author: Hardin, P. J.:

text:
    DAVID WILBER and De FOREST WILBER, Respondents, v. JACOB LEONARD, Appellant.

      Rescission of a contract of purchase and sale — evidence thereof.

    After a contract had been entered into for the purchase and sale of hops, the vendee, before the time for the performance of the contract had arrived, wrote to the vendor as follows: “We have examined your hops carefully and find them very uneven. They are also slack, and some of them the flavor has already changed and we are sure some of them will spoil when the trying weather comes. We do not see how we can accept of them under the circumstances. We think you can save them by opening them and spreading them upon a dry floor. The hops do not compare with the sample they were bought by except a few bales ; they are very dirty picked, too.”
    The vendor, after receiving the letter, had an interview with the vendee which justified the inference that the vendor construed the letter as one calling his attention to the condition in which the hops were found by the vendee, and that he did not regard the letter as an absolute refusal to accept the hops, or as a rescission of the contract, or as an abandonment thereof by the vendee. The vendor subsequently attempted to put the hops in proper condition.

      Held, that, taking the whole language of the letter together and giving due weight to the circumstances mentioned therein, and the situation of the parties in respect to the subject-matter of the contract, and their practical construction of the tenor of the'letter, that the trial court properly refused to hold, as a matter of law, that the vendee had rescinded the contract, or. committed a breach thereof, or that the vendor was absolved from the obligation thereof.
    Appeal by the defendant Jacob Leonard from a judgment, entered in the office of the clerk of the county of Otsego on the 3d day of December, 1888, and from a judgment, entered in said clerk’s office on the 30th day of December, 1889, with notice of an intention to bring up for review upon such appeal an order dated the 26th day of December, 1889, and entered in said clerk’s office December 30, 1889, denying the defendant’s motion for a new trial.
    The action was brought to recover damages alleged to have arisen by reason of the refusal of the defendant to deliver to the plaintiffs a quantity of hops previously purchased by sample. The answer admitted the purchase and sale, but alleged that the plaintiffs refused to accept the hops.
    In November, 1888, at the Otsego Circuit, the plaintiffs recovered a verdict for $1,626.92 damages. In their complaint the plaintiffs allege that on the 28th day of May, 1886, the defendant agreed to and did “ sell and deliver to the plaintiffs, at the depot in Maryland, N. Y., all the hops then in the hop-house of the defendant in the town of Maryland, N. Y., being about forty-three bales, or 7,925 lbs., of hops, said hops to be delivered at the depot in Maryland, N. Y., at any time that might be designated by the plaintiffs, and that the plaintiffs should pay to the defendant therefor at the rate of eight and one-fourth cents per pound, and give the defendant the benefit of any rise up to June 20, 1886,. payable as follows: Ten dollars at the time of making said agreement and the residue on the delivery of said hops as aforesaid; ” also, “ It was expressly agreed by the defendant that the said hops so sold to the plaintiffs as aforesaid should correspond in all respects, and were the same as a sample then exhibited by defendant to the plaintiffs, and that said hops would be delivered by the defendant the same in all respects as the aforesaid sample.” That the plaintiffs thereupon paid to the defendant the sum of ten dollars in pursuance of the aforesaid agreement.” The plaintiffs further allege that they “ duly notified the defendant to rebale and deliver said hops at the depot in Maryland, on the 22d day of July, 1886, at which time and place the plaintiffs would be ready to receive the same and pay the balance of the purchase-price thereof; that on the 22d day of July, 1886, at the depot in Maryland, N. Y., the plaintiffs were ready and duly offered to the defendant to receive and pay for said hops pursuant to the aforesaid agreement, and requested the defendant to deliver the same, and otherwise have duly performed all the conditions of the said agreement on their part; that the defendant refused and neglected to deliver said hops, to the damage of these plaintiffs.”
    In the defendant’s answer he-admits the partnership of the plaintiffs, and alleges that on the 28th of May, 1886, “ the defendant agreed to sell to the plaintiffs and the plaintiffs, agreed to purchase from the defendant, the hops mentioned in the complaint,” substantially as stated in the plaintiffs’ complaint; and also alleges the payment of the ten dollars earnest money on said agreement, and also alleges “ that prior to June 20th, 1886, plaintiffs notified defendant that they would not accept or receive said hops, or any of them, and plaintiffs refused to accept or receive said hops, or pay for them under said agreement.”

      E. M. Ea/rris, for the appellant.

      Burr Mattioe, for the respondents.
   Hardin, P. J.:

'From the pleadings and the evidence given at the trial it is conclusivtely established that on the 28th of May, 1886, there was a valid contract made and entered into between the plaintiffs and the defendant for the hops mentioned in the complaint. Notwithstanding the statute of frauds that contract was valid and binding between the parties. (Jackson v. Tupper, 101 N. Y., 515.) It is contended by the appellant that before the time for the delivery of the hops the plaintiffs, by the letter of June eighteenth, rescinded the contract; “ and no contract of sale and purchase remained, and the defendant had the right to treat the contract as rescinded.” This position was taken in various modes at .the trial, and was raised upon the motions for a nonsuit and by a request to the court to charge. The hops when sold Avere represented to be in accordance Aidth the sample delÍAered to the plaintiffs, taken by them to their place of business and filed and preserved. Prior to the eighteenth of June the plaintiffs had derived some information or knowledge in respect to the hops m their then condition, and thereupon they addressed a letter, bearing date June 18, 1886, to the defendant, which was in the following language, adz. : “We have examined your hops carefully and find them very uneven; they are also slack, and some of them the flavor has .already changed, and we are sure some of them Avill spoil when the trying Aveather comes. We do not see hoiv we can accept of them under the circumstances. We think you can save them by opening them and spreading them upon a dry floor. The hops do not compare with the sample they were bought by except a few bales; they are very dirty picked, too.” It is contended, in behalf of the appellant, that the words, “ we do not see how we can accept them under the circumstances,” amount to a refusal on the part of the plaintiffs to accept of the hops, or an intentention to rescind the contract, or to refuse to perform the same, or an abandonment of the contract. In considering these questions the whole language of the letter must be borne in mind, and in examining the letter we find that it states that the plaintiffs have examined the hops and “ find them very uneven; they are also slack, and some of them the flavor is already changed; ” and then they proceed to state in the letter, as a matter of opinion, that they are “ sure some of them will spoil when the trying weather comes,” and then make use in the letter of the words “ we do not see how we can accept of them under the circumstances.” A careful inspection of those words indicates that the language used does not convey absolutely a refusal to accept the hops. The plaintiffs were not called upon to accept them on the day of the date of the letter. The time had not expired, mentioned in the purchase contract, for the defendant to have the benefit of the rise in the hops; nor had the plaintiffs given any notice to the defendant of the time when they desired a delivery to be made, they were not, therefore, called upon to make a definite election of an intention to receive or to reject under the contract. They were in a situation where they might kindly and cautiously express an opinion that, in the then situation of the hops, they would not answer the terms of the contract, inasmuch as they would not correspond with the sample exhibited at the time of sale; that idea seems to be derivable from the words “we do not see how we can accept of them under the circumstances.” The circumstances referred to in that phrase of the letter evidently related to the supposed condition of the hops mentioned in the antecedent portion of the letter. This construction is favored by the subsequent words found in the letter, to wit: “We think you can save them by opening them and spreading them upon a dry floor.” These last words are quite inconsistent with the supposition that the antecedent words were used for the purpose of putting an end to the contract. Before the letter closed the plaintiffs pointed out another circumstance in respect to the hops in the following words: “They are very dirty picked, too.” When the defendant received this letter he sought an interview with the plaintiffs, which took place at their place of business in Milford; and if the testimony, which was given in behalf of the plaintiffs, correctly narrates that interview, it justifies the inference that the defendant construed the letter as one calling his attention to the circumstance in which the hops were found by the plaintiffs, and that he did not regard the letter as an absolute refusal to accept the hops, or as a rescission of the contract, or as an abandonment thereof by the plaintiffs. According to the testimony given in behalf of the plaintiffs, after a considerable discussion, in which One of the plaintiffs offered one per cent to he released from the contract, the defendant declined such offer and sought the opportunity to put the hops in a situation to answer the requirements of the contract. After a considerable conversation and negotiation the parties evidently acted upon the assumption that the contract had not been rescinded, had not been abandoned, and that the defendant liad still further time and opportunity to put the hops in a proper condition so that they would answer the íequirements of the contract which had been entered into with the plaintiffs in respect to them. He made his selection of one of the skilled and experienced hands of the plaintiffs, and fully completed an arrangement to have him assist in putting the hops in proper condition. In accordance with that arrangement, the selected hand went to the defendant’s building where the hops were kept, and bales were opened and the hops were treated and dried and put into a more satisfactory condition. Taking the whole language of the letter, and giving due weight to all the circumstances mentioned therein, and the situation of the parties in respect to the subject-matter of the contract, and their practical construction of the tenor of the letter, we are of the opinion that the trial judge properly refused to hold, as a matter of law, that the plaintiffs had rescinded the contract, or committed a breach thereof, or that the defendant was absolved from the terms thereof. As already observed, the time for the performance of the contract had not matured at the date of the letter.

In volume 2 of Parsons on Contracts, page 188, it is said : “ If one, bound to perform a future act, before the time for doing it, declares liis intention not to do it, this is no breach of his contract; but if his declaration be not withdrawn when the time comes for the act to be done, it constitutes a sufficient excuse for the default of the other party.” This doctrine was cpioted approvingly by Mullin, J., in Crist v. Armour (34 Barb., 387).

