author: By the Court. Bosworth, J.

text:
    Murray v. Smith, Administrator, &c.
    An exception to the whole charge of a judge to a jury is too broad, and therefore bad, if any part of the charge be correct.
    The case is not altered by making the exception to the whole charge “and each and every part thereof.”
    A conveyance of an undivided moiety of mortgaged premises, “ subject to the one half part of the mortgage,” does not create a personal obligation on the part of the grantee to pay one half of the mortgage debt.
    The provision in the R. S. that “ no covenant shall be implied in any conveyance of real estate," is to be construed as meaning that no obligation, covenant, or promise to do or pay an3'thing shall.be implied against either party to such conveyance, from the terms of the conveyance itself.

      (Before Oakley, Ch. J., Paine and Bosworth, J.J.)
    Nov. 18, 19, 1852;
    Jan. 29, 1853.
    But this construction is not inconsistent with the established rule, that either party to a conveyance is at liberty to show for any purpose, except to prevent its operation as a valid grant, that its true consideration was greater or less, and even wholly different from that which it specifies.
    It follows, that evidence of an actual promise of a grantee to pay one half of a mortgage debt, subject to which the conveyance was made to him, is admissible, if, upon this promise, the deed was executed and accepted.
    Evidence of such a promise is entirely consistent with the clause making the premises conveyed subject to one half of the mortgage debt; its sole effect is to enlarge the consideration expressed.
    Nor is the statute of frauds, as excluding parol evidence of such a promise, applicable to the ease.
    While the agreement between the parties, which embraced the promise, was executory, it was binding upon neither, but when it was executed by the delivery and acceptance of the conveyance, the promise became valid and could be enforced.
    As a general rule, when improper evidence has been admitted upon a trial, and an exception duly taken, a new trial must be granted, if the evidence had any bearing upon the issue, and could possibly have had an influence upon the verdict.
    But when the cause is before the court upon a case containing the whole evidence, although it may appear that improper evidence was admitted, the verdict will not be disturbed if the court is satisfied that substantial justice has been done, and that excluding the improper evidence, the same verdict ought to have been and would have been given.

      Held, by a majority of the court, that the same rule ought to be followed when the question arises upon a bill of exceptions, which purports to contain the whole evidence given upon the trial.
    New trial denied, and judgment for plaintiff upon verdict affirmed.
    Appeal by the defendant from a judgment at special term ' upon a verdict in favor of the plaintiff.
    The action, which was commenced before the Code, was upon special promises, and the issues raised by the pleadings were tried before Mr.* Justice Paine and a jury in November term, 1851. The suit was originally brought against Peter Smith, as surviving executor of the last will, &c., of Hugh Smith, deceased. Upon the death of the executor, the present defendant, Bartlett Smith, as administrator, with the will annexed, was made the defendant.
    The first count of the declaration stated, in substance, that Hugh Smith, in his lifetime, in consideration that the plaintiff, Peter Murray, would convey to him in fee an equal undivided half part of certain lots, of ground, particularly described, in the village of Williamsburgh, undertook and promised to keep the plaintiff harmless, and indemnified from all loss or damage, by reason of the one equal half part of the moneys due and to become due upon a certain mortgage upon "the said lots, before that time executed by the plaintiff to one William P. Powers, to secure the payment with interest of the sum of $1,204, on or before the 12th of ¡November, 1838. That the plaintiff, relying upon this promise, conveyed to the testator on the 13th of December, 1835, the one equal half part of the said lots, subject to the one equal half part of the said mortgage; but that neither the said Hugh Smith, in his life, nor the defendant, sinbe his death, had indemnified the plaintiff, according to the said promise and undertaking. It then averred that the plaintiff had duly paid the one half part of the mortgage debt which he was bound to pay, but that the other half part remaining unpaid, the holder of the mortgage instituted a suit in chancery for the foreclosure thereof. That a decree in that suit of foreclosure and sale was duly made, ordering the premises so conveyed to Hugh Smith to be sold for the purpose of satisfying the amount, with interest and costs, then due upon the mortgage; and further directing, that if the moneys arising from the sale should be insufficient to satisfy such amount, &c., the said plaintiff should be decreed to pay the amount of the deficiency.' That a sale under the decree was accordingly made, and that there was a deficiency in the proceeds amounting to $532 40, which sum the plaintiff had been compelled to pay, whereby he was damnified, &c.
    The second count of the declaration differed only from the first in stating the promise of the testator, H. Smith, to be, not to indemnify the plaintiff, but to pay to th& owner and holder of the mortgage one equal half part of the moneys due and to grow due thereon.
    To these special counts the usual money accounts were added.
    The defendant pleaded the general issue and the statute of limitations, and annexed a special notice, the contents of which it is not deemed necessary to state.
    The following facts were proved upon the trial:
    . In October, 1835, Peter Murray bid off at auction eight lots of land lying in Williamsburgh, Kings county. Hugh Smith, the defendant’s testator, was present at the sale, and Murray stated in his presence, on the same day, that they, Murray and Smith, were jointly interested in the purchase, which Smith did not deny. Pinckney, the lawyer who searched the title, made out his bill for the service against Murray and Smith; and, though his recollection was faint, “ he thought that both of them spoke to him on the subject” of looking into the title and seeing the vendor. Considerable circumstantial testimony was offered, tending to show that Smith and Murray were speculators together in the purchase and sale of lands.
    The eight lots were conveyed to Murray by William P. Powers, November 12, 1835, for $1,725. And on the same day Murray gave his bond and mortgage to Powers for $1,204, part of the consideration money, payable on or before November 12,1838, with interest at six per cent, payable in the meantime, semi-annually.
    The precise sum paid to Powers on the purchase was $516.
    Murray conveyed to Smith, December 13, 1835, in consideration of $258, being one-half of the last named sum, one equal undivided half part of the eight lots, “ subject to the one-half part of a mortgage of $1,204, given by the said Peter Murray to William P. Powers,” &c. Peck, the subscribing witness to this deed, who identified Murray before the commissioner, did not recollect that any money passed between the parties at the time.
    Smith died in February, 1837. And afterwards, June 15, 1839, Murray paid to one William H. Smith, assignee of the Powers’ bond and mortgage, $602 in full, for half of the principal, and $21 30 in full, for half of the interest due thereon.
    W. H. Smith, the assignee of the bond and mortgage, filed a bill of foreclosure, September 10, 1839, for the balance due on his mortgage, against the one-half of the premises which had been conveyed by Murray to Hugh Smith, making Murray and the representative of Hugh Smith, defendants. That share was' accordingly sold under a decree in that suit; the costs were first paid, and the residue applied to the mortgage debt. The deficiency was decreed personally against Peter Murray.

