus, the fact that the plaintiff had on one occasion smuggled, is no justification of the charge that he had carried on smuggling as a business (Still-well v. Barter, 19 Wend. 487). A proof of smuggling before the war is no justification of a charge of smuggling during the war., So where the charge was, that the plaintiff (a brewer) caused his malting establishment to be supplied with impure and unwholesome water, is not justified by the statement that the plaintiff’s establishment was supplied with such water (Fidler v. Delevan, 20 Wend. 57).
    YI. The foregoing citations show that the law holds the publisher of defamatory matter strictly to the rule made in his favor, and any appreciable departure therefrom starts a question of fact for a jury, so sensitive is the law as to the reputation of the citizen.
    VII. There was also a question of actual malice in this case. Before action was brought a letter was sent to the defendant, asking him to retract. This was refused. Did not this show malice? In Hotchkiss v. Olphant, 2 Hill, 515, the court says: “Where the defendant, when advised of his error,-hesitates to correct it, the case rises to one of preme iitated wrong, of settled and determined malignity toward the party injured.” The court of appeals held in Fry r. Bennett, 28 N. Y. 328: u Any act or language of defendant tending to prove malice on his part in the particular libel, may be proved.” But what is the use of proving it, if it is afterwards taken from the jury % Where during the trial the plaintiff offered to accept an apology and a . verdict for nominal damages if the defendant would withdraw his plea of justification, which he did not attempt to prove, and the defendant refused, it was held that this refusal was proper to be left to the jury with reference to the question of malice (Simpson v. Robinson, 12 Q. B. 511; S. C., 13 Jur. 187). So where the publisher of a libel, to whom complaint was at once made, and the falsity of the publication shown, delayed to retract until after suit brought, wherein he made full retraction, this notification and delay were held properly left to the jury as evidence of negligence, and a verdict for very large damages was not disturbed (Smith v. Harrison, 1 Fost. & F. 565.
    VIII. The nonsuit should be set aside and a new trial ordered, with costs to abide the event.

      Beardsley ds Cole, attorneys, and Hamilton Cole, of counsel for defendant, urged:—I.
    The dismissal of the complaint was correct, provided three things concurred, viz: that the publication was conditionally privileged ; that there was no proof of malice ; that the publication was a fair and true report of the affidavit put in evidence. The publication was conditionally privileged both at common law and under the statute of 1854 (Laws of 1854, p. 314; Townshend on Libel, die. 2 ed. 364). There is no distinction between a mere ex parte investigation before a magistrate and the regular proceedings in a court of law (Pinero v. Gtoodlake, 15 Law Times, 676; Ryalls v. Leader, 5 Law Rep. 1 Ex. 296 ; Wason v. Walters, Law Rep. 4 Q. B. 93; Lewis v.
      Levy, Law Jour. N. S. vol. 27, p. 282, part 2; Henderson v. Broomhead, 4 H. & N. 569; Ed sall v. Brooks, 17 Abb. Pr. 227; Townshend on Libel, &c. 2 ed. 374). Even though the publication of the affidavit would not have been privileged if made before any appearance on the part of the defendant, still so soon as he appeared and had an examination before the magistrate, the affidavit became a part of that regular judicial proceeding, and the privilege attached to the proceeding attached also to, the affidavit as a part of it. The fact that the character of a third person was affected by the affidavit does not affect the privilege (Ryalls v. Leader, Law Rep. 1 Ex. 296; Henderson r. Broomhead, 4 H. & N. 569). It was conceded by the plaintiff at the trial that the publication was conditionally privileged.
    II. There is no proof of malice, unless malice may be presumed from the fact that no notice was taken of the letter written to the defendant by the plaintiff’s attorney before the commencement of the action. To refute such an idea an examination of the letter is alone necessary.
    III. The publication was a fair and true report of the affidavit pub in evidence, and this, under the circumstances, was a matter of law for the court. To determine this question required merely a comparison of two written instruments. There was no ambiguity in the language. It then lay with the court to determine the relative weight of the words used. Even conceding that the question was properly one of fact for the jury, still in cases where the facts are so strong that if the j ury find against them, the court would be bound to set aside the verdict, it is the duty of the court to take the cause from the jury.
    IY. The exception taken by the plaintiff is untenable. The defense did not set up the truth of the allegations contained in the publication. Under the pleadings their truth or falsity was entirely immaterial. The exceptions should be overruled, and judgment ordered for the defendant, with costs.
   By the Court.—Speir, J.

The appellant’s counsel claims that the publication of the alleged defamatory matter contained in Burleigh’s affidavit was an éxparte proceeding, and therefore not privileged, relying chiefly on the case of Stanley v. Webb (4 Sandf. 28). In that case the plea of the defendants was that the publication was a true, fair and correct account of public judicial preceedings before a magistrate, and the plea contained the affidavit upon which the complaint against the plaintiff was founded ; and it further averred that other proceedings were pending before the magistrate, growing out of a complaint made by the plaintiff. The replication to this plea charged that the complaint was primary and original, and made ex parte in the absence of the plaintiff, and was false and libelous, and the defendant demurred. The question presented for the consideration of the court was whether the publication was privileged. After an examination of a large number of authorities, and giving many cogent reasons of public policy, the court held that where the publication of such proceedings was productive of good, and promoted the ends of justice, the publisher must find his justification, not in privilege, but the truth of the charges. In other words, the privilege was conditioned on the fact that the matter published should not be false or libelous, but a fair, true and correct statement, and without malice. This decision was made before the statute of 1854 was passed, and was concurred in by the full bench (Laws of 1854, ch. 130, § 1). This act was simply declaratory of the common law (Townshend on Blander and Libel, 2 ed. 364). As applied to this cáse, the principle may be stated as follows : Reporters, editors, and proprietors of newspapers are entitled to entire immunity for what they may publish of any judicial proceeding in their several places, and in the discharge of their respective duties, if it is a fair and true report thereof, except upon actual proof of malice in making such report; and malice is not to be implied from the fact of such publication.

This is the doctrine of the later English decisions. By them, independently of any statute, it is held that the publication of the proceedings upon a judicial trial, fairly reported, and without express malice, is not actionable.

The foundation of the principle seems to be that the public good requires that the proceedings in the courts of justice should be conducted openly. Pollock, Ch. B., in Ryalls v. Leader, Law Rep. (1 Exch. 296), discussing this subject, says: “We ought, in my opinion, to make as wide as possible the rights of the public to know what takes place in a court of justice and to protect a fair, tona fide statement of proceedings there.”

There is no distinction between a mere ex parte investigation before magistrates, and the regular proceedings in a court of law, and plaintiff cannot set up, in answer to the defense of privilege, that the libel complained of was a report of a mere preliminary investigation before a magistrate. Whatever may have been the distinction heretofore, it is abolished now (Peniro v. Goodlake, 15 Law Times Rep. 676 ; Wason v. Walter, Law Rep. 4 Q. B. 93 ; Henderson v. Broomhead, 4 Hurls. & N. 569; Perkins v. Mitchell, 31 Barb. 471).

In the case of Ryalls v. Leader (supra), the court say that proceedings held in jail before a register in bankruptcy under the bankrupt act, upon the examination of a debtor in custody, are judicial and in a public court.

The affidavit in question became a part of the regular judicial proceedings in a criminal suit by the People on the complaint of Burleigh. The defendant in the suit, Justh, was arrested and discharged. Without the affidavit of Burleigh, the record would not be complete. If fairly and truthfully published, the public had a right to know it. The plaintiff was a public officer, and the publication was for a justifiable purpose.