The appellant calls our attention to Skinner v. Tinker (34 Barb., 334), in that case the defendant wrote a letter in its terms clear and decisive “ declining to carry out the agreement on his part.” We do not see that the case aids the appellant. Our attention is called to Cornwell v. Haight (21 N. Y., 462). In that case there had been an absolute refusal to deliver the grain, which refusal worked a breach of contract, and in the opinion it is said : “ It is quite clear that the defendant had previously made up his mind not to comply with the contract.” We have found nothing in the letter or in the conduct of the plaintiffs which warrants us in using a similar observation in this case.

In Crary v. Smith (2 Comst., 60), “ the defendant caused to be served on the complainant a written notice that he should no longer occupy the premises, and should refuse to fulfill the contract,” and that was held sufficient to supersede the necessity of a tender of a deed in order to sustain a bill for specific performance. We think the case furnishes no aid to the appellant. Morange v. Morris (32 How., 178), was a case where a somewhat. similiar question arose in a court of equity; and in illustrating the rule Smith, J., said: “ A tendor of performance need not be made when it would be wholly nugatory. For example, if the vendor in the present case had expressly notified the plaintiff before the twenty-first of September that he would not convey, and, therefore, the plaintiff need not tender the payment which the agreement required to be made on that day, he would have been excused from making the tender, as it would have been an idle ceremony.”

In Graves v. White (87 N. Y., 463), it was held that: “ A positive and absolute refusal by one of the parties to perform a contract for a purchase and sale of land gives to the other party, as an alternative remedy, the right to assent to such abandonment, and to treat the contract as rescinded.” When that ease was before this court we held, “ that the defendant practically abandoned the eon-tract, and so lost all claim to enforce its specific performance in equity, or to rely upon it as a defense to his possession,” and the Court of Appeals approved of the doctrine and said of the rule: “ It rests upon a foundation common to all contracts, that two persons who are competent to make a contract are competent to waive or abandon it; and where both concur in such waiver or abandonment their united assent dissolves the contract, and the rights of each under it are ended. This was long ago held as to contracts respecting personal property * * a positive and absolute refusal, a deliberate repudiation of the stipulations of the contract, gives to the other party as an alternative remedy the right to assent to such abandonment and treat the contract as dissolved. In the present case such refusal was proved.” We think that caséis quite unlike the one before us. Nor do we think Welsh v. Gossler (89 N. Y., 540) aids the appellant. In that case Finleyabsolutely refused to receive the sugar which was purchased under a contract requiring it to be shipped in May or June, whereas it was not shipped until July, and the court observed, viz.: “ Finley had refused to accept, and they had refused to accept for him. IN o contract of sale and purchase remained. The omission to ship in June authorized Finley to treat it as rescinded.” The case is, therefore, quite unlike the one before us. We think no error was committed by the trial court in refusing, upon the motions for a nonsuit, to hold, as a matter of law, that the letter of the eighteenth of June rescinded the contract between the parties, or that it was conclusive evidence of an abandonment of the contract on the part of the plaintiffs; nor in refusing to charge the jury, as a matter of law, that the letter operated per se to rescind the contract. We think there is no force in the position taken by the appellant that a new contract was made on the twenty-first of June, and that that contract was void by the statute of frauds. In considering all the evidence in the case, we think it was not the intention of the parties to enter into a new contract on the occasion of that interview. They seem on either side to have been more concerned with the actual condition of the hops, and of what could be or should be done to them to bring them into such situation as that they would correspond to the sample which had been furnished to the plaintiffs on the occasion of the contract of sale. Indeed, defendant testifies: “I claimed there was no second contract ■; ” there ■was nothing only the old contract; and he also testifies that in the interview of the twenty-first of June one of the plaintiffs told him how he could put the hops in condition to answer the contract, and that he would send a man over where the hops were to show him how to place them in proper condition, and that tthe plaintiff added, viz.: If they open all right and satisfactory to me, I will take them at the old price. * * * I made no reply to Wilber’s saying if the hops were opened and dried and proved to be satisfactory they would take them; I said I would have them opened and save what I could out of them.”

In the course of the charge delivered to the jury it was said that if a new contract was made, as nothing was paid thereon, it was void; and that if the jury so found, their verdict should be for the defendant. That instruction was quite as favorable as the defendant was entitled to, and we may properly assume, from the verdict, that the jury found that there was no such new contract made upon the occasion of that interview. As we have already said, we are of the opinion that the evidence is entirely sufficient to warrant the jury in finding that no new contract was made.

We have looked at the rulings made upon the trial and find no prejudicial error therein. We think the verdict should stand.

Judgment and order affirmed, with costs.

Martin and Mkrwin, JJ., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    EDGAR C. DAVIS, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, Appellant.

      Proof as to the commission of a crime in a civil action — thepa/rty chm'ging it is not required to establish it beyond a reasonable doubt.

    In a civil action the party upon whom the burden oí proof rests as to the issue, even where he seeks to establish a charge of the commission of a crime, is not bound to establish it beyond a reasonable doubt. It is sufficient if there is a fair preponderance of evidence in his favor.
    Appeal by the defendant from a judgment entered, in the office of the clerk of the county of Onondaga on the 6th day of June, 1889, after a trial at the Onondaga Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for the sum of $114.91; and also an appeal from an order denying defendant’s motion for a new trial made on the minutes of the justice before whom the action was tried.

      Bd/mund B. Wynn, for the appellant.

      Stone, Gammon dé Petit, for the respondent.
   Martin, J.:

This action was to recover for services performed for the defendant by the plaintiff as a conductor on one of its trains. The defense was that the plaintiff was guilty of such flagrant acts of dishonesty or crime in embezzling the fuuds of the defendant as to bar his right of recovery. The case was tried and submitted to the jury upon that issue.

In submitting the case to the jury the court charged as follows: In addition to that he has the presumption of law in his favor; and in this case the presumption goes something further than what I have had occasion to say to you in other cases where I have simply stated to you that if there was a preponderance of evidence in favor of the party having the burden of proof, then you must find for the party having such preponderance. In this case, where the charge is of a crime, the burden which is laid on the defendant is something more than that, because -the real question is the same as if the plaintiff was on trial for theft, and you must find not simply on weighing the testimony that there is a preponderance of evidence in favor of the defendant in this case, but you must find that the evidence satisfies you, beyond reasonable doubt, that the position which the defendant takes here is the correct one, and that the plaintiff did, on the occasions referred to, take the moneys which have been testified to here, and that he did not report and pay them over. If you are satisfied, beyond reasonable doubt, that all this is true, then the defendant is entitled to something more than offset of these moneys against the claim of the plaintiff which has been established. The plaintiff will not be entitled to recover at all for his services if you are satisfied that he performed his duties in the dishonest way which the witnesses for the defendant would indicate; and so, gentlemen, you will determine in this case, if the evidence satisfies you beyond reasonable doubt, considering the testimony on both sides and the presumption of law in favor of the plaintiff. I say, if the testimony here satisfies you, beyond reasonable doubt, that the plaintiff did receive the moneys as charged here, and did not report and pay over those moneys, then your verdict must be for the defendant. If, from this evidence, you find he received these moneys, but you are not satisfied that he intentionally withheld and failed to pay them over, then the defendant would be entitled-to an offset to that extent. If neither of those were found, the plaintiff would be entitled to recover the full amount claimed, $110.87, with interest.” To this portion of the charge the defendant excepted. ^

The effect of the portion of the charge excepted to was to impose upon the defendant the burden of establishing its defense beyond a reasonable doubt. The rule, as established by the earlier English cases was, that proof beyond reasonable doubt was usually required to establish a charge of crime in a civil action. This rule has been followed in a number of the States, and seems to have been followed in the earlier cases in this State. (Woodbeck v. Keller, 6 Cow., 118; Clark v. Dibble, 16 Wend., 601; Hopkins v. Smith, 3 Barb., 602.) But in the more recent cases, especially in this State, it has been held that in a civil action the party upon whom the burden of proof rests as to an issue is not bound to establish it beyond a reasonable doubt. It is sufficient if there is a fair preponderance of evidence in his favor. (N. Y. Guar. and Ind. Co. v. Gleason, 78 N. Y., 503, 513; Johnson v. Agricultural Insurance Co., 25 Hun, 251; Freund v. Paten, 10 Abb. N. C , 311; Stearns v. Field, 90 N. Y., 640, 642; Seybolt v. N. Y., L. E. and W. R. R. Co., 95 id., 562, 569; People v. Briggs, 47 Hun, 266, 268; affirmed, 114 N. Y. 56; N. Y. and B. Ferry Co. v. Moore, 1 N. Y., St. Rep., 374; S. C., less fully, 102 N. Y., 667.) In the last case Judge Earl, who delivered the opinion of the court in that case, said: “ There is no rule of law which requires the plaintiff, in a civil action, when a judgment against the defendant may establish his guilt of a crime, to prove his case with the same certainty which is required in criminal prosecutions. Nothing more is required in such cases than a just preponderance of evidence, always giving the defendant the benefit of the presumption of innocence. Where a .judgment for the plaintiff involves crime or moral turpitude on the part of the defendant, the court should always require satisfactory proof, and when that has been given judgment should follow, regardless of consequences. In no other way can the law be properly administered and jirivate rights effectually protected.”

We are of tlie opinion that the authorities cited are conclusive upon this question, and require us to hold that the exception under consideration was well taken. This leads to a reversal of the judgment and order appealed from.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order reversed upon the exceptions and a new trial ordered, with costs to abide the event.


text:
    ANDREW VAN WOERT, Appellant, v. WILLIS ACKLEY, Respondent.

      Costs of an appeal from an order granting a new trial —• a 'neglect to pay them does not operate as a stay of proceedings.