      The deficiency was $532 40. The costs of foreclosure amounted to $352 79. On September 30,1843, Peter Hurray paid the deficiency which had been so decreed against him.
    Peter Hurray claimed this deficiency, in due form, from the executor, who refused to pay or to refer.
    Peter Hurray was- the purchaser at the' foreclosure sale. Hugh Smith’s eldest son, and the attorney and counsel for the executor, were present at the sale.
    It was also proved that the assignee of the mortgage purchased it, accepted the payment of one half, and foreclosed and sold for the residue at the suggestion of the plaintiff. Hpon the trial certain letters of H. Smith, the testator, were admitted to be read in evidence, which contained no reference to the purchase of the lots in question, but proved that he was jointly interested with the plaintiff in other similar purchases.
    An affidavit of the plaintiff annexed to the claim exhibited by him to the executor of H. Smith against the estate, and swearing to its validity, was also allowed to be read in evidence.
    To the admission both of the letters and affidavit, as irrelevant and immaterial, the counsel for the defendant duly excepted.
    When the testimony on the part of the plaintiff was closed, the counsel, for the defendant moved for a nonsuit upon the following grounds:
    1. That by the deed from Hurray to Smith, the equity of redemption only was conveyed for the consideration money expressed in the deed; that no covenant could be implied from such deed; that the provisions of the deed did not impose any obligation on Hugh Smith to pay the half of the mortgage, and that the testimony given in evidence by the plaintiff did not show any other consideration for that conveyance than such as was expressed therein.
    2. That the alleged agreement of joint purchase upon which it was claimed that the deed to Hurray was taken in his individual name for the benefit of himself and Hugh Smith was void, and could not enter into or form part of the-consideration of the deed subsequently executed by Hurray to Smith.
    3. That the evidence introduced by the plaintiff, of the transactions prior to the deed from Hurray to Smith, if of any effect, showed a general partnership in trading in other real estate than the premises in question, and that this suit could not he maintained.
    4. That the evidence did not support either count in the declaration.
    The judge denied the motion, and the counsel excepted to the decision.
    After the evidence on both sides was closed, the defendant’s ' counsel requested the judge to charge the jury as follows:
    1. That it was to be presumed from the deed from Hurray to Smith, that the entire contract between the parties was contained in its provisions, and that all previous negotiations had been merged in the deed.
    2. That the conveyance subject to one half the mortgage imposed no obligation, express or implied, on Hugh Smith to pay the one half of the bond and mortgage to Powers.
    3. That there was no evidence in the case of any agreement to indemnify the plaintiff from the one half of the bond and mortgage to Powers.
    4. That the plaintiff could not recover upon any of the common indebitatus counts.
    5. That whatever were the considerations existing at the date of the deed from Powers to Hurray, the legal result of that transaction was to determine any subsisting interest of Hugh Smith in the premises conveyed by that deed.
    6. That the mutual covenants and agreements in the deed from Hurray to Smith, repel any presumption that any other considerations or agreements existed between the parties in relation to the transaction than such as were expressed in the deed.
    7. That the Statute of Limitations ran against the alleged promise to pay one half the bond and mortgage.
    8. That the plaintiff was not entitled in any event to recover the entire amount of the deficiency on the foreclosure sale, but that the amount of the costs of the foreclosure suit, in any event, should be deducted.
    9. That the agreements on the part of Hugh Smith, contained in the deed from the plaintiff to him, were binding on him, although he had not signed or sealed the deed.
    But the judge refused to charge the jury as requested by defendant’s counsel in the said several first, third, sixth, seventh, and eighth of said several propositions, or any of them, to which several refusals defendaht’s counsel excepted.
    The judge, in his charge, submitted it to the jury to determine whether they were satisfied, from the evidence, that the promise set forth in the second count of the declaration had, in fact, been made by the testator. If they were so, he directed them to find a verdict for the plaintiff for the sum that was claimed.
    To which charge, and to each and every part thereof, the defendant’s counsel excepted.
    The jury found a verdict for the plaintiff for $794TW.
    The cause now came before the court upon a bill of exceptions, embracing.all the evidence given, and all the exceptions taken, upon the trial. -