The fact that the character of a third person was affected by the affidavit does not affect the privilege (Henderson v. Broomhead, 4 Hurlston & Norman, 569 ; Ryalls v. Leader, Law Rep. 1 Ex. 296). It is held in these cases that no action lies against a party who in the course of a cause makes an affidavit in support of a summons taken out in such cause which is scandalous, false and malicious, though the person scandalized, and who complains, is not a party to the cause.

The only question remaining is, was the publication a fair and true report of the affidavit put in evidence ? Upon a careful examination of the affidavit and the publication complained of, I am unable to detect any discrepancy between them in the information conveyed by either. There is no ambiguity in the language. Indeed, the appellant’s counsel, in his argument, did not so much complain that the matter published was not true, as that it was not fair. The distinction in this case is not plain to my mind. He claimed, however, that the question should be submitted to the jury, whether the defendant had made a fair and impartial statement. As to this, the answer would be, anything that is true is fair. Under these circumstances, the construction of the libel is an unmixed question of law which the court above is competent to determine. In all civil suits where the question of libel arises solely upon the face of the publication, it is a question of law upon which the jury must follow the direction of the court (Matthews v. Beach, 5 Sandf. 256). Had the case been submitted the jury, and they had found for the plaintiff, the court would have been bound to set aside the verdict. As malice under the principle hereinbefore stated cannot be inferred from the mere fact, of publication, I see no ground for raising any presumption of malice in the case, unless it is to be presumed from the fact that no notice was taken of the letter written to the defendant by the plaintiff’s attorney demanding satisfaction before he began the action. This is no evidence of malice. It seems quite impossible to discover any malice in refusing to answer this letter, which calls for redress of a grievance which had not been inflicted.

The exception taken by the plaintiff to the ruling of the court on his offer to prove that the charge of his having taken any letters or money from Burleigh’s office, was false and untrue, is not well taken. The defense did not set up the truth of tho allegations contained in the publication—under the pleadings, their truth or falsity is immaterial.

The exceptions are overruled, and judgment is ordered for the defendant, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    MARY E. LOUNSBURY, Plaintiff and Appellant, v. ORLANDO B. POTTER, Defendant and Respondent.
    The plaintiff and defendant entered into an agreement in writing, dated June 3,1871, for the purchase and sale of certain lots of land on Eleventh-avenue and One-Hundred-and-Twenty-Seventh and One„-Huñdred-and-Twenty-Eighth-streets, in New York city, by the terms of which plaintiff was to deliver to defendant a deed in sixty ■ days from date of agreement. The deed was to be delivered on August 3, 1871, and the property was to be sold “free from all incumbrances." When the parties met to pass the title the defendant claimed that there was an assessment on the property for opening Riverside Park, amounting to one thousand six hundred and seventy dollars. Plaintiff denied her obligation under the contract to pay the same, and an adjournment was had. At the adjourned meeting plaintiff delivered deed, and defendant retained from the purchase money one thousand six hundred and seventy dollars.
    It appears from the papers that previous to the delivery of the deed there was no question raised as to the actual existence of the as- • sessment or lien, or as to its validity.
    Between the date of the contract and the passing of title the supreme court had made two orders, dated July 11, and July 21, 1871, respectively, purporting to confirm the report of Riverside Park commissioners, and consequently the assessment of one thousand six hundred and seventy dollars appeared upon the face of the title bri August 7, when the deed was to be delivered. Under these circumstances plaintiff delivered the deed, and defendant retained one thousand six hundred and seventy dollars, for the purpose^qf liquidating the supposed lien.
    Subsequently the orders above referred to were vacated, reversed and set aside by the general term of the supreme court, and new commissioners of assessment and-award in the Riverside Park matter appointed. Defendant, when he went to pay the supposed assessment of one thousand six hundred and seventy dollars, learned that it had been set aside, and did not pay the same.
    About a year after the appointment of the new commissioners they made their report, which was confirmed August 22, 1872. They assessed the property in question for two thousand one hundred and ninety dollars, and the defendant, owning the property at that time, paid the assessment.
    Plaintiff brings this action for money had and received by defendant, and seeks to recover the sum of one thousand six hundred and seventy dollars, the amount-retained from the purchase money to pay, what was supposed by the parties to have been an existing lien and incumbrance.

      Held l>y the court. The defendant received the money in question as security for; himself against loss, which might occur to him, by reason 1 of a debt of the plaintiff, being enforced as a lien against the property, about to be transferred to him by the plaintiff pursuant to the contract.
    The case is the ordinary one of a purchaser of real estate receiving money to pay a Ren for taxes or a judgment, which appears in the record, as a Ren against the property of the seller and received on the understanding between the parties, and the implied promise in law, on the part of the purchaser, to return the money to the seller, in case it appeared that there was no such lien, and the money paid to, or received by, the purchaser, for the payment of the lien, should not be paid by him.
    The extinguishment or cancellation of this lien, and the admitted fact that the purchaser never paid the assessment, and could not pay it, because of such extinguishment, gives to the purchaser the right to recover the amount paid to, or reserved by, the purchaser on account thereof.
    Upon another view of the case considered by the court, there was never a lien on these premises for the said one thousand sic hundred and seventy dollars. If the parties supposed there was, it was a mistake of fact. The defendant has obtained the plaintiff’s money without consideration, and not as a gift, but under a mistake.
    For a full review of the law and proceedings in the matter of assessments in New York for public improvements, and the cases relating thereto, see the opinion of the court.
    Before Freedman, Curtis and Speir, JJ.

      Decided January 31, 1874.
    The plaintiff brings this action for money had and received by the defendant. The referee gave judgment for defendant. The plaintiff appeals from the judgment.
    The parties on June 2, 1871, entered into a contract for the purchase and sale of the premises in question. The purchase money was twenty-five thousand dollars, and the deed was to be delivered in sixty days after the date of the contract. The parties met to pass the title, and the plaintiff was informed that there was an assesment on the property for opening Riverside Park, amounting to one thousand six hundred and seventy dollars. She denied her obligation under the contract to pay the amount, and an adjournment was had. At an adjourned meeting the deed was delivered, and the defendant retained from the purchase money the amount of the assessment.
    Between the date of the contract and the passing the title, the supreme court had made two orders dated July 11 and July 21, 1871, respectively, purporting to confirm the report of the Riverside commissioners, and consequently the assessment of one thousand six hundred and seventy dollars appeared on the face of the title August 7, when the deed was to be de-. livered.
    Subsequently the orders above referred to were vacated by the general term of' the supreme court, and new commissioners of assessment and award were appointed. When the defendant went to pay the supposed a ssessment, he ascertained that it had been set aside, and he did not pay it. The new commissioners made their report, which was confirmed August 22, 1872. The property was assessed at two thousand one hundred and ninety dollars, and the defendant, then being owner, paid the amount.
    When the parties met to pass the title they made the following memorandum:
    11 Amount of purchase money, $25,000.00
    “ Paid in cash at signing agreement, $500.00 “Amount of mortgage. .$15,150.00 ‘1 Interest from March 14,
    1871, to Aug. 3, 1871... 409.34
    --$15,559.34
    “ Assessment opening
    Riverside Park...... 1,670.00
    “Assessment opening
    127th street.......... 1,150.00
    “Allowed for land..... 180.00
    - $3,000.00 19,059.34
    “Cash to balance....... 5,941.34
    $25,000.00 $5,940.66 “ Settled according to this statement.
    O. B. Potter.
    Mary C. Louxsbuey.”
    The chief question in the case mainly depends upon the legal effect of the above . memorandum. The learned referee views it as an agreement whereby the gum of one thousand six hundred and seventy dollars —the Riverside assessment—was to be deducted from the purchase money and retained by the defendant, to discharge the assessment, and that he was entitled to hold that sum even though the lien had been otherwise discharged.
    This item of one thousand six hundred and seventy dollars—Riverside assessment—is the only matter in dispute between the parties. At the time of closing the contract of sale and purchase, they believed that this assessment was a lien on the premises, and that it belonged to the plaintiff to remove by paying the amount. She testifies that she left the money in defendant’s hands and he agreed to pay it. He admits that he went to pay it, and learned that the lien was vacated and there was to be a new assesment—that the plaintiff conveyed to him by deed all that she contracted for by the contract except the piece of land which was allowed for by the one hunred and eighty dollars—bound by the contract he agreed to take the conveyance according to the contract—that the assessment of one thousand six hundred and seventy dollars was on the property when the deed passed, and he supposed it was a valid assessment at that time.