    The provisions of section 779 of the Code of Civil Procedure, providing that where the costs of a motion, or any other sum of money directed by an order to be paid, shall not be paid, all proceedings on the part of the party required to pay shall be stayed, do not apply to the costs of an appeal from an order granting a new trial on the merits.
    Appeal by the plaintiff from an order made at a Circuit Court and Special Term held in Otsego county, and entered in the office of the clerk of said county on the 3Cth ’day of January, 1889, staying the plaintiff from moving the case for trial until the costs of the appeal from an order granting a motion for a new trial were paid.
    The action ivas brought to recover damages for a breach of warranty on the sale of hops. It was tried at the Otsego Circuit in January, 1887, and a verdict for $155 rendered in favor of the plaintiff. A motion for a new trial was made on the judge’s minutes, which was granted, and an order was made setting aside the verdict and granting a new trial. From this order an appeal was taken to the General Term, by which the order was affirmed and the defendant’s costs on such appeal were taxed.
    The motion for a new trial on the judge’s minutes was made by the defendant and granted by H. Boardman Smith, J., who presided at the trial; and he based his order granting such trial upon an error committed in the charge; and the order allowed “ $10.00 costs to abide the event.” The plaintiff took an appeal from that order to the General Term, and, after a consideration of the appeal, the General Term, on the 13th of November, 1888, affirmed the order, with costs, and the defendant entered a judgment of affirmance and for his costs, eighty-nine dollars and three cents, December 21, 1888. On the 14th of January, 1889, at a Circuit Court and Special Term, held in Otsego county, an order was granted containing the following words: “ That plaintiff be and he is hereby stayed from prosecuting or moving said case, or taking any proceeding therein toward enforcing the trial thereof until the costs of the appeal from the order granting the motion for a new-trial are paid.” At a Special Term, held on the fourteenth of May, that order was resettled and amended by the same justice who granted the same; and the plaintiff appeals from the order “ staying plaintiff from moving this cause for trial until the costs of the appeal from the order granting the motion for a new trial are paid, and from each and every part of said order.”
    IF. J. Palmer, for the appellant.

      G. L. Wilbior, for the respondent.
   Hardin, P. J.:

Inasmuch as the ten dollars costs of motion in the order of January, 1887, were alloived to abide the event, the non-payment of them by the plaintiff does not permit the defendant to avail himself of the provision in section 779 of the Code of Civil Procedure in respect to a stay of proceedings. Hpon the questions made as to the nonpayment of the costs of the appeal included in the judgment of affirmance of the order granting a new trial, which costs amount to eighty-nine dollars and three cents, the cases of Eisenlord v. Clum, and others (24 N. Y. St. Rep., 102), and Verplanck v. Kendall (47 Supr. Ct. [15 J. & S.], 513) are in point and adverse to the decision made at Special Term in this case; however, Phipps v. Carman (26 Hun, 518) seems to be a decision which would support the order appealed from. An examination of chapter 390 (§ 3) of the Laws of 1817; of section 779, as it appeared in the Code of Remedial Justice, being chapter 118 of the Laws of 1876 (second volume of the Session Laws of 1876, page 116), and section 12 of chapter 131 of the Laws of 1876 (volume 1 of the Session Laws of 1876, page 156); Mr. Throop’s note to section 779 of the Code of Civil Procedure, inclines us to follow the decision of the third department in Eisenlord v. Clum and others (supra). We think the order should be reversed.

The order must be reversed, with ten dollars costs and disbursements.

Martin and Merwin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOSEPH F. MALONEY, Respondent, v. JOHN R. EDWARDS, as Treasurer of Oneida County, Appellant.

      General statute providing for the redemption by a mortgagee from tax sales — when not affected by the provisions of a subsequent special and local statute.

    By chapter 91 of the Laws of 1880, as amended hy chapter 8 of the Laws of 1881 (which acts relate to the collection of taxes in Oneida county by a sale of land by the treasurer of that county), it is provided that “the owner of, or any person interested in, any real estate sold for taxes as aforesaid, may redeem the same at anytime within'one year after the last day of such sale,” and that the notice to bo given thereunder by the treasurer shall state “ that unless the said amount, and the interest thereon, is paid to the county treasurer within one year from the last day of such sale, the same will become absolute, and the owner, or other person interested in said lands, will be forever barred from all right or title thereto, and no other notice, either by the county treasurer or by the holder of the certificate of any sale, or by any other person, shall be necessary or required:” The said acts also provide that “All powers which are conferred upon the comptroller of this State, in relation to * * * the effect of any such sale of land for taxes upon the lien of any mortgage thereon, are Hereby conferred, so far as relates to the county of Oneida, upon the treasurer thereof.”

      Held, That the provisions of the general statute (chap. 427 of the Laws of 1855, as amended by chapter 280 of the Laws of 1870), to the effect that no sale of real estate for non-payment of any tax or assessment shall destroy or affect the lien of any mortgage thereon, unless the purchaser at such sale shall, where such mortgagee shall file the notice required by the act, give to the mortgagee a written notice of the sale, were not repealed by chapter 91 of the Laws of 1880, as amended by chapter 8 of the Laws of 1881.
    Appeal by the defendant Jolm R. Edwards, as treasurer of Oneida county, from an order entered in the office of the cleric of the county of Oneida on the 8tb day of July, 1889, by which it Avas ordered that the relator’s motion herein be granted, and that a peremptory Avrit of mandamus issue out of and under the seal of this court directed to said John R. Edwards, as treasurer of Oneida county, commanding him to forthwith receive and collect from the relator, Joseph E. Maloney, the money heretofore, and on May twenty-third, tendered to said defendant, as such treasurer, by said relator, as assignee of a mortgage upon certain premises described, in full payment of tlie amount named in a certain certificate of tax sale issued August 26, 1887, by said county treasurer to Davies & Johnson, purchasers, upon a sale of the said lands and premises for delinquent taxes thereon for the year 1886, assessed against Thomas Kenny.

      Davies <& Johnson and G. G. Morehouse, for the appellant.

      ,T. 8. Balter, for the respondent.
   Martin, J.:

This is an appeal from an order directing that a peremptory writ of mcmdamus issue to the appellant, as treasurer of Oneida county, commanding him forthwith to receive the money tendered him by the relator, as assignee of a mortgage, which was a lien upon certain premises situated in the town of Florence in that county, which had been sold for the taxes levied thereon for the year 1886, and to deliver to the relator a receipt or certificate for such payment, certifying that the same was in full redemption of the premises and the lien of said taxes and from the sale thereunder.

The premises sold consisted of about twenty-two acres of land. The State and county taxes levied thereon for the year 1886 were returned unpaid. By virtue of the provisions of chapter 91, Laws of 1880, as amended by chapter 8, Laws of 1881, the treasurer of Oneida county sold the premises for such unpaid taxes in August, 1887. They were struck oft: to Davies •& Johnson for twelve dollars and seventy-five cents, and a certificate was issued to them August 28, 1887. The treasurer executed and delivered to them a deed August 31, 1888. The mortgage held by the relator was given by the then owner of the premises February 17, 1886, and recorded on the twenty-fourth day of the same month. It was given to secure the payment of forty-two dollars and seventy-five cents and interest, and was assigned by the mortgagee to one Woodruff December 29, 1888, and by Woodruff to the relator March 29, 1889. Both of said assignments were duly recorded in the office of the clerk of the county of Oneida.

On February 8, 1889, Woodruff, as assignee of such mortgage, caused to be served upon the appellant a notice similiar to that required to he served on the comptroller by section 82 of chapter 427, Laws of 1855, and tendered the appellant the sum of twenty dollars, which was more than the sum for which said premises were sold, with twelve per cent interest and the treasurer’s fee for the deed given hy him added, and demanded a certificate of such payment and redemption. The appellant refused to receive the money so tendered or to give such certificate. On the 23d day of May, 1889, and after the transfer of said mortgage to the relator, he served upon the appellant a similar notice, made a similar tender and demand, and the appellant again refused to receive the money tendered or to give the certificate demanded.

The motion for mandamus was opposed by the appellant for the reason, as he states in his brief, “ that defendant had no right to receive the moneys (tendered him by the assignees of such mortgage), or to cancel the said cei'tificate.” Therefore, the question presented is, whether the county treasurer had power and could have rightfully received the money tendered and delivered to the relator a receipt or certificate showing that said money was paid in redemption of the premises from such sale. A solution of this question is dependent upon the general statutes in relation to the sale of lands for unpaid taxes, unless those statutes have been repealed or modified by a subsequent one relating ti> the collection of taxes in the county of Oneida. To determine this question it becomes necessary to examine the general statutes so far as they relate to the rights of a mortgagee by virtue of his lien upon real estate which has been sold for unpaid taxes, his right as such to redeem, and the method of effecting such redemption, and also to examine the special act relating to the collection of taxes in the county of Oneida.