      J. Van Buren, for the defendant,
    supported the demand for a new trial upon the following grounds and authorities :&emdash;
    I. The judge erred in admitting parol testimony of any negotiations or transactions, between the plaintiff and Hugh Smith, prior to the 13th day of December, 1835 (the date of the deed from Peter Murray to Hugh Smith), as they were irrelevant and immaterial, and were incompetent either to enlarge, vary, or explain the contract evidenced by the deed, or to show any agreement, relating to the bond and mortgage to Pow'ers, not contained in the deed. 1. The legal construction and effect of the deed, was to convey one half the premises, subject to the lien of one half the Powers mortgage, without imposing upon the grantee any personal obligation to assume or pay one half that mortgage. (Tillotson v. Boyd, 4 Sand. S. C. 416; 1 R. S. 738, § 140; Culver v. Sisson, 3 Com. 266.)
    Its legal expression, in the absence of other written evidence, was, that the grantee assumed the obligation thus defined, and none other. (La Farge v. Rickert, 5 Wend. 157; Cleery v. Holly, 14 Wend. 30; Mumford v. McPherson, 1 J. R. 414; Bayard v. Malcolm, 1 J. R. 467; 2 Cow. & Hill’s Notes, 1470.)
    2. The- special covenant of the grantee in the deed was obligatory on him as an agreement, although he did not sign the deed, and the written agreement, thus containing stipulations on the part of each party, merged all prior negotiations, treaties, or verbal agreements; it expressed the extent of the obligation intended to be imposed or assumed, with reference to this mortgage, and it was improper to show, by parol, any intent beyond that expressed in the writing, “ pkpressvmfacit cessare taciturn.” (Torrey v. The Bank of Orleans, 9 Paige, 659; Sinclair v. Jackson, 8 Cow. 586; Story on Cont. § 11, 15; Toussant v. Martinnant, 2 T. R. 105; Preston v. Merceau, 2 W. Bl. 1249; Van Nostrand v. Reed, 1 Wend. 424; Vandekarr v. Vandekarr, 11 J. R. 122; Howes v. Barker, 3 J. R. 509; Johnson v. Miln, 14 Wend. 200; Hunt v. Amidon, 4 Hill. 346; Niles v. Culver, 8 Barb. S. C. 207.)
    3. The parol testimony offered to show, an equitable obligation on the part of Hugh Smith to pay one half the Powers 'mortgage, arising out of a subsisting responsibility as an original joint purchaser, or a title taken by the plaintiff on joint account, was in direct- contradiction to the rights and obligations of the parties as expressed in the deed.
    The plaintiff covenants, in thé deed, that he was “ lawfully seized in his own right of .a good, absolute, and indefeasible estate of inheritance in fee simple,” in the premises conveyed, and otherwise warrants the title.
    This estopped the parties from claiming that the title- was held in trust, on joint and equal account. (Rathbun v. Rathbun, 6 Barb. S. C. 98; Sinclair v. Jackson, 8 Cow, 586.)
    And as the representatives of Hugh Smith are precluded from asserting any equitable rights growing out .of any such prior relation between him and plaintiff, the estoppel is reciprocal.
    H. The motion for nonsuit should have been granted, for the reasons urged on the trial.
    No express agreement to pay one half .the mortgage was shown, nor were there any circumstances proved from whicji an agreement tg that effect |s attempted to be implied, except the proof tending to show that the original purchase was on joint account.
    1. There were no subsisting legal or equitable considerations, at the time the conveyance from plaintiff to Hugh Smith was executed, upon which an implied agreement of Hugh Smith to pay half the Powers mortgage could he predicated. (Fowler v. Poling, 2 Barb. S. C. 300; Stafford v. Hill, 2 Hill. 353; Ehle v. Judson, 24 Wend. 77.)
    A. Any interest which Hugh Smith might have had in the original purchase was merged in the deed given, with his assent, by Powers, to the plaintiff alone, and no resulting trust existed in his favor; .nor were there any existing rights which he could enforce, or which could he enforced against him. (Padgett v. Lawrence, 10 Paige, 171; Brewster v. Power, 10 ib. 569; Lathrop v. Hoyt, 7 Barb. S. C. 59; 2 R. S. 134, § 6; 1 R. S. 727, § 47, 49; Smith v. Burnham, 3 Sumner, 458.)
    B. There was ho evidence of what transpired between the parties when the deed from Hurray to Smith was delivered, nor that any consideration existed or operated on either party, except those evidenced by the deed; or that they-dealt together otherwise than according to the legal relation then subsisting between them.
    The exception to the opinion and decision of the judge, upon deciding the motion for a nonsuit upon this point, was, for these reasons, well taken.
    2. There was no count in the declaration under which the plaintiff was entitled to recover.
    A. Ho recovery could he had upon the common mdebitakis counts, alleging money paid, loaned, advanced, and an accounting had, &e., with Hugh Smith in his lifetime.
    The indebtedness in this case, if any, was created by the decree against, and payment by, the plaintiff in 1843, five years after the death of Hugh Smith, and the granting of administration upon his estate. (Stewart v. Eden, 2 Caines’ R. 121.)
    B. Hor on either the first or second counts.'

      {a) The first count alleged that $258 cash paid, and the promise to indemnify the plaintiff against the one half of the Powers mortgage was the price of the property sold. .
    Ho such' promise was proved. A promise to indemnify against a debt is a far different promise from one to pay it. (Ex parte Negus, 7 Wend. 499; Thomas v. Allen, 1 Hill. 145; Churchill v. Hunt, 3 Denio, 321.)
    (6.) The second count alleged $258 cash paid, and the promise to pay one half of the Powers mortgage, to be the price or consideration of the conveyance.
    If any implied obligation existed on the part of Hugh Smith, there is an entire variance and misdescription of the consideration, as set out in either the first or second counts. (1 Ohitty PL, 326-7.)
    The consideration moving from the plaintiff was not alone the conveyance, but also the covenants of warranty.
    The obligation (if any) "on the part of Hugh Smith, having reference to the pre-existing relations, claimed to have existed between him and plaintiff, was not alone to pay the half of the mortgage to Powers, but also half the lawyers’ bills, and any other disbursements connected with the purchase; from which again, he was entitled to deductions for any moneys which might have been received by plaintiff on joint account. The right of either, if any existed, was to an accounting as joint tenants or tenants in common, and this is a clear case of an attempt to recover for one item of a copartnership account, or of an account between joint tenants or tenants in common, without showing either that it was the sole item (the proof being to the contrary), a balance struck, or any express promise to pay. (1 Chitty Pl., 7 Am. Ed. 44, and cases cited, notes 72, 73,74.)
    HI. The judge erred in refusing to charge as requested.
    1. “ That it was to be presumed from the deed that the entire contract between the parties was contained in its provisions, and that all previous negotiations had been merged in the deed. All the authorities cited under point I. show that this presumption was a legal inference from the written contract.
    2. “ That there was no evidence, in the case, of any agreement to indemnify the plaintiff from one-half the mortgage to Powers.” Though a payment of the principal debt might insure indemnity, yet indemnity was a very different obligation, which might well be effected without payment.
    3. “ That the mutual covenants and agreements in the deed from Hurray to Smith, repel any presumption that any other considerations existed between the parties, in relation to the transaction, than such as were expressed in the deed.”
    The proof afforded by the deed, that Hugh Smith did not assume to pay half the Powers mortgage) was so strongly presumptive of the fact, that it could only be rebutted by express' proof to the contrary. (Tillotson v. Boyd, 4 Sand. S. C. R. 416.)
    IV. The judge erred in admitting as evidence to the .jury,
    1. The affidavit of Hugh Smith. It had relation to another matter occurring about a year subsequently, and had no corn nexion with this transaction.
    2. The letters from Hugh Smith to plaintiff. They also related to other and subsequent matters.
    3. The letter from T. 0. Pinckney. As the plaintiff has only succeeded in convincing a jury of the existence of an obligation on the part of Hugh Smith, as a joint purchaser with the plaintiff, by the ingenious combination of scraps of testimony, the court cannot fail to see that the admission of either of these pieces of evidence must have had its weight with the jury; and, if either of them was improperly admitted, the defendant is entitled to a new trial. (Farm. & Manu. Bk. v. Whinfield, 24 Wend. 426; Clark v. Vorce, 19 Wend. 232; Dresser v. Ainsworth, 9 Barb. S. C. 619.)
    V. A new trial should be granted, with costs to abide the event of the suit.