      E. T. & G. G. Hull, for appellant, argued as follows :—I.
    The defendant received the one thousand six hundred and seventy dollars as agent of plaintiff, to apply the same to the extinguishment of the plaintiff’s supposed debt. This was plaintiff’s debt. It was her business to remove liens from the property. She constituted the defendant her agent for that purpose. The one thousand six hundred and seventy dollars was plaintiff’s money received by defendant. The defendant received the money in question as security against any loss which might come to him by reason of a debt of the plaintiff’s being enforced as a lien against the property about to be transferred to'him by the plaintiff. He received it just as he would have received the amount of any judgment or mechanic’s lien which appeared of record against the seller and as a lien against the property, and on the same understanding or implied promise in law to return it to the seller upon the production of a satisfaction-piece.
    II. ' The supposed debt or lien which the money in suit was to be applied upon was canceled and satisfied otherwise than by payment of the moneys set apart for the purpose. The general term “reversed, set aside and vacated” the orders purporting to confirm the assessment. It is the order confirming the report of the commissioners which makes an assessment a lien (Act of April 20, 1839; Laws of 1858, ch. 338, p. 574; 1 Wend. 262). If the lien was extinguished by the action of the general term, it is immaterial to inquire for what reason it was extinguished, whether for mistake of law or mistake of fact in the proceedings. It is the extinguishment of the lien which gives the plaintiff right to recover in this action.
    III. The defendant did not pay the one thousand sand six hundred and seventy dollars lien ; and if that lien was extinguished by the court, then it follows that the defendant can never pay it, and the money must revert to the plaintiff.
    IY. But if, as defendant claims, the one thousand six hundred and seventy dollars was allowed to him from the purchase money, if it was a reduction from the purchase money, if he received it in settlement of the alleged lien, then we claim on behalf of the plaintiff that the money was paid by mistake of fact, that there never was a lien or assessment upon the premises for one thousand six hundred and seventy dollars, or for any other sum, for opening Riverside Park, prior to August 22, 1872. The report -of the commissioners never was confirmed; the orders of July 11 and July 21 do not confirm it. There can be but otie order of confirmation. The court must confirm reports, or send them back for correction. This may be repeated until a report shall be made or returned in the premises which the said court shall confirm ; and such report, when so confirmed by the court, shall be final and conclusive. The court cannot confirm a report by piecemeal (Laws of 1813, § 178). The order of July 11 is not final, as it referred back part of the report. The order of July 21 supports this view, and shows that the court considered that the order of confirmation. Proceedings subsequent to the order of July 11 are all unconstitutional, irregular and void. The order of July 21 founded upon them is of no effect. The court cannot correct alleged errors, but must refer the report back to the commissioners for revisal (Laws of 1813, § 178; Laws of 1839, § 210; Laws of 1862, p. 966; Riverside Park Case, 4 Lans. 467). The court can lay down principles for the guidance of the commissioners, but cannot make corrections directly (see opinion of Brady, J., in Morning Side Park Case, 10 Abb. Pr. N. S. 338;. The supplemental report being signed by only two commissioners, is void (Art. 1, § 7, Constitution of 1846). Compensation “ shall be as ascertained by a jury, or not less than three commissioners'.”. The commissioners are a jury, and are governed by the same rules as a jury. They must all agree and unite in the report. Decisions declaring valid acts of only two commissioners are all prior to the constitution of 1846. It follows that there never was a lien on the premises for the one thousand six hundred and seventy dollars. If the parties supposed there was a lien on the premises, it was a mistake of fact (Gardner v. Mayor, &c. of Troy, 26 Barb. 428; Fleetwood v. City of New York, 2 Sandf. 475).
    Y. The defendants cannot retain the one thousand six hundred and seventy dollars to pay the assessment confirmed August 22, 1872. He received the title free and clear of incumbrances. He could not recover the amount of the assessment of August, 1872, in an action against plaintiff for a breach of covenant against incumbrances.
    VI. A conclusion that moneys agreed to be applied to a particular assessment may, if the particular assessment is vacated and one for a larger sum imposed, be applied to payment of the latter, is bad on its face.