Chapter 427, Laws of 1855, as amended by subsequent acts, which constitutes the general law of the State in relation to the collection of taxes on lands of non-residents, and in relation to the sale of such lands for unpaid taxes, provides, among other things, as follows: “No sale of real estate hereafter made for the non-payment of any tax or assessment, shall destroy, or in any manner affect the lien of any mortgage thereon, duly recorded or registered at the time of such sale, except as hereinafter provided” (§ 76). “It shall be the duty of the purchaser at such sale to give to the mortgagee a written notice of such sale, requiring him to pay the amount of the purchase-money, with interest, at the rate allowed by law thereon, within six months after the giving of such notice. Such notice may be given at any time after the expiration of two years from the last day of such sale” (§ 11, as amended by Laws of 1870, chap. 280). “If such payment shall be made, the sale shall be of no further effect, and the mortgagee shall have a lien on the premises for the amount paid, with the interest which may thereafter accrue thereon, at the rate of seven per cent per annum, in like manner as if the same had been included in his mortgage ” (§ 78). “ In case the mortgagee shall fail to make such payment within the time so limited, he shall not be entitled to the benefit of section seventy-six of this act ” (§ 79). “ The term mortgagee,’ as used in this act, shall be construed to include assignees whose assignment shall be duly recorded, and personal representatives; and the term 'purchaser’ shall be construed to include assignees, and real or personal representatives, as the case may be ” (§ 80). “ The notice recpiired by section seventy-seven of this act may be given either personally or in the manner required by law, in respect to notices of non-acceptance or non-payment of notes or bills of exchange, and a notarial certificate thereof shall be presumptive evidence of the fact; such certificates may be recorded in the county in which the mortgage was recorded, in the same manner and with the same effect as is by law prescribed, in respect to deeds or other evidences of title of real estate. A copy of such notice served, together with the affidavit of some person, who shall be certified as credible by the officer before whom such affidavit shall be taken, that such notice was duly served, specifying the mode of service, shall be filed in the office of the comptroller within one month after such service” (§ 81, as amended by Laws of 1870, chap. 280). “ The notice required to be given under the last preceding five sections, hi cases of sales by the comptroller, shall be directed only to such persons as shall within two years from the time of such sale file in the office of the comptroller a notice stating the name of the mortgagor and mortgagee, the date of the mortgage, and the amount claimed to be due thereon, and the county, town and tract in which the mortgaged premises are situated, with the number of the lot on which said mortgage is claimed to be a lien, with the name of the person or persons claiming notice, their residence, and the post-office to which such notice shall be addressed; in case such mortgagee or other person shall' omit or neglect to file such notice with the comptroller within the said two years, then said mortgagee or other person shall be barred from all claim to redemption by virtue of said mortgage, and the title of the purchaser shall become valid and effectual the same as if such mortgage had not existed ” (§ 82, as revived by the repeal of chap. 285, Laws of 1862 ; by chap. 280, Laws of 1870).

The statute of 1855 was further amended by chapter 280, Laws 1870, by providing as follows: “A mortgagee whose mortgage is duly recorded, or the assignee of any mortgage whose assignment is duly recorded, and the personal representatives of such mortgagee or assignee, who shall have filed with the comptroller, as required by law, a notice and description of his mortgage, may, at any time after thé sale of all or any part of the mortgaged premises for unpaid taxes, and before the expiration of six months from the giving of the notice required by section seventy-seven of chapter four hundred and twenty-seven of the Laws of 1855, entitled 'An act in relation to the collection of taxes on lands of non-residents, and to provide for the sale of such lands for unpaid taxes,’ may redeem the said premises, so sold, or any part thereof, from the said sale. If the said sale shall have been made by the comptroller, such redemption shall be made by paying to the State treasurer, upon the certificate of the comptroller, for the use of the purchaser, his heirs or assigns, the sum mentioned in his certificate, with interest at the rate allowed by law in the case of redemption by occupants, from the date of such certificate; and if the sale shall have been made by a county treasurer, or other county officer, the redemption shall be made by paying to the county treasurer the amount for which said lands were sold, with interest at the same rate from the day of sale. The mortgagee or assignee of a mortgage, or other person redeeming land sold for unpaid taxes, as authorized by this section, shall have a lien on the premises so redeemed for the amount paid, with interest thereon from the time of such payment, at and after the rate of seven per centum per annum, in like manner as if the same had been included in the mortgage.” While the statute last quoted was repealed by chapter 563, Laws of 1889, passed June 15, 1889, still the repealing act contained the following saving clause: “ Sec. 2. Nothing in this act contained shall affect any suit or proceeding now pending in any court of this State, or the rights of any party to any suit or proceeding commenced before the passage of this act.” This proceeding was commenced before such repealing act was passed, and hence is not affected thereby.

This examination of the general statutes, which were in force when the act for the collection of taxes in Oneida county was passed, discloses that, under those statutes, as they then existed and still exist, a mortgagee’s lien upon land sold for unpaid taxes was not only preserved, but also that a distinct and independent system for the redemption of such lands by the mortgagee was thereby established. Indeed, it seems to be admitted by all, that if the sale in question had been made by the comptroller, under the provisions of the statute of 1855, the relator’s right of redemption would not have been barred when the notices and tenders made by the relator and his assignor were served and made. But the appellant claims that the sale in this case was made under a special statute relating to the collection of taxes in Oneida county, and hence that the foregoing provisions of the general law have no application, and the relator’s right to redeem was barred by the limitation of one year contained in the Oneida act. That the sale in question was made in pursuance of such special act is admitted, but that the statute of 1855 is not applicable to the relator’s right to redeem is denied.

The special act referred to (Laws 1880, chap. 91 as amended by chap. 8, Laws 1881) provides for the collection of taxes in Oneida county by a sale of lands by the treasurer of that county. It prescribes the notice to be given, where the sale shall be made, the manner of making such sale, the certificate to be given to the purchaser, the rights acquired by virtue of such sale and purchase, and then provides: “ The owner of, or cmy person interested in, any real estate sold for taxes as aforesaid may redeem the same at any time within one year after the last day of such sale, by paying to the said county treasurer, for the use of the purchaser, his heirs and assigns, the sum mentioned in his certificate, and the interest thereon at the rate of twelve per cent per annum, to be computed from the date of such certificate ” (§ 8, chap. 91 of 1880). “ If such real estate sold for taxes, or any portion thereof, be not redeemed as herein provided, the said treasurer shall execute to the purchaser, his heirs or assigns, a conveyance of the real estate so sold,-.which shall vest in the grantee an absolute estate in fee. The said treasurer shall be entitled to demand and receive from the purchaser one dollar for preparing such conveyance.” (Sec. 9, id.)

“When any lot or piece of land sold for taxes by the treasurer shall, after the expiration of six months from the last day of the annual sale therefor, be in the actual occupation of any person as a residence, the purchaser, or the person claiming under him, shall serve a written or printed notice on such occupant, or by leaving such notice at the dwelling thereof with some person of suitable age, or by affixing such notice upon the outer door of such dwelling, or if such land shall not be occupied as aforesaid, such notice shall be published in one of the newspapers published in the city of Rome or the city of Utica, once each week for three weeks, stating, in substance, the sale of such lands, the person to whom made, and the amount for which the same was sold, and stating the time when the purchaser thereof will be entitled to receive a deed, and stating also that unless the said amount and the interest thereon is paid to the county treasurer within one year from the last day of such annual sale, the same will become absolute, and the owner or other persons interested in said lands will be forever barred from all right or title thereto, and no other notice, either by the comity treasurer, or by the holder of the certificate of any sale, or by any other person, shall be necessary or required. In case any of the lands so sold shall be redeemed therefrom subsequent to service of notice, the expenses of advertising and service of the notice herein provided, and any taxes upon lands so sold which may be assessed upon and paid by the purchasers, or assignees of such purchasers, between the time of the sale and redemption thereof, shall, with the interest thereon at the rate provided by this act, be added to the amount otherwise required to be paid for such redemption. This section shall apply to the sales made by the treasurer of said county in the year eighteen hundred and eighty.” (Sec. 15, Laws 1880, as amended by chap. 8, Laws 1881.)

This act contains no express provision in relation to mortgage liens on land sold for taxes under it, nor is there any express provision in relation to the mode of procedure to be pursued to effect a redemption by a mortgagee, except so far as it is contained in section 12 of said act (chap. 91 of 1880), which is as follows: “All powers which are conferred upon the comptroller of this State in relation to the cancellation of a tax which shall have been paid to a collector ; the repayment of any tax paid more than once; the payment of a part of the tax on land by any person claiming a part of such land; the redemption of lands sold for taxes by persons claiming an undivided share or specified part thereof; the effect of such redemption, reducing the land to be conveyed ; the effect of any such sale of land, for tcoxes upon the lien of any mortgage thereon; the right of a mortgagee to redeem; the conseguence of neglect to do so after notice, mid the lien of the mortgagee for the amount paid on such redemption; the authority to withhold conveyances when it shall be discovered that any sale of land for taxes was ineffectual to convey a title, and to refund the purchase-money and interest to the purchaser are hereby conferred, so far as relates to the county of Oneida, upon the treasurer thereof.”

Section 14 of said act is as follows: “All acts and parts of acts inconsistent or in conflict with this act, so far as the same do conflict and relating to the county of Oneida, are hereby repealed.” Tlie first inquiry presented arises as to the effect of the repealing act contained in the special statute relating to the collection of taxes in Oneida county. Did it effect a repeal of the provisions of the general statutes in relation to mortgage liens and redemption by the holders of mortgages on the land sold for taxes, so far as it was applicable to that county? We think not. It will be observed that the repeal provided for, was limited to such acts or parts of acts as were inconsistent or in conflict with the special act relating to Oneida county, and that such acts and parts of acts were repealed only so far as they were in actual conflict with it. We think that the repealing act quoted indicates an intention upon the part of the legislature not to repeal, but to preserve, as applicable to Oneida county, all acts or parts of acts relating to the sale of lands for the collection of taxes that were not actually inconsistent with the provisions of such special act or in real conflict with it. The general law contained definite and full provisions in relation to mortgage liens on lands sold for taxes, and as to the right and manner of redemption by a mortgagee or assignee of a mortgage thereon. The special act contained no provision on the subject, except as exjnessed in section 12. There was, therefore, no inconsistency or conflict between the provisions of the general law on that subject and the special act, and the special act did not effect then repeal as to Oneida county.

Moreover, the provisions of section 12 of the special act seem to indicate quite clearly that the legislature did not intend to repeal these provisions of the general law, as that section seems to recognize the provisions contained in the general statutes in relation to the “ effect of any such sale of lands for taxes upon the lien of any mortgage thereon; the right of a mortgagee to redeem; the consequences of neglect to do so after notice, and the lien of the mortgagee for the amount paid on such redemption,” as unrepoaled and a part of this act.