      C. O'Conor for plaintiff, contra.

    I. The acceptance of the deed by the defendant’s testator was sufficient evidence of a promise, on his part, to pay the one half of the mortgage to Powers. (Burdett v. Lynch, 5 B. and Cr.; Wolveredge v. Steward, 9 Bingh. 60.)
    H. If the words. of the deed are in this respect obscure or doubtful, extrinsic evidence was admissible to elucidate their meaning. (Bradley v. Washington Packet Co. 13 Peters 97, 101, 103; Cole v. Wendell, 8 Johns. 116; Walrath v. Thompson, 4 Hill. 201.)
    HI. This was a suit for an ascertained sum paid by plaintiff" to the use of the testator in the course of a joint speculation in lands.
    • 1. The objection that an executory copartnership for the purpose of dealing in lands, is repugnant to the statute of frauds, has no application, after the titles to the lands are all settled by deed, as in this case. (Smith v. Burnham, 3 Sumner, 458; Hess v. Fox, 10 Wend. 440; Griffith v. Young, 12 East. 523; Hall v. Hall, 8 N. H. R. 131; Barber v. Taylor’s heirs, 9 Dana, 87.)
    IY. The circumstances of the case show clearly that the price-agreed to be paid by the defendant’s testator for the conveyance to him by Murray, was one half of the original consideration money; which includes, of course, one half of the mortgage.
    1. The consideration clause of a deed has always been considered open to explanation, enlargement, or contradiction by oral evidence, for the purpose of giving efficacy to the conveyance, or of establishing any mere personal claim growing out of the transaction. (Shepard’s Touchstone, 222; Jackson v. Fish, 10 J. R. 456,16 J. R. 515; McCrea v. Purmont, 16 Wend. 460; Groenvelt v. Davis, 4 Hill, 647, 5 N. H. R. 82.)
    2. The only limitation to this kind of proof, is, that it cannot be received to avoid the conveyance, or to defeat the title thereby created.
    • Y. There is no ground for deducting the costs of the foreclosure. - *
    1. If the mortgagor had sued Murray upon his bond, or foreclosed the mortgage against Murray’s share of the lands, the latter would have had a right to insist, as against Hugh Smith’s representatives, that Hugh Smith’s share of the land should be first applied to the payment of the debt. (King v. Baldwin, 17 J. R. 390, 391, 393; 10 Wend. 162; 13 Wend. 176.)
    2. In case of a suit at law upon the bond, Murray could have filed a bill to compel a foreclosure as against Hugh Smith’s share, which would have been, in itself, substantially a foreclosure bill. The proceeding adopted was precisely to the same effect. (1 Evan’s Pothier, p. 412; 2 Comstock, 229, 231, 234; 2 Denio, 45, 61; 9 Paige, 454; 1 Cowen, 513, 539, 540 ; 17 Mass. R. 173.)
    3. The executor of Hugh Smith was bound to indemnify Murray against the balance due on the mortgage. He had a right to a credit by way of deduction, to the extent of the sum realized from the mortgaged premises; but the sum realized was the net proceeds of the mortgage sale, and not the gross proceeds thereof.
    VI. The plaintiff is entitled to judgment upon the verdict.
   By the Court. Bosworth, J.

This action was commenced prior to the enactment of the Code, and was tried in November, 1851. The questions presented to us for consideration arise upon a bill of exceptions taken at the trial, and are questions of law only. I am of opinion that the charge given to the jury was substantially unexceptionable, and that no error was committed at the trial, unless it was in refusing to nonsuit the plaintiff, or in the admission of evidence against the objection of the defendant.

An exception to the whole charge, and to each and every part thereof, is too broad, if any part of the charge be correct. It is the province of an exception to a charge at the trial to call the attention of the judge directly to the objectionable part, so that if there be error he may correct it at once. An exception to the whole charge is too broad, unless it is all wrong; and the addition of the words, “ and each part of it,” makes no difference. (Jones v. Osgood, Court of Appeals, April 16, 1850.)

The first question is, Was there sufficient evidence to justify submitting to the jury the question whether Hugh Smith made the promise stated in the second count of the declaration ? The testimony shows that on the 22d of October, 1835, at a public sale at the Merchants’ Exchange of a large number of Williamsburgh lots, the plaintiff purchased eight, as the highest bidder for the same, at prices amounting in the aggregate to $1,720.