      Frederick E. Betts-, for respondent, argued I.
    This action is one for money, alleged to have -been had and received by the defendant to the use of the plaintiff. The question is, does the law in the absence of any express promise to pay the money to plaintiff [because no. contingency was contemplated by which it could be payable] imply from the circumstances of the case a promise where none in fact exists. The only possible ground for a recovery which has been suggested by the plaintiff’s counsel is, that the money was paid by plaintiff to defendant by mistake. That both parties acted on the supposition that the assessment, the amount of which was deducted, was a valid assessment, and it having been subsequently set aside, the amount of it should be refunded. The theory is, that the original assessment of one thousand six hundred and seventy dollars was an entire nullity, and that fact appearing by the reversal of the order confirming it, an obligation to pay. the amount of it was created. This theory cannot be sustained. That the original assessment was not a nullity, is conclusively shown by the fact that the costs and expenses of laying it were treated as legitimately incurred, and were collected in the subsequent part of the proceedings. 1STo new petition for the appointment of commissioners was filed, but the new commissioners were appointed in the same proceedings (See Act of 1813, § 178, cited in Report, 12
      Rev. Stat. 408). The office of the new commissioners was simply to correct the mistakes of law of their predecessors and to re-compute the amount due from each landowner. If the plaintiff depends as a basis for recovery upon the fact that the old amount assessed, i. e., one thousand six hundred and seventy dollars, was a nullity, she must prove it as part of her case. She has not done so; on the contrary, the proof all tends to show that the original assessment was not a nullity, but that the proceedings were valid, and the method of computation and apportionment only was erroneous. Again, if the plaintiff relies upon the fact that the one thousand six hundred and seventy dollars was deducted by defendant and retained by him by mistake, if so, it is. part of his case to prove that that mistake was a mistake of fact and not a mistake of law. The former only would form any ground for recovery. Mistake of law cannot be made a basis of claim. If the assessment was not void ah initio but only erroneous by reason of an error in law as to certain property liable-to assessment, then any mistake of the parties as to the validity of the assessment was a mistake of law. only (Lyon v. Richmond, 2 Johns. Ch. 51, 60 : see especially Jacobs v. Morange, 47 N. Y. 57, 59). The burden is upon the plaintiff to show mistake of' fact.
    II. At the time the title passed the parties made a written agreement deducting one thousand six hundred, and seventy dollars from the purchase price by reason of the existence of the assessment. The words of this agreement were '•'■settled according to this statement.” The plaintiff seeks to add to this written agreement an implied clause, to read to this effect, “ Settled, &c., &c.;” “but if said assessment shall be vacated, then this matter shall not be settled, but the said O. B. Potter shall repay one thousand six hundred and seventy dollars.” The word “settled” signified that between the parties, that matter had an end. This action seeks to break up a “settlement.” The plaintiff ought not to interpolate into the agreement of settlement a clause which contradicts it.
    III. There was no “ mistake” made by the parties which justifies setting aside their deliberate settlement. To justify the setting aside of a transaction on the ground of mistake, it must appear that the party asking the interposition of the court would have acted otherwise had the facts been known. In this present case it appears by the testimony of the plaintiff herself that, though she wholly denied her liability for the assessment, valid or invalid, yet that she consented that the amount of it should be deducted, because she was obliged, owing to other arrangements, to carry the sale through. Though she wholly denied her liability, yet she consented to the reduction, without regard to the question of the validity of the assessment, because she wanted the balance of the money. Suppose it had then been known that the facts would be what they now are, viz: that, that particular computation of the assessment would be set aside and a larger one made, she at least would not have acted differently. The defendant doubtless might have demurred, but he asks no relief. There was entire mutuality between the parties at the time the deduction was made. The plaintiff by the deduction secured the carrying out of an agreement which would have otherwise failed, and she received the balance due her, which was all she expected. .The defendant retained an amount to meet an existing lien. He, the defendant, is the only person who is prejudiced by the subsequent proceedings, but he does not complain. Why then, can the plaintiff be heard, who has received all the money and obtained all the benefit she expected by her agreement of settlement ? Where mutuality exists at the time of inception of the contract, no subsequent changes can destroy the contract (Walton v. Carlson, 1 McLean, 120; citing Bugden on Vend. 194 ; Attorney- General v. Growen, 1 Ves. 218; 10 Ves. Jr. 315.
    IY. The assessment of one thousand six hundred and seventy dollars was, on August 3, 1871, an “incumbrance,” unless the proceedings by which it was" imposed was an entire nullity. As we have already seen, they were not a nullity, but were continued, and culminated in a larger assessment. The assessment of one thousand six hundred and seventy dollars was then, on August 3, 1871, “an incumbrance;” and the plaintiff having covenanted to deed her property “free from all incumbrance,” how can the very act by which her agreement was discharged preate a supplementary obligation on the part of the defendant to repay the sum because the incumbrance was subsequently removed.
    Y. Again: this action being for money had and received, is one which only prevails when, ex cequo et bono, it ought to prevail. Anything which renders it equitable for the defendant to retain the "money will prevent a recovery (2 Den. 91; Cow. Tr. § 305; Roth v. Schloss, 6 Barb. 312). o This rule has been applied in such cases as the following: An execution was issued in one county on a judgment docketed in another ; the defendant paid the money to the sheriff under the void execution. Held, he could not recover it back, because, though execution was void, the amount-was. due (6 Barb. 308). In the present case the particular amount computed as the assessment was erroneously assessed, not because some amount was not due, but because, owing to non-assessable property having been assessed, the amount of one thousand six hundred and seventy dollars, assessed on premises in question, was too small. The reversal of the order confirming the assessment was for" no defect that exempted the premises in question, or diminished their liability; on the contrary, the amount was increased. The plaintiff having received all the benefit she expected from the settlement, and the defendant having been not a gainer but a loser by the reversal of the order of confirmation, it is inequitable to still further mulct him for the same cause. Having settled, she cannot recover (Fleetwood v. City of New York, 2 Sandf. 475).
    VI. The liability of the premises in question has never been for a moment suspended. The foundation of the liability, viz: the proceedings for opening Riverside Park, which were a benefit to the property, were continuous proceedings from 1868 to 1872. The amount was the only thing not ascertained (see Rundell v. Lakey, 40 N. Y. 513).
   By the Court.—Speir, J.

From the oral evidence in the case, it appears that the parties substantially agree in the construction they put on the memorandum. It is admitted that .the defendant did not pay this assessment, but he claims that he paid an assessment of two thousand one hundred and ninety dollars confirmed August, 1872, after he had taken the title.

The referee admits that “strictly it was money due the plaintiff by the defendant, but retained by consent to discharge "this liability,” and he adds “that the agreement for the application of the sum of one thousand six. hundred and seventy dollars, made between the parties for a good and valuable consideration, was not discharged by the reversal of the order confirming the assessment, when followed by the imposition of a larger sum which has been paid.”

The case is simply this. The defendant received the plaintiff’s money to pay off and dischárge a lien on the premises she was about to convey to him. He does not pay it, as there is no such lien. I know of no principle, either in law or equity, which justifies the defendant in retaining this money, because he had paid it out in removing a lien of a larger amount on the same premises belonging to him, and which lien had been imposed a year or more after he took a conveyance of it. There is no consideration for detaining this money.

The defendant received the money in question as security for himself against loss which might occur to him, by reason of a debt of the plaintiff being enforced as a lien against the property about being transferred to him by the plaintiff. The case is the ordinary one of taking money to pay a lien for taxes or judgment which should appear in the record against the property of the seller, on the understanding or implied promise in law to return it. to the seller in case there was no such lien, and the money had not been paid.

The general term set aside and vacated the order purporting to confirm the assessment. The lien is only created by the order confirming the report of the commissioners (Act of April 20, 1839, Laws of 1858, ch. 338, p. 574; Matter of opening Seventeenth-street, 1 Wend. 262). This lien was extinguished by the action of the general term of the court, whether for mistake of law or mistake of fact in the proceedings, is not material. It is simply the extinguishment of the lien which gives the plaintiff the right to recover. The defendant never paid the assessment and he cannot pay'it.

If it be admitted that this sum was allowed to defendant from the purchase money—if it was' a deduction from the purchase money—if he received it in settlement of the alleged lien, I am of opinion that the money was paid in mistalce of fact; that there never was a lien for this sum of one thousand six hundred and seventy dollars, or any other sum, for opening Riverside Park prior to August 22, 1872. The orders of July 11 and 21,1871, did not confirm the assessment.

There can be but one order of confirmation. In these proceedings a conrt acts only in the sphere of a limited jurisdiction (Rev. Laws of 1813, § 178). On

coming in of said report signed by the commissioners or any two of them, the said court shall, by rule or order, after hearing any matter which may be alleged against the same, either confirm the said report or refer the same to the same commissioners for revisal and correction, or to new commissioners to be appointed by the said court to consider the subject matter thereof, and the said commissioners to whom the said report shall be so referred shall return the same corrected and revised as a new report, to be made by them in the premises to the said court, without unnecessary delay, and the same, upon being so returned, shall be confirmed or again referred by the said court in the manner aforesaid, as right and justice shall require, and so from time to time until a report shall be made or returned in the premises which the said court shall confirm, and such report, when so confirmed by the said court, shall be final and conclusive.”

The language is in the alternative,—the court shall either confirm, or refer back to the commissioners, for revisal—one or the other- -it cannot do both, and cannot confirm a report by piecemeal. The order of July 11 was referred back to the commissioners for revisal and correction, by increasing the amounts of awards to the parties who were entitled, by naming such persons and giving the several amounts which the commissioners should allow to each. The order of July 21 takes this view, treating the former order as an order to refer back, and not an order of confirmation.