We are of the opinion that those provisions of the general statutes which relate to mortgage liens and redemption by mortgagees were not repealed, and hence we are led to the examination of the question whether they were modified by that act, and if so, to what extent and in what particulars. While it must be admitted that the special statute under consideration was inartificially drawn, and that it is somewhat ambiguous, still, when it is considered in the light of the statutes in existence when it was passed, and the obvious purpose of its passage, we are led to the conclusion not only that the provisions of the general law in relation to mortgage liens and redemption under them were not repealed, but that it was the intent and purpose of section 12 to make such general provisions a part of the special act, but modified by a substitution of the treasurer and his office in the place of the comptroller and his office, and by conferring upon the treasurer the powers and duties which, under the general law, devolved upon the comptroller, and substituting the county treasurer’s office, instead of the comptroller’s, as the place where notices in relation to such redemption should be filed.

If correct in our conclusion as to the effect of that statute, it follows not only that the period for redemption by the relator was not barred by the expiration of one year, but, also, that the appellant had the power and could have rightfully received the money tendered by the relator or his assignor, and have delivered to him a receipt or certificate showing that such money was paid in redemption from the sale of such premises.

That a notice was given to the treasurer, as provided for by section 82, chapter 427, Laws 1855, by the assignees of the mortgage in question within the time therein limited, and that the whole amount of the purchase-money, interest and expenses was tendered to him is not denied. It is said, however, that the tender was not for the tbse of the pwrchasers, as required by section 8 of the special act (chap. 91 of 1880), and, therefore, insufficient. It was not in that language. It was tendered for and in full redemption of said premises from sale for delinquent taxes, in August, 1887, to Davies & Johnson,” which we think was sufficient.

Nor do we think that it was invalid because a receiptor certificate therefor, in redemption of said premises from the sale for unpaid taxes, was demanded. There is nothing to show that the tender was on condition that a receipt or certificate should be given. The tender was rejected by the appellant upon the sole ground that he had no right or power to receive such money and give such certificate, and not upon the ground that such certificate was demanded. If the appellant had received the sum tendered, we think it would have effected a redemption of the premises, and it would then have been proper for him to have given a certificate as provided by section 71 of the Laws of 1855.

These considerations lead us to the conclusion that the order appealed from was proper, and should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    DAVID K. McCARTHY and Others, Respondents, v. ISAAC N. WRIGHT and Another. ISAAC B. RICHMOND, Assignee, etc., Appellant, Impleaded, etc.

      Assignee — liability of, for costs in an action of repleoin begun against his assignors prior to the assignment, and continued thereafter.

    In an action of replevin, where a sale of the goods replevied was sought to be avoided on the ground of fraud, the defendants appeared and answered, and shortly thereafter made a general assignment for the benefit of their creditors. The assignee was never made a party to the action, and the property, having been delivered to the plaintiffs under the process in replevin, never came into his possession. The action was afterwards tried and the defendants recovered judgment, which was reversed on appeal. Thereafter a motion was made by the plaintiffs to substitute the assignee as a party defendant, which resulted in an order that the assignee should be made a party unless the defendants should, within ten days, serve upon the plaintiffs an offer of judgment for the retention of the goods replevied, with costs to the date of the offer. Such an offer was subsequently made and accepted.
    The plaintiffs having failed to collect the costs from the defendants, obtained an order at Special Term requiring the assignee to pay them from the money in his hands belonging to the assigned estate.

      Held, that the assignee was not liable, under the provisions of section 3247 of the Code of Civil Procedure, for such costs
    That a claim by the plaintiffs that in an action of replevin both parties are to be regarded as plaintiffs could not be sustained.
    That under the facts of this case no liability was created upon the part of the assignee, who neither took part in the defense of the action nor in any way interfered with the case.
    Appeal by Isaac B. Richmond, as assignee of the defendants above named under a general assignment for the benefit of creditors, from an order, entered in the office of the clerk of the county of Herkimer on May 17, 1889, directing the said assignee to pay the costs of the plaintiffs in this action out of the funds of the assigned estate in his hands.

      Hadley Jones, for the .appellant.

      L. E. Fuller, for the respondents.
   Martin, J.:

This was an action of replevin. It was commenced January 22, 1886. The property which was the subject of this litigation was sold by the plaintiffs to the firm of Johns Bros., and by that firm transferred to the defendants. The sale and transfer of the goods in question was sought to be avoided and the goods recovered upon the ground: First. That the sale by the plaintiffs to Johns Bros, was induced by fraud. Second. That the transfer to the defendants was also fraudulent and void as to the plaintiffs, and hence that no title passed to the defendants. The property was taken by an officer under the procees issued in this action, delivered to the plaintiffs and retained by them. The defendants appeared and answered.

About two months after the commencement of this action the defendants made a general assignment for the benefit of their creditors to the appellant. The assignee was never made a party to this action. None of the goods claimed by the plaintiffs ever came to his possession, or any of the proceeds thereof. Indeed, he never claimed them, nor that he had any interest in them. When spoken to about the litigation which had arisen in relation to such property he declined to have anything to do with it or with the property involved therein, because of the suspicious facts connected with such transfer, thus practically admitting the plaintiffs’ alleged title.

The action was afterwards tried and the defendants had judgment. An appeal was taken, the judgment was reversed and a new trial ordered. The action was subsequently noticed for trial, and when reached a motion was made by the plaintiffs to substitute the appellant as a party defendant, which resulted in an order that the appellant should bo made a party, unless the defendants should within ten days serve upon the plaintiffs an offer of judgment for the retention of the goods replevied, with costs to the date of the offer. In pursuance of that order an offer was made and accepted, and judgment was entered thereon in favor of the plaintiffs for the property in question and for $698.23 costs against the defendants. The plaintiffs having failed to collect the costs from the defendants, moved at a Special Term for an order requiring the appellant to pay them from the moneys in his hands belonging to such trust estate, which was granted, with ten dollars costs. From that order the assignee appeals.

The respondents and the court at Special Term relied upon section 3247 of the Code of Civil Procedure as a basis for this order. The provisions of that section, so far as possibly applicable to this case, are as follows : “ Where an action is brought in the name of another, by a transferree of the cause of action, or by any other person who is beneficially interested therein, or where after the commencement of an action, the cause of action becomes, by transfer or otherwise, the property of a person not a party to the action; the transferree, or other person so interested, is liable for costs, in the like cases, and to the same extent as if he was the plaintiff; and where costs are awarded against the plaintiff, the court may, by order, direct the person so liable to pay them.”

It is quite obvious that the facts of this case, do not bring it within the letter of the statute quoted. Here no action was brought by the appellant in .the name of another, either as transferree or as one beneficially interested therein, nor was any cause of action transferred to him after the commencement of the action. This section is unlike section 321 of the old Code.

The respondents, however, claim that the rule in an action, of replevin is different, and that in such an action both parties are to be regarded as plaintiffs. There are some authorities that would seem to justify that claim. It was so held in the Newell Universal Mill Company v. Muxlow (51 Hun, 453), but upon appeal to the Court of Appeals that case was reversed (115 N. Y., 170), and Ruger, Ch. J., in delivering the opinion of the court, said: “We are unable to concur in the course of reasoning adopted by the court below, by which, in analogy to the rules pertaining to the former action of replevin, a claim of title by the defendant must be considered the statement of a cause of action in separate counts. * * * The action of replevin was abolished by the Code of Procedure, and its peculiar and distinctive features suspended by the rules of practice therein provided for the conduct of actions of claim and delivery.”

We do not think the respondents’ claim that the defendants are to be regarded as though plaintiffs in this action, or that the appellant is to be treated as the transferree of a cause of action after the commencement of the action, can be upheld. Nor do we think that the appellant was a person beneficially interested in any cause of action involved in this case. No title to the goods in question ever passed to him. It rested in the plaintiffs, after the disaffirmance of their contract with Johns. Bros, and the reclamation of the property. It so rested in them when the assignment was made. The appellant did not claim any title to or interest in it. Tie refused from the outset to make any such claim because the transaction between his assignors and J ohns. Bros, was apparently fraudulent. Tie took no part in the defense of the action or in any way intermeddled with it. We are of the opinion that the facts, as established by the papers read on this motion, were insufficient to justify the order provided for by section 3247, and that the order appealed from cannot be sustained.

In Taylor v. Bolmer (2 Denio, 193), where the plaintiff, while a suit was pending, made a general assignment for the benefit of creditors, and the cause was afterwards tried and judgment had by the defendant, it was held that the assignees not having intermeddled with the prosecution were not liable. Bronson, Oh. J., who delivered the opinion of the court in that case, said: “ The rule is, that when an assignee, or person beneficially interested in the demand, brings or carries on a suit in the name of another, he must pay the defendant’s costs if the suit fail. Here the assignees neither brought the suit, nor have they been instrumental in carrying it on. They have done no act whatever by way of prosecuting the claim. The defendant relies on a dictum of mine in Miller v. Franklin, (20 Wend., 630) to the effect that it is enough that an assignee pendente lite knows of the suit, and allows it to proceed for his benefit. That was going too far. None of the cases charge the assignee unless he has employed the attorney, contributed money, or in some other waj' been instrumental in carrying on the litigation.” In Heather v. Neil (14 Week. Dig., 46) it was held that the mere transfer of a judgment or right of action in course of prosecution to an assignee in bankruptcy does not render him chargeable with the costs which the defendant may afterwards recover. His liability is confined to such costs as he may have caused by his own proceedings in the case. Where the assignee simply defends an appeal from a judgment formerly recovered by the bankrupt, on which appeal the judgment is reversed, and takes no further steps in the matter, he is not liable for costs, on dismissal of the complaint on a new trial.

A person to whom a judgment is- to be paid, if a recovery is had, is not liable for costs where the suit is prosecuted without his knowledge or consent. Such, a person is not the party beneficially interested in the recovery within the provisions of section 3247. (Elliot v. Lewicky, 51 Supr. [19 J. & S.], 51.)