By the terms of sale, ten per cent, of the purchase money was to be paid down, the balance on the 12th of November, when deeds were to be delivered to the purchaser, who was to have the privilege of giving his bond and mortgage for seventy per cent, of the purchase money, at one, two, or three years, at six per cent, interest.

Subsequently, but on what day does not expressly appear, Powers, the owner of the lots, executed and delivered to Murray a deed of them, dated Hot. 12, 1835, and received from Murray his bond, and also his mortgage of the same lots, conditioned to pay $1,204, on or before the 12th of Hovember, 1838, with interest semi-annually at six per cent.—the bond and mortgage both declaring that they were given to secure the payment of part of the consideration money expressed in the deed from Powers to Murray. The $1,204 was seventy per cent, "of such purchase money. The balance of such purchase, being $516, was in fact paid by Murray to Powers on the 7th of December, 1835. I deem the date of this payment a significant fact in connexion with other evidence given. Whether Powers delivered his deed to Murray, and took from the latter his bond and mortgage, before or on this day, does not expressly appear. If before, then those papers were exchanged before any part of the purchase money had been paid. For the $516, which included the ten per cent, payable on the day of sale, was not actually paid until the 7th of December. On the latter day, Murray executed and delivered to Hugh Smith a deed of an undivided half of the eight lots, which expresses its consideration to be $258, being precisely half of so much of the consideration as Murray that day paid to Powers. The deed conveyed to Smith an undivided half of the eight lots, “ subject to the one half part of a mortgage of $1,204, given by the said Peter Murray to William P. Powers, on the said lots, tlie_ 12th day of Hovember, 1835, with interest at six per cent, payable half-yearly.”

Smith and Murray were both present at the auction sale on the 22d of October, 1835, and stood near each other when the sale of the eight lots of ground was going on. Murray there stated to James Moore, in the presence of Smith, that Smith “ was joined with him in the purchasing of said lots of ground on that day.” Smith expressed no dissent to the truth of this remark. .

There can be no doubt that Moore speaks of a conversation had at this particular sale. The lots were sold by Mr. Franklin as auctioneer. Moore says Franklin was auctioneer at the sale of which he was testifying; that he himself bought in four lots, but did not complete his purchase; that he knows of no other sale in which Murray or Smith was concerned; and that both Smith and Hurray purchased at that sale. Powers says that Hoore bought four lots at that sale, but did not complete his purchase. I think the conversation of which Hoore testified took place at the time of the sale and purchase of the eight lots in question. It appears that Powers made a statement relative to this purchase, in the form of an account;

Debiting Hurray with the price . •. . $1,720
Crediting him with the amount of the bond
and mortgage.....1,204
Striking a “ balance to be paid ” of . . . $516

And also charging him for drawing the bond and mortgage, and the expenses of acknowledging and recording the latter, amounting to $7 124.

. There was evidence tending to show that this statement had been in the possession of Hugh Smith, and that he had written some figures thereon, but under what particular circumstances, or for what specific purpose, did not expressly appear.

It further appears that the deed from Hurray to Hugh Smith, although dated the 13th of December, was acknowledged, and the county clerk’s certificate of the official existence and signature of the person before whom it 'was made, was obtained on the 7th of December. They bear date on that day, and the deed was recorded on the 11th of December, two days prior to its date.

The subscribing witness to the deed testifies that he met the plaintiff and another gentleman in the street. Hurray said he wanted a man as a witness, and he went with them to the office of Judge Ingraham, and testified to the identity of Hurray. He saw no money paid at the time. This acknowledgment being made and certified, the certificate of the county clerk was obtained, and on the same day Hurray paid to Powers all of the consideration, except that secured by the bond and mortgage of Hurray. If in point of fact the bond and mortgage by Hurray to Powers, and the deed from him to Hurray, were not delivered before the thirty per cent, of the purchase money or any part of it was paid, then the evidence would be quite strong to show that the delivery of the deed from Powers to Murray, of the bond and mortgage of the latter to the former, and payment of $516-, the balance of the purchase-money, and the delivery of the 'deed from Murray to Smith, and payment by the latter of $258, half of the portion of the purchase money that day paid to Powers, were contemporaneous transactions. It will be borne in mind that the consideration expressed in the deed from Murray to Smith is just one half of the part of the consideration money advanced in cash to Powers, and that the deed is by its terms made “ subject to the one half part of the mortgage ” given upon the eight lots to secure the balance of the purchase money.

It seems to me that the evidence was sufficient to justify the jury in finding that these .lots were bought by Murray and Hugh Smith on joint' account; that Smith advanced one half of the $516 paid in cash, and took a deed of an undivided half of the lots thus bought on joint account, on a promise that he would pay one half of the unpaid part o’f the purchase money to the holder of the mortgage executed as security for the payment of it according to the terms of payment stipulated in the mortgage; that there was sufficient evidence, exclusive of any to result from the fact, that the deed by its terms conveyed the undivided half of the lots “subject to the one half part” of the mortgage.

The judge charged the jury that the deed from Murray to Smith imposed no obligation upon the latter to pay the one half part of the bond and mortgage. I do not understand the defendant to complain that this was not sufficiently favorable so far as the effect of the deed itself was concerned. Such a deed, executed sincé the Revised Statutes took effect, would not, alone and of itself, obligate the defendant to pay any part of such bond and mortgage. There is not any express promise to pay it found in the deed, nor any recital of the fact of such an agreement having been made contained in it.

1 R. S. 738, § 140, declares that “ no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.” I assume that the fair meaning of this statute is that no" obligation, covenant, or promise to do or pay anything shall be implied against either party-to such conveyance, from the conveyance itself. If this he so, then it is obvious that the deed itself cannot per se be sufficient evidence of any promise not expressed in it to do or pay anything.