The statute above recited clearly limits the jurisdiction of the court, and if it actually send the report back it has no authority to confirm. The order, therefore, is irregular, and absolutely void, and the order of July 21, founded uppn the proceedings, is of no effect. The supplemental report is not the commissioners’ report, but Judge Barnard’s, and the commissioners intimate as much in their report. The court cannot correct errors, but must refer back to the commissioners, who alone have authority to revise (Rev. Laws of 1813, § 178; Laws of 1839, § 210; Id. 1862, p. 966 ; Riverside Park Case, 4 Lans. 467). The court can laydown principles for the guidance of the commissioners, but cannot make corrections directly (Morning Side Park Case, 10 Abb. Pr. N. S. 338, Brady, J.). The report is signed by only two of the commissioners in violation of article 1, section 7, of the constitution.

“When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury”, or by not less than three commissioners appointed by a court, of record, as shall be prescribed by Jaw.” •

It follows that’there never was a lien on the premises for one thousand six hundred and seventy dollars. If the parties supposed there was, it was a mistake of fact. The defendant has obtained the plaintiff’s money without consideration, not as a gift, but under a mistake (Gardner v. Mayor, &c. of Troy. 26 Barb. 423 ; Martin v. McCormick, 4 Seld. 331; Hitchcock v. Giddings, 4 Price, 135 ; Fleetwood v. City of New York, 2 Sandf. 475).

In either view of this case I am unable to sustain the decision of the learned referee. The judgment appealed from should be reversed, the order of reference vacated, and a new trial granted, with costs to abide the event.

Freedman and Curtis, JJ., concurred.


author: Br the Court.—Speir, J.

text:
    ARTHUR T. WHITE, Plaintiff and Appellant, v. LEWIS MEALIO, et al., Defendants and Respondents.
    A lease that provides that the landlord may at reasonable hours in the daytime enter the premises, to examine or to make such repairs and alterations therein as shall be necessary for the preservation thereof, or of the building, gives a clear right and authority (in case the excavation of the adjoining property threatens injury or destruction to the building or premises leased), to enter the premises and shore-up and strengthen the same, by running large pieces of timber known as “ needles ” through the basement to support the floor of the store occupied by the tenants.
    And in such case the landlord is not liable in damages to the tenant, for an interruption to business, &c., unless it appears that the work was done hi an unskillful and negligent manner (Turner v. McCarthy, 4 B. D. Smith, 247).
    A landlord is under no obligation to repair or protect a tenant from the consequences of the lawful acts of the owners of adjoining buildings, unless he has covenanted so to do; nor does the act of 1855, ch. 6, create any such delivery (Howard r. Doolittle, 3 Duerr, 464; Sherwood ®. Seamen, 2 JBosw. 127).
    Before Freedman, Curtis, and Speir, JJ.

      Decided January 31, 1874.
    Upon a judgment for dismissal of the complaint, exceptions ordered to be heard at the general term in the first instance. The facts and exceptions in the case appear fully in the opinion of the court.

      George Carpenter, for appellant, argued:—I.
    The plaintiff proved a good cause of action against .defendants, and the court clearly erred in dismissing the complaint.
    II». The clause in the lease, that the tenant (the plaintiff, “will uermit the landlord or his agent to enter the premises at reasonable hours in the daytime, to make such repairs and alterations therein as shall be necessary for the preservation thereof, or of the building,” referred only to ordinary repairs or alterations, and cannot fairly be construed so as to entitle the landlord to occupy the demised premises for any length of time he may deem proper. The clause itself shows that the tenant was not to be deprived of his premises, for the landlord was only to have the right to “ enter at reasonable hours in the daytime, to make such repairs or alterations as shall be necessary.” The evidence of the plaintiff shows that the defendants had the almost exclusive use of his basement, for which they compelled him to pay rent for eight weeks, and that for the purpose of bracing up their store floor. There is no pretense in the answer or on the part of the defendants that they claimed the right, or placed said “needles” in plaintiff’s premises under or by virtue of said clause in said lease; on the contrary, it would appear that they well understood that they had no such right, and bargained with plaintiff for the privilege.
    III. The defendants did not prove, or attempt to prove, that it had become necessary to make any alterations or repairs in order to preserve the building, or that in order to make such alterations or repairs, it was necessary to enter the plaintiff’s premises at all. It would seem that the “needles” were put in plaintiff’s portion to suit the defendants’ own convenience.
    IY. Even if the defendants had the right to enter the plaintiff ’ s premises, they only had such right at reasonable hours in the daytime, and only then when it was necessary to make repairs and alterations. The plaintiff disputed that it was necessary, and refused to allow the premises to be occupied with the “needles.” The defendants then, in consideration that the plaintiff would consent and allow the beams or needles to come in for the time they wished, made the agreement referred to. The consent of the plaintiff, and the withdrawal of his opposition, and the stipulation in regard to the time the needles might remain, and his peaceable consent that his business might be interfered with, and the whole of his basement virtually occupied with the meedles, was an abundant consideration for the agreement proven.
    V. Even if it was necessary, and the defendants had the right to enter the premises under the clause in the lease (which is denied), they clearly waived it by entering into the new agreement with plaintiff.

      Joseph 8. Bosworth, for respondent, argued:—
    I. There is no proof that the defendants caused the work to be done, and the objection was made at the trial, partly based on the absence of such proof (Clare v. National City Bank, 14 Abb. Pr. N. S. 326).
    II. Even if it had been so shown, the contractor would alone be liable for the trespass, if any had been committed (Blake v. Ferris, 5 N. Y. [1 Seld.] 48 ; Pack v. Mayor, &c., 8 Id. [4 Seld.] 222 ; Kelly v. Mayor, &c., 11 Id. [1 Kern.] 432). The relation of master and servant did not exist between the workmen and the defendants, who appear to have given them license (Benedict v. Martin, 36 Barb. 288).
    III. A landlord, in the absence of an express covenant, is under no obligation to repair, or to protect his tenant from the consequences of the lawful acts of the owners of adjoining premises, in excavating them to such depth as would endanger the stability of the demised premises. Laws of 1855, ch. 6, has not created any such liability (Sherwood v. Seaman, 2 Bosw. 127).
    IV. The letting implied no obligation by landlord that the premises shall be, or continue to be, fit for the use for which the tenant designed them, or even that they are or shall be teriantable (Doupe v. Grennin, 37
      How. Pr. 5; Cleves v. Willoughby, 7 Hill, 90; Witty to. Matthews, Abb. Law Jour. [Nov. 22, 1873, p. 329], Court of Appeals).
    V. If the work had been even done by order of the landlord, yet where the lease reserves to the lessor the right to enter to make repairs, he is not liable in damages for interrupting the business of the lessee or otherwise, in the exercise of such right, unless it is shown that it was done in a wanton, unskillful, or negligent manner (Turner v. McCarthy, 4 E. D. Smith, 247).
   Br the Court.—Speir, J.

The plaintiff occupied the rear part of the basement with entrance on Canal-street, of building No. 416 Broadway, N. Y., as a paint shop, under a lease from the defendants, for one year from May 1, 1866.

The building was shored up in February, 1867, on account of an excavation made on the adjoining lot, No. 414 Broadway. The plaintiff claims that the beneficial use of the basement was impaired by the shoring, and claims damage for the excess of time during which the wooden needles remained, beyond that which he consented to. The defendants did not own the demised premises, but were themselves tenants. The lease to plaintiff authorized defendants to repair, alter,

. and preserve the building.

On motion of defendants’ counsel, the judge dismissed the complaint. Exceptions to be heard in the first instance at general term.

The lease to the plaintiff authorized the defendant or his agent to enter the premises to examine, or to make such repairs and alterations thereon as shall be necessary for the preservation thereof.