In McHarg v. Donelly (27 Barb., 100) it was held that a creditor is not liable for costs where a receiver sues without his request or direction, although the recovery inures to his benefit. The same doctrine was held in Cutter v. Reilly (5 Robt., 637) and Wheeler v. Wright (23 How., 228).

We think the cases cited sustain our conclusion that, on the facts disclosed, the appellant ought not to have been charged with the costs in this action, and that the order should be reversed.

Hardin, P. J., and jVIerwin, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Merwin, J.:

text:
    HORACE PARKS and Another, as Administrators of J. LEE TINKER, Deceased, Appellants, v. CLARENCE ANDREWS, Individually, and also as Administrator of JOSIAH ANDREWS, Deceased, and Others, Respondents.

      Evidence —personal transactions with a deceased, person — what is a trial.

    In an action brought to collect the amount due upon a contract for the sale of land, given on April 1, 1861, by the plaintiffs’ intestate, J. Lee Tinker, to one Josiab Andrews and George Weyand,,one of the .defendants, a son and heir of Josiah Andrews, was asked the question: “After the death of your father did Mr. Tinker present any claim to you against your father’s estate?” This question was objected to by the plaintiff on the ground that the witness was incompetent to testify. The objection was overruled and the witness answered: “No, sir; he made no claim for anything due upon this contract to me.”

      Held, that by this ruling the witness, who was an interested party defendant, was permitted, in his own behalf, to negative the existence of a transaction between himself and the plaintiffs’ intestate, and that such evidence was incompetent.
    The trial took place under an order made at Special Term directing that the question, “ What amount is now unpaid upon the land contract annexed to the complaint in this action?” be tried by a jury, in pursuance of section 823 of the Code of Civil Procedure, and it was claimed that such trial was not “ the trial of an action,” and that the provision of section 829 of the Code was not applicable thei-eto.

      Held, that it was a part of the trial, and as it was a judicial investigation of the main issue upon the merits, and its result was accepted by the court, before which the trial was completed, the provision of this section of the Code was applicable thereto.

      Appeal by the plaintiffs from a judgment, entered in the office of the clerk of the county of Oneida on the 8th day- of July, 1889, in favor of the defendants, after a trial, at a Special Term held in the county of Oneida, before the court without a jury; and also from an order denying a motion for a new trial, entered in the •office of the clerk of the county of Oneida on the 21st day of .January, 1889, with notice that the appellants intended to bring up for review upon such appeal the said order, and to ask that the verdict be set aside and a new trial be granted.
    This action was brought to collect, by foreclosure and sale, the amount due upon a land contract given on April 1, 1861, by J. Lee •Tinker, plaintiffs’ intestate, to Josiah Andrews, defendants’ intestate, and one George Weyand. The amount to be paid was $2,714.25, and it all became payable on or before July, 1865. The plaintiffs admitted some payments, and claimed that there was a balance due of about three thousand dollars. In 1863 Weyand transferred all his interest to Andrews, who remained in possession until his death in 1884. Tinker died in November, 1885, and his widow, the plaintiff Amanda Tinker, afterward became the owner of the fee. The heirs-at-law of Andrews and the administrator of his estate are defendants. Relief was asked, such as is usual in mortgage foreclosure.
    The defendants, in -their answers, alleged that the contract was fully paid up before the death of Andrews. They also allege that in June, 1886, they tendered to plaintiffs the sum of $316.78 and demanded a deed, which was refused, and they ask a specific performance of the contract. In June, 1887, it was ordered at Special Term that the question, “ What amount is now unpaid upon the land contract annexed to the complaint in this action,” be tried by a jury in pursuance of section 823 of the Code of Civil Procedure. Such trial'was had in May, 1888, and the answer of the jui’y to the question was, “Nothing.” Thereafter, upon a case and exceptions made and settled, the plaintiffs moved at Special Term for a new trial upon the exceptions taken, and upon the ground that the verdict was contrary to the evidence and contrary to law. This motion was denied. At the same term the case came on for the trial of the remaining issues and for final judgment. The court adopted the verdict of the jury, declining to receive further evidence on that issue, and findings were made upon which judgment was entered.
    The decision was to the effect that the agreement set forth in the complaint and proven in this cause be specifically performed, and that the plaintiffs execute and deliver to the defendants a good and sufficient conveyance in fee simple of the real estate and premises described in the first finding of fact herein; that the contract described in the complaint in this action has been fully paid, and there is nothing due upon the same; that the complaint in this action should be dismissed, with costs.
    ■ William Kernan and W A. Matteson, for the appellants.

      Williann JE. Scrvpture and Oswald P. Backus, for the respondents.
   Upon the trial before the jury the defendant Clarence Andrews was called as a witness on behalf of the defendants, and having testified, among other things, that he was a son of Josiah Andrews, deceased, and was appointed administrator of his estate in May, 1884, was asked the question: “ After the death of your father did Mi\ Tinker present any claim to you against your father’s estate.” This was objected to by the plaintiffs on the ground that the witness was incompetent and disqualified to testify by section 829 of the Code. The objection was overruled and the plaintiffs excepted. The answer was, “No, sir; he made no claim for anything due upon this contract to me.” By this ruling the ivitness, who was an interested party defendant, was permitted, in his own behalf, to negative the existence of a transaction between himself and the plaintiffs’ intestate. This was not admissible. (Clift v. Moses, 112 N. Y., 427.)

It is, however, suggested that the trial in this case before the jury was not the trial of an action ” within the provision of section 829 of the Code. It was certainly a part of the trial; it was the judicial investigation of the main issue upon the merits. Its result was accepted by the court before whom the trial was completed. No reason is apparent why the provision of the Code should not apply. It is further suggested that the verdict is substantially right, and that the evidence, without the objectionable part above referred to, is sufficient to sustain it.

It appears that the contract was executed in duplicate, each having a copy. Upon each of these some payments were indorsed. There were also payments from sales of certain portions of the premises, and about five acres were taken back by Tinker in 1868 at a certain price which was indorsed. Andrews also made some payments on mortgages that were on the premises and were to be paid out of the purchase-money. After applying all payments shown to have been so made, and deducting the amount of a mortgage still on the premises, there would still have remained at the time of the death of Andrews quite a large balance due on the contract, from eight to ten hundred dollars. Additional evidence was given from which it was claimed, as matter of inference, that the whole was paid. The defendant Clarence Andrews testified that, upon three occasions shortly prior to the death of Andrews, Tinker called upon the deceased and wanted to borrow small sums of money, and received at one of such times ten dollars, and on each of the other occasions twenty dollars. Another witness testified that, in the summer of 1885, Tinker said that “ when the papers at the bank were paid up, . Mr. Andrews was to have had his deed, and he was sorry he had not given it to him before Mr. Andrews died ; sorry it had not been settled up before Mr. Andrews died.” There was a mortgage on the property, held by a savings bank, which was satisfied in 1882, to which it was claimed this conversation referred. Another witness testified that, soon after a sale of a portion of the premises to one Behr, from the proceeds of which the savings bank mortgage was paid, she called on Tinker for payment of a debt, and he said, among other things, that place is all paid for,” referring, as it is claimed by defendants, to the Andrews place in question, although from the cross-examination of the witness the inference is quite strong that reference was only made to that part which had then been sold. The defendants also read in evidence a portion of a deposition of the plaintiff Amanda Tinker, in which she testified that, after Mr. Andrews died, Mr. Tinker said, “ that Mr. Andrews was to have had a deed when the Behr matter was settled up, and he wished he had given it to him.” The balance of this deposition was read by the plaintiffs, and it showed quite clearly, from statements of Mi*. Tinker, that there had never been any settlement between Andrews and Tinker of the amount due on the contract, and that Tinker didn’t know how much was due. She also testified that Mr. Andrews and her husband never settled up the contract.

The foregoing, with the objectionable evidence above stated, was substantially the evidence from which the jury inferred that the whole was paid. Clearly there was never any settlement between the parties. The burden of showing payment was on the defendants. In view of the apparently large balance unpaid, it may be said, with considerable force, that the evidence to sustain a finding that in some unknown way it was fully paid, was, to say the least, not very strong. This being the situation, the evidence of the defendant Andrews, that Tinker made no claim against the estate of Josiah Andrews, would' naturally he deemed by the jury to be important; and we cannot say that it probably had no influence upon them in arriving at their verdict.

On the part of the plaintiffs, it was shown that in 18Y2 Andrews was insolvent, and testified, in proceedings supplementary to execution, that he had not been able to keep up the interest on the contract; that in 1882 and 1883 he stated to several persons, in substance, that there was a large amount due on the contract, more than the farm was worth. Andrews was a justice of the peace and town clerk, and had no business except working this farm. Tinker kept a store, and there was an unsettled store account between him and Mr. Andrews.

Under section 1003 of the Code an error in the admission of evidence may, in a case of this kind, be disregarded if the court is of opinion that substantial justice does not require that a new trial should be granted. The evidence in this case is not sufficiently satisfactory to enable us to fairly say that substantial justice is done by the finding that the contract was fully paid up.

The judgment and order must be reversed upon the exceptions and new trial ordered, costs to abide the event.

Hardin, P. J., and Martin, J., concurred.

Judgment and order reversed upon the exceptions and a new trial ordered, with costs to abide the event.


author: Barnard, P. J.:

text:
    MICHAEL HUGHES, Respondent, v. THE ORANGE COUNTY MILK ASSOCIATION, Appellant, Impleaded, etc.

      Negligence — use of a hole in the sidewalk leading to a manure pit.