Though this be so, I think the law must be deemed to be settled in this state, that either party is at liberty to show for any purpose, except to prevent its operating as a valid and effective grant, that its consideration was different, greater, or larger than that named in it, and not wholly or at all pecuniary, in a suit by the vendor against the vendee to recover the actual consideration agreed to be paid, or in a suit brought by the vendee against the vendor on the covenants of seizin, or against incumbrances. (McCrea v. Purmont, 16 Wend. 460; Bingham v. Weiderwax, 1 Coms. 509; Haverly v. Becker, 4 Coms. 169.)

If the latter proposition be correct, then it follows that any evidence which legitimately tends to prove that the deed was executed and accepted-on a promise by Smith to pay half of the mortgage from Hurray to Powers was admissible. The opinion has been expressed that the evidence given was sufficient to justify the jury in finding that fact. If no improper evidence was admitted against the objection of the defendants, then the plaintiff is entitled to a judgment upon his verdict.

I do not think it follows that although the deed is not to be deemed of itself sufficient or any evidence of such a promise, therefore it is not to be admitted as evidence for any,purpose. It is admissible to prove the fact of the conveyance of the land, and what interest in it was conveyed. If it recited the fact that it was made upon a promise of Hugh Smith to pay a half part of the mortgage in question, then, on proof that he accepted the deed, and entered under it upon the premises conveyed by it, the deed might of itself be sufficient evidence of the making of the recited promise. (Torrey v. The Bank of Orleans, 9 Paige, 649, 658-9; S. C. 7 Hill, 260.)

The clause, “ subject to the one half part of the mortgage,” is possibly consistent with the idea that Hugh Smith bought the equity of redemption of an undivided half of the lots, subject to an incumbrance upon them to the extent of half the amount of the mortgage without any promise to pay it, and that it was the understanding of the parties that it was optional with him whether he would pay it, or allow the lots to be sold to pay it, and that Murray was willing to sell in that way, talcing the risk of the undivided half of the lots being at all times an ample security for the one-half of the mortgage which he was personally liable to pay. However this may be, the clause is certainly consistent with the fact, if not some evidence of the fact, that the deed was made, delivered, and accepted upon a promise of Smith to pay one half part of it.

There are cases which strongly favor the proposition that a deed containing such a clause as this, and executed under circumstances operating less strongly in aid- of it, is evidence of, and virtually expresses a_ promise to pay the mortgage or encumbrance subject to which it declares itself to have been made. (Wolveridge v. Steward, 9 Bing. 60, Bosanquet, J.; Minor v. Terry, &c. 6 How. P. R. 211; Jumel v. Jumel, 7 Paige, 549-595.)

But conceding that it was neither an express promise, nor of itself evidence of a promise, to pay the mortgage, still no error was committed in any instruction given to the jury respecting it. The jury were substantially told that the deed imposed no obligation on Smith to pay one half of the bond and mortgage.

The statute of frauds has no application to the case. It may be conceded that while the contract remained executory, it was not binding on either party, yet when it had become executed, by a conveyance to Smith of his interest in the joint purchase, upon his promise to pay half of the original contract price, the promise could be enforced. (Fish v. Dodge, 4 Coms. 307-311.)

It needs no citation of authorities to show that a vendor, who has conveyed to a purchaser real estate sold, may recover from him the consideration agreed to be paid for the land so sold and conveyed.

For the reasons that have -now been given, we all agree in the opinion that the motion for a new trial should be denied, if there was no error in the decision of the judge,—admitting as evidence the affidavit of Hugh Smith, the two letters from him to the plaintiff, and the letter of Mr, Pinckney to the plaintiff.

The affidavit was made in October, 1846, and showed that other land had been purchased of one Luther, in the name of Murray, on the joint account of himself and Hugh Smith; and that the latter was interested in such purchase to two thirds of its amount. It contained no allusion to . the purchase in question.

One of the two letters was dated the 13th of January, and the other the 3d of February, 1836. They do not allude to this transaction; but tend to show an intimacy in business transactions between the two, and that Mr. Pinckney acted as the legal adviser of Murray, as well as of Smith. , '

The letter from Mr. Pinckney to the plaintiff, according to its terms, inclosed some small bills alleged to be against the plaintiff and Hugh Smith, requesting payment the next day. There is no evidence that Smith saw or knew of the contents of this letter.

This evidence was objected to by the defendant, as being inadmissible for any purpose, and the decision of the judge admitting it was excepted to. The correctness of this decision is raised by a bill of exceptions.

' The plaintiff’s counsel does not contend that this evidence is admissible for the purpose of showing that the purchase in question was made on joint account, or that the deed to Smith was made on his promise to pay one half of the mortgage as a part of the consideration agreed to be paid for the land.

But it is contended that it was competent to show the situation of Murray and Smith towards each other, that they had had business transactions with each other of a similar character, not with a view to establish this to have been a joint transaction, or that the deed to Smith’was made and accepted on the promise alleged, but for the purpose of leaving the evidence tending to establish that the purchase was on joint account, and the making of the alleged promise, unimpaired in any respect by any such considerations, as that, if a joint purchase, it was, for aught that appeared, a transaction between entire strangers, and the only one that had ever occurred between them.

' On the other hand, it is insisted that the evidence was not admissible for any purpose; that it might have influenced the jury in coming to the conclusion that this was a joint transaction, and that, on a bill of exceptions, the court is not at liberty to speculate upon the question whether the other party was prejudiced by the admission of improper evidence admitted against his objection, but that if it has been thus admitted, he is entitled to a new trial as a matter of strict right.

In Marquand v. Webb (16 J. R. 90), an incompetent witness proved a fact, which was fully proved on the trial by two other witnesses. The court said that “ although the fact proved by him was proved by two other witnesses, we cannot say, the cause coming before us on a writ of error, that his evidence may be rejected as unnecessary.” On this ground a new trial was granted.

In Osgood v. Manhattan Co. (3 Cowen, 612, 618), in the court for the correction of errors, it was held, that if improper evidence be given in the court below, though it be merely cumulative, the judgment will be reversed.