Under the covenant contained in the lease, the defendant had a clear right to enter the premises in case the excavation of the adjoining property threatened either their injury or destruction, and in the exercise of this right he is not liable in damages for interrupting the business oE the lessee or otherwise, unless it be shown that it was done in a wanton, unskillful, or negligent manner (Turner v. McCarthy, 4 E. D. Smith, 247). There was no evidence showing that the defendants or their agents made the repairs in so unskillful and negligent a manner as’ to subject the plaintiff unnecessarily to loss and damage. On the contrary, it is apparent from the testimony, that what was done was necessary for the safety of the building, that the insertion of the needles was a proper and precautionary measure to prop up the building while the excavation was going on in the adjoining premises.

The landlord was under no obligation to repair or protect his tenant from the consequences of the lawful acts of the owners of the adjoining premises in excavating them to such depth as would endanger the stability of the demised premises. Such liability can only be created by express covenant to that effect (Howard v. Doolittle, 3 Duer. 464 ; Sherwood v. Seaman, 2 Bosw. 127). Nor does the act of 1855, ch. 6, create any such liability.

Nor is there any obligation resting on the landlord, implied by the lease, that the premises shall be or continue to be fit for the use for which the tenant designed them ; or even that they are or shall be tenantable. In Witty v. Mathews (52 N. Y. 512), the court (Folger dissenting) expressly decide that the obligation of the landlord to repair demised premises rests solely upon express contract, and that a covenant to repair will not be implied, nor will an express covenant be enlarged by construction (citing Mumford v. Brown, 6 Cow. 475 ; Arden v. Pullen, 10 M. & W. 321).

Thus far I have considered the case on the theory that the defendants caused the work to be done, and I cannot see that the plaintiff has a cause of action. But there is no proof in the case that he either did or caused the work to be done. The most that appears is, that some one of the defendants made some promises to the plaintiff which were without consideration and void. Even if it had been shown, the contractor would alone be liable for the trespass if any had been committed. 0 Nor did the relation between master and servant exist between the workman and the defendants, who appears to have given them the license (Blake v. Ferris, 5 N. Y.[l Seld.] 48 ; Pack v. Mayor, &c., 8 N. Y. [4 Seld.] 222; Kelly v. Mayor, &c., 11 TV. T. [1 Kern.] 432 ; Benedict v. Martin, 36 Barb. 288).

The exceptions should be overruled and judgment rendered for defendants, with costs.

Freedmah and Curtis, JJ., concurred.


author: By the Court. —Monell, Ch. J.

text:
    MARY EMMA READING, Plaintiff and Respondent, v. CHRISTOPHER GRAY, Defendant and Appellant.
    I. Mistake oe Law.
    'Money voluntarily paid under, cannot be recovered back, n. Contract.
    1. Construction of by parties.—Estoppel.

    A. Where the parties (there being no fraud or concealment, or mistake or ignorance of facts) themselves put a construction on, the terms of the contract, such construction must control in the nature of an estoppel. But the parties can review their decision- and arrive at a different construction, and if that different conclusion be acted on, it will in its turn become conclusive-unless the parties review it.
    2. Construction by the court.—Intent of parties, a. Such intent must be considered.
    3. Interpretation of particular words.

      a. The word “ from” may be read “at.”
    IH. Incumbrances.—Covenant Against, in Deed.
    1. When satisfied,.

      a. By retention out of the purchase money of a sufficient sum to pay the incumbrance, satisfies the covenant as long as- the retention continues.
    2. When revived.

      a. It is revived by a return of the money, although such return be voluntary.
    3. When money retained for an incumbrance can be recovered by parties, a. After the grantor has paid off and satisfied the incumbrance.
    4. Damages for b'each of.

      a. Until actual payment of the incumbrance by the grantor he can recover only nominal damages. .
    1. The case of Rector of Trinity Church ». Higgins, 48 M T. 533 distinguished.
    IV. Maxims.

      1. Ignorantia . . . facti excusat. Ignorantia juris non-excusat, applied.
    V. New Trial.—Nominal Damages.
    1. A new trial will not be granted to enable a party to recover nominal damages.
    VI. Application of these Principles.
    1. In a contract for the sale of real estate, dated June 3, 1873, the vendor agreed to convey, “free from all incumbrances from the date of this contract.” The contract called for a delivery of the deed on August 33: On August 5, a judgment was recovered against the husband of the vendor, and on July 33, an assessment on the property was duly confirmed. The deed containing an unqualified covenant against incumbrances was delivered August 37. On its delivery, the vendee was, with the vendor’s consent, allowed to retain a certain sum as an indemnity against the judgment and assessment. Shortly after the delivery of the deed, the parties met to determine which of them should, under the agreement, pay the assessment, when the vendee (knowing all the facts bearing on the question), said the assessment was to have been paid by him, that his understanding, and what he meant to express was, that “from the date of the contract, anything that came on the property was for him to pay.” And he thereupon drew his check for the amount of the assessment and delivered it. The vendor, having paid off and satisfied the judgment, brought an action to recover from the vendee the amount retained by him therefor. Defendant, after denials sufficient . to put the plaintiff to proof of her cause of action, averred that the assessment remained unpaid, that he had paid back of the money originally retained by him, so much that sufficient did not remain to satisfy the assessment, and Claimed to recover of plaintiff the difference between the assessment and interest thereon, and the amount remaining in his hands.

      Held, 1. The payment back being expressly on account of the assessment, plaintiff was entitled to sustain the action for the money retained as an indemnity against the judgment.
    2. That the affirmative facts alleged by the defendant, if they formed any defense, only constituted a defense by way of counter-claim.
    3. That those matters constituted no defense, by way of counter-claim or otherwise, except a counter-claim for nominal damages.
    4. That the judgment for plaintiff, entered on verdict for the full amount claimed by her, should be affirmed.
    Before Monell, Oh. J., and Freedman, J.