    In an action to recover for personal injuries sustained through the alleged negli gence of the defendant, it appeared that the defendant occupied premises in the city of New York as a stable, connected with which was a pit under the sidewalk of the street. From this pit the manure was taken through an opening in the sidewalk, the cover of which was necessarily removed at such times. At the time of the accident as the plaintiff passed through the street, which was quite dark, a strong wind was blowing in his face. He saw the smoke from the manure but did not know, and could not see, from whence it came until he fell into the hole where he was seriously injured.

      Held, that the defendant was hound to see that the sidewalk was made safe while the hole was open, and was, by the jury, properly held liable to the plaintiff for the damage sustained by him.
    Appeal by the defendant, .the Orange County Milk Association, from a judgment, entered in the office of the clerk of Kings county on the 29th day of January, 1889, after a trial before the court and a jury at the Kings County Circuit, at which a verdict was rendered by the jury in favor of the plaintiff for the sum of $4,680.
    The action was brought to recover damages against the Orange County Milk Association and Michael McGirr, because of personal injuries sustained by the plaintiff by reason of his falling into a manure pit in front of premises occupied by the defendant, the Orange County Milk Association, for a stable, from which manure was at the time being removed by workmen in the employ of the defendant McGirr.

      Richard I. Sweezy, for the appellant.

      Charles J. Patterson,, for the respondent.
   Barnard, P. J.:

The defendant, the Orange County Milk Association, occupied premises in New York city as a stable. The defendant McGirr was under a yearly contract with the association to remove the manure therefrom. There was a pit under the sidewalk of the street and the manure was taken from this pit and carried away. The covering over the mouth of the pit was necessarily removed while the manure was being taken out. The hole was of considerable size, being three or four and one-half feet by three feet, the longer side being parallel with the street. The hole was seven or eight feet deep. On the morning of the 29th of December, 1887, the plaintiff was passing along this sidewalk. There was a strong wind blowing in his face and it was qtdte dark, being about half past six o’clock. It was very cold. The sidewalk was very narrow, sufficient for only two men to walk abreast. The hole is some three feet from the curb-stone. .The smoke from the manure was dense and the wind blew it in the face of the plaintiff. The plaintiff saw the smoke but did not know it came from an open hole, as there was manure outside in the street. The plaintiff fell into the'hole and fell clear to the bottom of the pit and was injured. Assuming a cause of action, does it exist against the Orange County Milk Association under these facts ? The association was the lessee and in possession of the premises and had entire control of the use and mode of use of them. The pit was not of itself a nuisance, but became so when it was left unguarded. The cases cited to show that a landlord who has hired premises with a coal-hole under the sidewalk excavated by permission of the city, and well made, is not responsible for the neglect of a tenant who has entire possession, have no application to this case. Wolf v. Kilpatrick (101 N. Y., 146) was a case where a stranger wrongfully broke the stone supporting the covering of the hole. The case of Jennings v. Van Schaick (108 N. Y., 530) was a case where a house was rented in flats. A janitor lived in the basement. There was a coal-hole under the sidewalk, built by legal permission. The owner hired the janitor. He left the coal-hole open and the Court of Appeals held the owner liable. This case is really much stronger against the defendant company, for it had the promises and hired the man to remove the manure. This man was not a tenant, but a servant of the company. The company was bound to see to it that the sidewalk was made safe while the hole was open. (Clifford v. Dam, 81 N. Y., 52.) If this is the correct view, the question of the accuracy of the rulings in respect to the admission of the New York city ordinances as to pits under sidewalks becomes immaterial. The ordinances merely previde for the safety of the open hole and the defendants were bound to see to that without them. If the evidence in support of the extent of the injury was credited by the jury, the verdict is fully supported. The plaintiff was a strong man before the accident and was earning three dollars and fifty cents a day as a journeyman cooper. In consequence of his injury his flesh has wasted away. He has no strength to go upstairs without the aid of the banister. He cannot even walk the street for over a few minutes. He has been laid off ” from his employment because he cannot do the work, and his condition is growing constantly, but slowly, worse. He has trouble with his breathing and his heart action is. affected. The physician who attends him fixes eight years as his limit of life. It would be impossible for an appellate court to weaken this testimony, even if the rule in respect to appeals from verdicts on questions of fact permitted a review.

The jury on questions of fact are only to be subject to review in extreme cases. This is not such a case, and the judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial, affirmed,-with costs.


author: Barnard* P. J.:

text:
    ALEXANDER ARMSTRONG, Respondent, v. AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, NEW YORK, Appellant.

      Insurance — mortgagee, to whom the loss is payable to the extent of his mortgage interest, is the party “ assured ” — evidence of waiver of a condition.

    A mortgagee, to whom a policy of insurance issued to the owner of the mortgaged premises is made payable as his interest may appear, is the party “assured” within the meaning of a provision of the policy that the “ assured ” shall deliver the preliminary loss statement to the company in case of loss.
    He is an independent contractor for his insurable interest as mortgagee.
    What evidence establishes a waiver of a provision of an insurance policy to the effect that the mortgage shall not be foreclosed without the consent of the company, considered.
    Appeal by the defendant, the Agricultural Insurance Company of Watertown, N. Y., from a judgment, entered in the office of the clerk of the county of Westchester on the 26th day of August, 1889, after a trial before the court in Kings county, at which it was adjudged that the plaintiff recover of the defendant the sum of '$2,155.65.
    The action was brought to recover upon a policy of insurance issued by the defendant, the Agricultural Insurance Company, to the defendant Daniel Brown, on certain buildings, which policy contained an indorsement as follows: “ Loss, if any, first payable to Alexander Armstrong, mortgagee, as interest may appear.”

      A. H. Sawyer, for the appellant.

      Edward G. Halsey and David W. Travis, for the respondent.
   Barnard* P. J.:

The plaintiff holds a mortgage upon certain lands in Westchester county. There was a dwelling-house thereon, and the defendant issued a policy to the owner of the land, “ loss, if any, first payable to Alexander Armstrong, mortgagee, as interest may appear.” The mortgage was for $1,500, and was wholly unpaid. The dwelling-house burned down, and the first question is as to the preliminary loss papers. The condition accompanying the policy provides that the assured ” shall deliver the preliminary loss statement to the company in case of loss. The owner refused to make them out when requested to do so by the plaintiff, and plaintiff did thereupon make them out. Is the plaintiff the assured within the meaning of the policy ? In the absence of any adjudged case, it seems plain that the plaintiff is the assured. The loss, if any, is payable to him only, and a destruction of the insured property impairs liis security.

ITe has an insurable interest, and this form of policy is issued to protect that interest. The owner had no interest in the property as the case shows that the foreclosure sale resulted in a large deficiency judgment against the owner. The adjudged cases recognize the plaintiff as the owner. A mortgagee who held a policy by assignment was held to be the assured in Cornell v. Le Roy (9 Wend., 163). The Court of Appeals held, a policy with a clause, that the loss was payable to mortgagee, and that the interest of the mortgagee should not be invalidated by owner’s neglect, made the mortgagee the assured by an independent contract. (Hastings v. Westchester Fire Ins. Co., 73 N. Y., 141.)

The case of Heilmann v. Westchester Fire Insurance Company (75 N. Y., 7) has no relevancy to the question. The case decides that an election to rebuild was given to the company, and that the owner was the proper plaintiff for a breach of the option to rebuild, although the loss on the policy was payable to a mortgagee. The replacement of the building burned Avould protect the mortgagee’s interest. The case of Grosvenor v. The Atlantic Fire Insurance Company (17 N. Y., 391) is not in conflict' with the claim of the plaintiff to be the assured. The case only decides that a policy insuring an owner, with loss payable to a mortgagee, was rendered null if the owner sold the property without the consent of the company according to a condition annexed that such sale should destroy the policy. The policy in that case was held only to insure the owner, with power to pay the mortgagee what was due the owner. The present policy insures the mortgagee’s interest. The loss is payable to the mortgagee “ as interest may appear.” These words are significant. The contract is not to pay the mortgagee the sum insured, but to pay the mortgagee’s interest only. Whether the owner would have any claim against the company or the mortgagee, beyond paying what was due on the mortgage, is questionable. However that may be, there can be no question but that the plaintiff was an independent contractor for liis insurable interest as mortgagee by this contract.

The policy contains a condition that if the mortgage be foreclosed without the consent of the company, the policy shall be void. This condition was broken by a foreclosure without such consent. The trial court has found a waiver of the condition, and this presents a question of fact as to the sufficiency of the evidence to support the finding. The foreclosure was commenced January 6,1888, and a decree obtained February 4, 1888. On the 2d of February, 1888, the plaintiff’s attorney in the foreclosure sale wrote a letter to the company announcing the pendency of the same and asking for a written consent. The company made no answer to the letter. On the 10th of February, 1888, the dwelling-house burned down. Notice of loss was at once given and the company made no objection 'to the loss papers, except that the statement of loss was not made by the assured. The general agent of the company, who had his office in New York, wrote to the local agent at Peekskill on the same day he received the letter of 2d of February, 1888. The local agent was not at home and made no reply. As has been stated the company made none. The local agent denies the receipt of the letter by him until after the fire. I think the evidence shows a receipt of the letter as early as the 4th or 5th of February, 1888, by the local agent. The local agent after the fire said that it was all right, the plaintiff would get his money. This evidence seems to show either a waiver of the condition or a neglect to refuse the consent, as promptly as the occasion demanded, whereby the plaintiff was deprived of all power to protect himself by a new insurance in case of refusal. The finding of the trial judge should, therefore, be sustained. (Titus v. Glens Falls Insurance Company, 81 N. Y., 410.)

The judgment is, therefore, right and should be affirmed, with costs.

Pbatt, J., concurred.

Judgment affirmed, with costs.


text:
    DIEDRICH VON MALLEN, Respondent, v. CARL FUHRMANN, as Executor of the Last Will and Testament of EMILY FUHRMANN, Deceased, Appellant.

      Ma/rried womcm — when Mr estate is chargeable for groceries purchased by her for the family.