The court said: It is well settled, that if improper evidence be given, although it be cumulative only, the judgment must be reversed: for we cannot say what effect such evidence may have had upon the minds of a jury.”

In Worrall v. Parmelee (1 Coms. 519), the declarations of Brower, from whom both parties claimed to have purchased the property in controversy, were proved on the part of the defendant, to the effect that he had sold the property to the defendant. The plaintiff objected to this evidence, and excepted to the decision admitting it.

The plaintiff, in a subsequent stage of the trial, called Brower as a witness in relation to the sale, and his evidence tended strongly to show that he had sold the property to the defendant prior to the time when the plaintiff claimed to have purchased it.

The court said: “ There are many cases which hold that an error in the court below, which, on its face and by legal necessity, could do no injury, is not cause for a reversal of the judgment. But where the error is in the admission of illegal evidence, which bears in the least degree on the question in issue, it cannot he disregarded.”

There are cases, in, which, although improper evidence was nearly admitted, the courts refused to interfere, on the ground that exclusive of such improper evidence, there appeared to he enough to sustain the verdict of the jury.

On examination, it will he found that those decisions were made in suits in which the question arose upon a case containing all the evidence, or in which the peculiar office of a hill of exceptions was inadvertently overlooked. (Cowen and Hill’s Notes, 787-8.)

The sole object and end of evidence is, to ascertain the truth of the several disputed facts or points in issue, on the one side or the other, and no evidence ought to be admitted to any other point. As it is a rule of pleading, that the issue should be on a material point, so it is an essential rule of evidence, that the proof should be material and relevant to the issue. (1 Stark. Ev. 169.)

If it be conceded, as I think it must be, that the affidavit and letters were not competent evidence to prove the truth of any issue, for the reason that they did not tend to prove it, it is difficult to specify any ground on which they could be admitted for any purpose. They were given in evidence before the plaintiff rested. They were not introduced to explain any fact proved or evidence given on the part of the defendant. If their admission as evidence can be sustained, it'must be for the reason that they are competent for the purpose of repelling some inference unfavorable to the plaintiff, which a jury might draw from his other evidence, or for the reason that they tend to prove some material issue. There is no ground for claiming the first part of the proposition to be true, unless the latter be also true. But they have no relation to the matters in controversy, and therefore are not admissible to aid in establishing the truth of the plaintiff’s case.

There is no intrinsic improbability that such a transaction occurred, as the plaintiff alleges. Whether it did or not, is a matter of proof. It does not' tend to establish the affirmative of the issue in this case, that another transaction of a like character had taken place between the parties, or that their business relations were intimate; nor can such evidence be given for the purpose of strengthening the evidence given to prove the alleged promise, or to divest it in any degree of any unsatisfactory features which it may possess, or of any unfavorable inferences, with which it may be supposed a jury may justly regard it.

I deem this evidence inadmissible for any purpose. And although I should not have felt at liberty to disturb the verdict, if this evidence had not been given, yet having been given against the objection of the defendant, and an exception having been taken to the decision admitting it, and the questions as to the admission of it being raised by a bill of exceptions, the court, according to the decisions cited, have no discretion to exercise, in determining whether a new trial should or should not be granted. Unless a discrimination can be made between this case, and the cases of Marquand v. Webb, Osgood v. The Manhattan Co., and Worrall v. Parmelee, the defendant would seem to be entitled to a new trial, as a matter of strict right.

The reason why the court will not always grant a new trial on a case, notwithstanding it appears improper evidence was given against the objection of the defeated party, and an exception taken to the decision admitting it, is, that a case is supposed to contain the whole evidence, and if the court of review is satisfied that substantial justice has been done, and that the verdict ought to, and would, have been the same, if the evidence excepted to had not been given, it will not disturb the verdict.

On the other hand, the theory of a bill of exceptions is, that it contains only so much of the evidence given as is necessary to properly raise the points sought to be reviewed on error, and therefore the court has not the means before it of accurately judging whether the objecting party may or may not have been prejudiced by the iinproper evidence, whose admission is complained of. It may, perhaps, be fairly claimed, that the bill of exceptions in this case contains all the evidence given. When the plaintiff rested, the defendant moved for a nonsuit on the ground, among others, “ that the evidence did not support either count in the declaration.”

A nonsuit was refused, and the decision of the court excepted to.

One of the points argued before us is, that the court decided erroneously in refusing to nonsuit. To properly presept tips ' question before us, it was indispensable that all the evidence given when the plaintiff rested, should be contained in the bill of exceptions. As it is drawn, it may be said, perhaps, that it purports to contain the whole of it, and also all that was subsequently given by the defendant. If it may be assumed that the bill of exceptions contains the whole evidence, then there would seem to be no good legal reason for not refusing a new trial on a bill of exceptions, if in the same case, and on precisely the same evidence, one would be refused on a case where the evidence was objected to, and the decision admitting it excepted to in the same manner in the one case as in the other.

Whether the court of last resort, to which an'appeal can be taken on questions of law only, will countenance a practice, which may create the necessity of incorporating in the record the whole evidence, and of reviewing it, in order to determine whether improper evidence may or not have prejudiced the rights of the party excepting to its admission, it is unnecessary to attempt to conjecture. Unless it will do that, I cannot resist the conclusion, that the exception to the admission of the evidence in question was well taken, and that a new trial should be granted.

My .brethren being of the opinion that under all the circumstances of this case, the verdict should not be set aside on account of the admission of this evidence, the motion for a new trial must be denied, and a judgment in the proper form entered in favor of the plaintiff on the verdict.


source: Caselaw Access Project

author: By the Court. Paine, J.

license: Public Domain

text:
    Morgan v. Bank of State of New York.
    A bank paying a cheek, payable to order, upon a forged endorsement of the payee, is liable for the amount, either to the payee or to the drawer, whose . funds are so applied, if the cheek was the property of the payee, the bank is liable to him. If the check never passed to him by a delivery, and he had no interest in it whatever, the liability of the bank is to the drawer.
    Such a check cannot be treated as payable to a fictitious person, or to bearer; but the payee, being a real person, the presumption of law is that it was drawn with the intent of vesting a title in him, and in him alone.