      Decided February 28, 1874.
    Appeal from a judgment and an order denying a motion for a new trial.
    The parties made a written agreement, the plaintiff to sell and convey to the defendant certain premises in this city. The agreement contained the following:
    “And the said parties of the first part, on receiving such payment, at the time and in the manner above-mentioned, shall, at their own proper costs and expense, execute, acknowledge and deliver to the said party of the second part, or to his assigns, a proper deed for the conveying and assuring to him or them, the fee simple of the said premises, free from all incumbrances from the date of this contract.”
    At the time of the delivery of the deed, the defendant was allowed to retain of the purchase money, the sum of three hundred and fifty dollars,-as an indemnity against the lien upon the premises of a certain unsatisfied judgment. The judgment was afterwards satisfied of record, and this action was to recover the deposit.
    The defendant alleged that the deed, delivered by the plaintiff to him, contained an unqualified covenant against incumbrances. That at the delivery of the deed, the premises were incumbered by an assessment, amounting to three hundred and sixty-one dollars and fifty-four cents. That the defendant, with the consent of the plaintiff, retained out of the purchase money, the smqiFof seven hundred and twenty-three dollars and fifty-four cents, as an indemnity against the aforesaid judgment, and the said assessment. That soon thereafter, and while said assessment was unpaid, the plaintiff induced the defendant to return to her the sum of three hundred and seventy-three dollars and fifty-four cents, part of the indemnity money; that the plaintiff has not paid the assessment, and it remains a lien on the premises.
    The defendant further alleged, as a counter claim, the breach of the covenant in the deed, against incumbrances, by reason of the unpaid assessment.
    It appeared that after the delivery of the deed, the parties met to determine which of them, under the agreement, should pay the assessment. A witness for the plaintiff testified, that at such interview the defendant was asked whether this assessment, which was levied on July 2; 1872, and which had been allowed to him, was to have been paid by him or by the plaintiff; he at once said that it was to have been paid by him ; that he was an honest man and wanted to do what was right; he "then and there sat down and drew his check for the amount of the assessment which had been allowed to him three hundred and seventy-three dollars and fifty-four cents ; the plaintiff’s share of the assessment was three hundred and sixty-one dollars and fifty-four cents; the other twelve dollars was on the other lot; the judgment was satisfied of record on February 10.
    There was some contradiction of this by the defendant ; but he stated in his testimony, that he had said at the interview alluded to, “that from the date of the contract, anything that came upon the property, belonged to Mm to pay.” The counsel of the-defendant,• who was present at the same interview, testified that he said to the defendant to -this effect: “Mr. Gray, a question has arisen in regard to which of you parties should pay the expense of this assessment, and I have thought it best to send to you and let you state" yourself what was your intention in making this contract in regard to who should pay this assessment; ” he answered immediately, “ that Ms understanding, and what he meant to express, was that he should pay all the assessment from the time of the date of the contract ; upon which a check was drawn and he signed it, and it was delivered to you, and you all went away with the exception of Mr. Gray, who remained a few moments afterwards.”
    The assessment had been confirmed on July 22, 1872, which was between the dates of the contract and deed.
    The was some dispute in the evidence, as to the purpose for which the three hundred and fifty dollars was retained by the defendant.
    The case was submitted to the jury, under the charge of the court. They were instructed, first, to determine concerning the three hundred and fifty dollars retained by the defendant; and if they found that it was retained as an indemnity against the judgment, with a promise to return it when the judgment was satisfied, the plaintiff, having satisfied the judgment, was entitled to recover the amount.
    They were further instructed in respect to the counter-claim, that “if the defendant was induced improperly or fraudulently, or by any mistake or wrong or deception practiced upon him in any way or shape to return this money, it being rightfully bis, he is not to be prejudiced by any fraudulent act, .deception or wrong. But if, for the purpose of acting in good, faith, and carrying out what the parties themselves believed to be the real interpretation of the contract, and to avoid difficulty, he believed it his duty as an honest man to pay this money, he is bound by that act, and is not entitled to get the money back, because the law is a healer and pacifier of difficulties, and when parties meet, and in good faith make their own interpretation, and pass money in respect to it, and carry it out, the law gives effect to it. The constant daily transactions of life show the construction of similar contracts and obligations, and if they could be disturbed afterwards, great wrong might arise, and litigation to a considerable extent. ’
    “ Hence, if in good faith, this money was, without any fraud or deception practiced upon the defendant, returned by him to the plaintiff, then' the defendant is barred by that, and you must find for the plaintiff.
    “But if you can find that there was any bad faith or fraud, or deception, or wrong practiced upon the defendant, then your vérdict will be for the defendant, and under his counter-claim, it will be your duty to give him a verdict for the sum of forty-six dollars and forty cents. If on the other hand you find that it was a transaction in good faith, putting an interpretation ■ upon it such as was agreed to by the parties, and that this three hundred and fifty dollars was deposited a& indemnity against the judgment in the marine court,, then your verdict will be for the plaintiff in the sum of three hundred and fifty dollars, with interest amounting to three hundred and sixty-eight dollars and thirty-eight cents.”
    Defendant’s counsel asked- the court to charge that in case the jury believed that this was a misinterpreta- , tion, or a mistake by any of the parties in construing the "contract, they have a right to take it into consideration ; that if the defendant mistook his rights, and misinterpreted the contract, he could recover.

      The court declined to charge further than he had charged, and the defendant accepted.
    The defendant appealed from the judgment and order.
    A motion for a new trial was denied.

      J. if. Budd, attorney, and B. A. Mott, of counsel for appellant, urged
    was the duty of the plaintiff to pay the assessment, and it having been fully shown by the testimony on both sides, that the money which she claims to have paid in full satisfaction of such liability was demanded by and paid back to her by defendant, the justice should have directed the jury, as requested, to find a verdict for the amount of such assessment, less the three hundred and fifty dollars retained by defendant. The language of the contract is plain ; it required no interpretation ; the word “ from ” is synonymous with “ from and after,” and when read in conneption with the delivery of the deed, means “down to” or “at the time of” the delivery of the deed (Keene v. Towsley, 45 Barb. 150). That such was the understanding of all the parties is proved.
    II. The withdrawal of the money did not relieve the plaintiff from her liability, as above stated. The return of the money by defendant was without any consideration, and it cannot be inferred that he intended to waive the express terms of his contract, and the covenants in his deed. In fact, the testimony clearly repels any such inference (Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. Union Bank, 3 N. Y. 230; Mayor v. Erben, 38 Id. 305 ; Kingston Bank v. Eltinge, 40 Id. 391; Chapman v. City of Brooklyn, Id. 372.) The money was returned by defendant through mistake, and the plaintiff could not be injured by repayment of the amount to defendant. All the cases show that when such repayment has been denied by the court, the party would be injured. or prejudiced in some manner; but in. this case the plaintiff, by the covenants in her deed, is liable to pay this assessment as an incumbrance, and parol evidence would not be permitted to explain away that liability. The return of the money being a mistake of fact, an action by defendant to recover it back would lie (Rheel v. Hicks, 25 N. Y. 289 ; Mayor, &c. v. Erben, 40 Id. 372; Kingston Bank v. Eltinge, Id. 391.) The contract has been interpreted by each of the parties in succession. 1. On August 27, when all the parties and their counsel left the money with the defendant to pay the assessment, &c. 2. On August , when part of the -money was returned. 3. The plaintiffs admit that “there is an ambiguity in the language of the contract “that it was bungling and rather obscure.” 4. The defendant being the last to interpret the contract, ought not to be precluded from having the law interpret the contract, concerning which so many lawyers and parties had differed. 5. Especially when he says he never intended to waive any of his rights by complying with plaintiff’s request to return the money. The rule of law is well established that’ to prevent-money being paid back to the payer, it must appear to be paid with full knowledge that it ought not to be paid (Waite v. Leggett, 8 Cow. 195; Kingston Bank v. Eltinge, suptf).

    III. Whether the return of the money was by reason of a mistake of fact or of law on the part of the defendant, the agreement and deed by reason of the covenants fix the liability of the plaintiff to pay the assessment,. and until the same is actually so paid by tl^e plaintiff, this liability cannot be discharged, and the deposit money left in possession of the defendant should be retained by him. This action is brought to recover a portion of the money deposited, and the plaintiff has shown that she voluntarily left it with the defendant as security against two liens, but one only of which has been removed.

      IY. As a .separate proposition distinct from the parol testimony in the case, the court erred in not granting the motion, as the assessment on the property was an incumbrance or charge before the date of the agreement, although not confirmed until after its date. The plaintiff, therefore, should have paid it in compliance with the very terms of the agreement (Rundell v. Lakey, 40 N. Y. 513 ; Keene v. Towsey, 45 Barb. 150; Post v. Leet, 8 Paige, 336 ; 4 Mass. 627). The assessment was for a sewer, a permanent improvement to the land—rendering it more valuable. The law presumes the defendant knew of such improvement—in fact he did, and by reason of it, was induced to give more for the land than he otherwise would have given • —and also that the owner added the value thereof to his price. . The liability for an assessment is fixed when, the work is done—and the delays in the confirmation of the assessment pertain to the city5 s right to enforce the collection of the assessment (Cases last cited).
    Y. The judgment appealed from should Ice reversed.