    Where a married woman purchases groceries to be used for the family, and expressly promises to pay for the same, stating that she owns real estate and will ■ pay for what she gels, she thereby benefits her estate and is obliged to pay the purchase-price, although she does not expressly charge her sepai'ate estate with the payment thereof.
    Appeal by the defendant Carl Eulirmann, as executor, etc., from a judgment of the County Court of Queens county, entered, upon the report of a referee, in the office of the clerk of the county of Queens on the 27th day of June, 1889.
    The action was commenced to recover the balance of an account due for certain groceries purchased by the defendant’s testatrix, who was a married woman residing with her husband as a member of his family.
    The referee, before whom the action was tried, found that the testatrix did not, in terms, charge her separate estate with the payment of the groceries purchased, but that the same were sold by the plaintiff and delivered to the said testatrix, at her request and for her benefit and on her sole responsibility, and that during such time she was the owner óf real property in her own right. It appeared that the groceries referred to in the complaint were articles of necessary use in the family, of which the said testatrix was a member, and were articles of usual family consumption.

      L. N. Manley, for the appellant.

      S. B. Noble, for the respondent.
   Barnard, P. J.:

The proof shows that the deceased, Emily Euhrman, a married woman, bought the goods of the plaintiff upon her expressed promise to pay for the same, and upon the assurance that she owned real estate and would pay for what she got.

Payments were made on her account, and in May, 1882, there was a balance struck in the cash-book of deceased at forty-seven dollars and seventy-seven cents. The account ran on until May, 1885, when a new balance of seventy-three dollars and thirteen cents was struck, deducting all payments. Subsequent payments reduced the claim to fifty-eight dollars and forty-three cents.

"When a married woman buys property she benefits her estate by the addition of the amount of the purchase, and she is obliged to pay the purchase-price for that reason. .It is not necessary for her to expressly charge her separate estate.

In addition to this bill, one Miller was proven to have assigned to plaintiff a small balance of seven dollars. The proof showed that Mrs. Fuhrman bought the goods and promised to pay lor the same.

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    THE CORN EXCHANGE NATIONAL BANK OF CHICAGO, Respondent, v. ALPHONSO W. BLYE, as Receiver of the Middletown National Bank of Middletown, New York, Appellant.

      Replevin — second action to recover damages forthe detention pending an appeal in the replevin suit— Code of Civil Procedure, secs. 1722-1691 —'measure of doomages.

    The judgment in an action of replevin only determines the title to the chattels, and after a judgment in the trial court no damages, for future detention pending an appeal, can be included therein.
    The detention after the trial is a new offense, and, under sections 1722 and 1691 of the Code of Civil Procedure, a claimant may treat such additional detention as constituting a new cause of action.
    The value of the use of the chattels during the time of the illegal detention is the proper measure of damage in the case of the replevin of a personal chattel where it has a usable value.
    Appeal by the defendant Alphonso ~W. Blye, as receiver, from a judgment of November 2, 1889, granted at a Special Term held in Kings county, overruling a demurrer interposed by the defendant to tlie amended complaint and directing judgment in favor of the plaintiff for its damages, and also from a decision of such Special Term overruling the demurrer aud directing judgment.

      William Yana/mee, for the appellant.

      L. A. Gould, for the respondent.
   Barnard, P. J.:

The action was brought to obtain possession of a chattel by the owner against one who, without right, claimed possession thereof. The plaintiff, in 1885, recovered a judgment, finding the title and the right to immediate possession to be in the plaintiff. The judgment, as required by law, fixed the then value of the property, so that if the plaintiff could not have the specific property the value might be collected in lieu thereof. It was then competent for the wrong-doer to return the property, but he did not do so. An appeal was brought by him to the Court of Appeals, where it was heard and decided in 1889, some four years after the trial and judgment. Pending this ajipeal the property fell in value nearly or quite $20,000. The defendant, upon the affirmance of the judgment, released the identical property, as he was permitted by the judgment appealed from and affirmed by the Court of Appeals. The question presented by the demurrer is, whether an action will lie, for the depreciation, by the owner against the claimant. The judgment only settled the title. The plaintiff owned the chattel, both before and after the judgment of the trial court. No damages for the future detention could be included in the judgment; and if the appeal continued an' unlawful possession without remedy, the plaintiff will not have any complete remedy for the invasion of his property rights. The cases cited that an action for damages for a wrong cannot be split up do not seem to apply to a case like this. If the action had been one for a conversion only, where the judgment would make a complete restitution in damages, no action would lie for a further' increase in value of the property pending appeal. The judgment and interest upon it would be collectible at all events. The result is not so in this action. If the contest had been about a package of bank bills, no judgment in replevin could include the interest based upon a prospective appeal, nor a depreciation pending such appeal.

This action must be supported or a wrong will go unredressed. Section 1122 of the Code was designed to give this remedy. It provides that when depreciation in value happens while the chattel is iu possession of the defendant, the plaintiff can have an action for the depreciation if it happened under such circumstances that the plaintiff might recover of the defendant for the injury or depreciation. For the damages up to the trial he has recovered. The detention after the trial is a new offense and wholly without remedy unless the plaintiff can treat the additional detention as a new cause of action under this section and also under section 1691 of the Code, which reserves the right of action, of a defeated plaintiff in replevin, to recover damages for the detention .unless the judgment was given against him on the merits. The value of the use during the time of the illegal detention is the proper measure of damages in replevin of a personal chattel when it has a usable value. (Allen v. Fox, 51 N. Y., 562.) This case referred to a horse. ITow could the usable value of the horse be recovered urdess by this action.

The judgment sustaining the complaint should, therefore, be affirmed, with costs.

Pratt, .T., concurred.

Judgment overruling demurrer to complaint affirmed, with costs.


text:
    JAMES H. G. BAKER and Another, Appellants, v. LOUIS ZIEGLER, Respondent.

      Action, to rescind a contract because of fraud, and to recover damages — if the contract cannot be rescinded becamse restoration is impossible, damages may still be recovered.

    In an action brought to rescind an agreement because of fraud and for the recovery of damages, it appeared that the plaintiffs, who, under the agreement, had acquired a kindling-wood business with a stock of wood on hand, had used up the stock of wood and had continued the business down to the time of the trial; the court thereupon dismissed the complaint because the plaintiffs had put it out of their power to make restoration.

      Held, that this was error; that the plaintiffs were entitled to recover their damages resulting from the fraud, even if they were not entitled to rescind the agreement because it was out of their power to make restoration.'

      That if the facts stated in the complaint entitled the plaintiffs to relief, they were entitled to it without regard to the name given to the action in the complaint.
    Appeal by the plaintiffs from a judgment, entered in the office of the clerk of Kings county on the 31st day of May, 1889, after a trial at a Special Term held in Kings county, at which a judgment was rendered to the effect that the plaintiffs were not entitled to any injunction herein restraining the prosecution of the notes mentioned In said decision, or the collection of the rent upon the lease therein mentioned, or the foreclosure or enforcement of the chattel mortgage therein mentioned on default, and that the existing injunction herein be vacated, and t-llat the complaint of the plaintiffs be dismissed, without costs, and without prejudice to whatever rights the plaintiffs may have to bring an action at law for damages.
    The action was brought to rescind a contract for the sale of a kindling-wood factory which the plaintiffs had purchased from the defendant on December 1, 1888.

      Walter S. Poor, for the appellants.

      Charles J. Patterson, for the respondent.
   Barnard, P. J.:

The merits of this action were not tried. The action was brought to rescind an agreement for fraud and for damages. On the 1st of December, 1888, the plaintiffs entered into an agreement with the defendant whereby the plaintiffs purchased a kindling-wood business with the stock of wood on hand, and the lease of the premises with the good will of the business, for $9,000. Three thousand dollars was paid in cash, and notes given for $6,000, with a chattel mortgage as security. The plaintiffs aver that the defendant falsely, and with intent to deceive them, misrepresented the extent of the business, the amount of the profits, the quantity of bundles of kindling wood a cord would make, and the capacity of a drying room to dry wood. That the representation was made to defraud and did defraud the plaintiffs into making an agreement. The defendant on the trial gave evidence tending to deny the same. As it appeared that the plaintiffs had used up the stock of wood on hand and continued the business down to the time of the trial in February, 1889, the court dismissed the complaint because the plaintiff's had put it out of their power to make restoration, and, therefore, this action could not be maintained. The appeal presents simply the question of the accuracy of this ruling. The plaintiffs were entitled to recover their damages for the fraud even if they were not entitled to rescind, because it was out of their power to restore. All the facts showing a cause of action were given ; and if the facts stated in the complaint entitled the plaintiffs to relief, they would be entitled to it without regard to the name given to the action in the complaint. (Getty v. Devlin, 54 N. Y., 403.) The complaint was one to rescind, and offered to reassign and deliver the property acquired, and such a complaint was upheld even where complete restoration was impossible. The Court of Appeals in Gould v. Cayuga County National Bank (99 N. Y., 333), use this language: “But that one guilty of a fraud obtained complete immunity because time or circumstance had made impossible a restoration of the parties to their original condition seemed such a reproach to the law that we added a statement of the settled and undoubted rule that though one situated like the plaintiff may not be able to rescind, he still has ample remedies. ‘lie may keep what lie has received and sue to recover for damages for the fraud, or he may commence an action in equity to rescind and for equitable relief, offering in his complaint to restore in case he is not authorized to retain what he has received.’ ” (86 N. Y., 84.)

Under this decision the plaintiffs were right in their action in equity. They could not of their own act rescind, for that requires restoration, but they may offer to restore and have their complaint to rescind when the whole controversy will be before the court. Whatever it is right that plaintiffs restore will be decreed in that action.

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

Dykman, J., concurred; Pratt, J., not sitting.

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