      J. L. Slosson, attorney, and of counsel for respondent, urged:—I.
    The counter-claim is based upon the breach of the covenant against incumbrances in plaintiff’s deed, the breach alleged being the very assessment to pay which the money was paid and received at the time of the delivery of the deed. As to that assessment, that covenant was absolutely satisfied and discharged by that payment.
    II. The defendant having repaid the money voluntarily and without any fraud or deception practiced upon him—as to which there is neither evidence nor even pretense, is estopped by his deliberate act. His positive admission, followed by his immediate repayment of the. money in accordance therewith, concludes him.
    III. The judgment should be affirmed.
   By the Court. —Monell, Ch. J.

The right of the plaintiff to recover the three hundred and fifty dollars, retained by the defendant, cannot be successfully questioned. Apart from the finding of the jury, which, upon conflicting evidence, must be regarded as conclusive, the facts present a clear case of liability on the part of the defendant. It cannot be doubted that he retained the money, as an indemnity for the judgment, with an implied, if not an express promise to return it, upon the judgment being satisfied of record. The plaintiff soon afterwards caused the judgment to be so satisfied, and there is no valid pretense for the defendant’s withholding the amount, unless he has a good cause of action growing out of the facts constituting his counter-claim.

The retention of the money to pay the assessments, was upon the assumption of both parties, that under the contract the burden should fall upon the plaintiff. At that time—the time of the delivery of the deed—such was the construction of the contract by the parties. They believed, as a matter of law, that the words in the contract, “free from all incumbrances from the date of this contract,” imposed upon the vendor the obligation to remove all incumbrances, as- well after the date of the contract as before.

Accordingly the deed, with an unqualified covenant against incumbrances, being about to be delivered, it was mutually agreed, that the vendee should retain out of the purchase money, a sufficient sum to meet the assessment.

There is no doubt the parties, mutually and alike, understood the facts. They each knew the precise terms of the contract, and that the assessment had been confirmed by the proper authority, intermediate the execution of the contract and the delivery of the deed ; and they are presumed to have known, as matter of law, that the assessment did not become an incumbrance upon the property, until its actual confirmation by the proper authority."

Under these circumstances, the parties undertook to determine for themselves, their legal rights and obligations ; and they arrived at the conclusion, that under the terms of the contract, the vendor was bound to pay the incumbrance.

The effect of the retention of the money by the defendant, was to satisfy the covenant in the deed. The contract, by the execution and delivery of the deed, had become merged in the latter ; and as the covenant against incumbrances in the latter was unqualified, it left a present liability of the' grantor (plaintiff) upon that covenant. But retaining of the plaintiff’s money, a sufficient sum to pay and discharge the incumbrance, was so far a satisfaction of it, "as to deprive the vendee of all right of action, for any breach of the covenant in the deed, by reason of the existence of the incumbrance.

Such being the effect of the retention of the money by the defendant, it became absolutely his to do with as he pleased. He could discharge the incumbrance ; but if he omitted to do so, he could have no recourse to the plaintiff’s covenant.

Nor was the plaintiff, after such payment to the defendant, under any obligation to discharge the incumbrance. He had paid it, in effect, by the arrangement with the defendant, and thereby satisfied his covenant.

Subsequently the parties met, under a claim made by the plaintiff, that there had been an error in the construction of the contract, and, in effect, reviewed their former conclusion; and then, as found by the verdict, agreed upon an interpretation of the agreement, which cast the burden of the incumbrance upon the defendant.

The was no mistake concerning the facts, necessary to be known by either party. They1 each knew, as before, the precise terms of the agreement, and the time the incumbrance had become a lien upon the premises; and then they determined, as matter of law, that the burden should fall upon the vendee.

Thereupon the defendant voluntarily returned the amount to the plaintiff.

The recovery of this sum by the defendant, upon the counter-claim set up in his answer, if it can be recovered at all, is not upon any ground of a breach of the covenant against incumbrances, which ground I will presently examine, but upon the ground of its having been paid thrugh an excusable mistake.

The maxim of the law is “ Ignorantia . . . facti excusat,—Ignorantia juris non excusat.'

There is no pretense that the' payment was. made in ignorance of any fact, it was essential the' parties, or either of them, should know, to predicate their judgment. But with knowledge of all that was necessary of the existing facts, the parties, without deception or fraud, and in entire good faith, saw fit to construe and interpret for themselves, the contract they had made, and to decide from its terms, and their own knowledge of their intentions, which of them should remove the incumbrance.

There may have been a mistake of law. Under the somewhat uncertain and. ambiguous phraseology of the contract, it may not. have been clear, what precisely was intended; and a literal reading would, perhaps, require, that the vendor should pay all incumbrances, which might become liens after the date of the contract. Or, construed by the probable intention of the parties, it might mean to bind the vendor against such incumbrances only, as had become liens at or prior to the date of the contract.

In this doubt of the true meaning of the words employed, the parties themselves had recourse to their own knowledge of their intention, and by such knowledge, put their construction upon the words. And acting upon such construction, the money was paid.

There was no. mistake in fact, and there is no remedy for a mistake of law.

But I do not think there was any mistake of law. Construing the agreement by the intention of the parties, it is evident that it was meant,, that the vendor should be responsible only for such incumbrances as were liens at the date of the contract; and that the vendee should take title subject to such as might accrue afterwards. That would be a reasonable construction, and such as would conform the contract, to the usual understanding between parties, on the sale of real estate, where time is required by the purchaser, for the examination of title.

The effect, as has been seen,- of the retention by the defendant of the amount of the assessment, was to satisfy the covenant in the deed, at least for such time as he retained the money. But, I think,-when he re- . turned it to the plaintiff, although it was a voluntary payment, it revived the covenant in the deed, so that, if the defendant had paid the assessment, he might have resorted to the covenant for redress; with what result, however, would depend upon the determination of several questions, not necessary to be examined here; among them, whether, .upon a construction of the contract, the plaintiff was to pay the assessment; and whether the contract was merged in the deed.

But there is an insuperable difficulty in the defendant’ s recovering at all, or at least more than nominal damages, for a breach of the covenant. He has not paid the assessment.

It is, I believe, well settled, that until actual payment, the covenantee can have* only .nominal damages (Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Id. 105; Standard v. Eldridge, 16 Id. 254; Giles v. Dugro, 1 Duer., 331, 335; Grant v. Tallman, 20 N. Y. 191).

The only departure, or perhaps I should say apparent departure, from the rule above stated, is the case of Rector, &c. of Trinity Ch. •». Higgins (48 JY. Y. .532), where it was héld, that a lessor might recover an assessment laid upon the demised premises, which the lessee had covenanted to pay, notwithstanding the lessor had paid nothing. But that decision was on the ground that the covenant was affirmative and not collateral; and a distinction is drawn between a promise and an indemnity.

That case, however, does not disturb the unbroken current of decision, fixing the measure of damages for a breach of the covenant against incumbrances.

Inasmuch, therefore, as at most, the defendant could be allowed only nominal damages, it would not be ground for granting a new trial ..(Rundell v. Butler, 10 Wend. 110).

So far as there was any dispute in the evidence, the defendant had the benefit of having it settled by the jury. The jury were allowed to find, had they seen fit to do so, that some fraud, deception or unfairness was practiced upon the defendant; and had they so found, they were instructed by the court, that the defendant should have their verdict. This was quite as favorable to the defendant, as, upon the evidence, he had the right to expect. And having had the question of fact found against him, be must abide by the result.

The objections to some evidence in respect to the contract and deed, without producing these instrument, if they were sound, were afterwards removed by their production and reading in evidence, by the defendant.

But the objections were properly overruled. The production of the papers was not necessary, and the oral testimon„y was admissible without them.

The judgment and ..order must be affirmed, with costs.

Freedman, J., concurred.