      (Before Oakley, Ch. J., Paine and Emmett, J.J.)
    Jan. 20;
    Jan. 29, 1853.
    Henee, it is only from the payee that a third person can derive a valid title.
    If the cheek never became the property of the payee, it is a necessary inference that it was obtained and put into circulation by fraud.

      Held, upon these grounds, that the plaintiff was entitled to recover the amount of two cheeks, drawn by him and paid by the defendants, upon the forged endorsement of the payees.
    Judgment accordingly.-
    The plaintiff, by Ms complaint, demanded judgment for the sum of $916t/7, as moneys deposited by him with the defendants, and which, upon request, they had refused to pay.
    The defence was, that the defendants had paid to the order . of the plaintiff, upon two checks drawn by him, one dated April 29th, 1852, for the sum of $291Tf„ ; the other dated Hay 3d, 1852, for $445tW ; the whole sum demanded by the complaint.
    The cause was tried before Hr. Justice Duer and a jury on the 10th of November, 1852.
    Upon the trial the plaintiff’s counsel read in evidence the following stipulation, signed by the attorneys of the parties:—
    This action being brought to determine the disputed question of the defendants’ right to charge the plaintiff in account Avith the amount of two checks drawn by him upon the defendants to the order of G. W. Corlies & Co., one dated April 29, 1852, for two hundred and seventy-one dollars and four cents, and one dated Hay 3,1852, for four hundred and forty-five dollars and eighty-eight cents, the endorsements upon wMch are alleged to be forgeries, it is stipulated by the defendants that they will admit upon the trial the deposit by the plaintiff Avith them of the sum of seven hundred and sixteen dollars and ninety-two cents, as averred in the complaint, and a request made of them by the plaintiff, before the commencement of this action, to pay him the said sum, and their refusal so to do by reason of their claim to charge him with such checks, and that at the time of such request, the said sum of seven hundred and sixteen dollars and ninety-two cents remained on deposit to his credit, unless he is properly chargeable with such checks. And the plaintiff stipulates tq admit, for the purposes of tMs action, that if he is chargeable with such checks, he had no funds on deposit with the defendants at the time of such request.
    The plaintiff thereupon rested.
    The defendants’ counsel then produced two certain checks,' in the words and figures following:—
    “Hoi 498.
    “ Hew York, April 29th, 1852.
    “ Bank of the State of Hew York.
    “ Pay the order of G-. W. Corlies & Co., Two hundred and seventy-one T°„\ Dollars. , °
    “ M. Morgan.
    “ $271T°/o •
    (Endorsed)
    “G. W. Coretes & Co,”
    “Ho. 519. '
    “ Hew York, May 3d, 1852 “ Bank of the State of Hew York. ■
    “ Pay the order of G. W. Corlies & Co. Four hundred and forty-five TW Dollars.
    “ M. Morgan.
    “$445tW
    (Endorsed)
    “ G. W. Coretes & Co.”
    ' The plaintiff’s counsel admitted that said checks were signed by the plaintiff, but did not admit that said checks had been endorsed by the payees thereof, and contended that the defend- ' ants were bound to prove the genuineness of "the endorsements ■ appearing thereon.
    The presiding justice, however, ruled and decided, for the purposes of the trial, that in respect of the genuineness of such endorsements, the burden of proof was upon the plaintiff to show, that they were not genuine, to which decision the plaintiff’s counsel excepted.

      The plaintiff then called as a witness*
    George W. Corlies, who, being duly sworn, testified as follows :—I am a member of the firm of G. W. Oorlies & Co., which is composed of myself and Royal H. Waller, and was so in May and April, and up to first November. (Checks shown to him.) These signatures are not in the handwriting of our firm, or of any clerk thereof.
    Oross-exanvMied^We never had any dealings with Matthew Morgan; he did not owe us anything; the checks were never in our possession* and were never delivered by anybody to us, or for our firm.
    The jury, thereupon, by direction of the court, found a verdict for the plaintiff in the sum of seven hundred and thirty-nine dollars and ninety-one cents, subject to the opinion of the court, on a case to be made, with liberty to either party to turn the same into a bill of exceptions

      W. M. Evarts, for plaintiff.
    The judge upon the trial stated that he had no doubt of the right of the plaintiff to recover, and it Was at the request of the counsel that he took the verdict subject to the opinion of the court. He said then all* that I deem it necessary to say now, that there was nothing in the case to prevent the application of the general rule * that a bank can only justify the payment of a check payable to order, by proving the endorsement of the payee, as well as the signature of the drawer, to be genuine. When either is shown to be forged, the bank must be liable to the person entitled to the funds wrongfully paid—generally the payee is the person so entitled—but the proof in this case establishes the right of the plaintiff. He therefore demands judgment upon the verdict.

      A. W. Clason, jun., contra.
    The issue to be tried was the forgery of the endorsements, and it was rightly held that the affirmative rested upon the plaintiff. I say rightly held, because the plaintiff is substantially the party averring the fact in dispute; because the person for whom the checks were drawn is a matter within his cognisanee, and not within the cognisance of the defendant, finally, because the checks bearing endorsements according to their tenor, and being paid by the defendants, the presumption of law is in favor of their being honest endorsements.
    Banks are responsible. for forgeries and alterations, but it would be as reasonable to require them to prove the sum in a check to be that originally written, as to prove the party to whose order a check is drawn.
    The plaintiff proved by GL W. Corlies, that the endorsement was not that of his firm; the defendants proved by the same witness, that the check was not theirs. So far there was no proof of forgery, but some proof of the payee being a fictitious person; in which case the check was payable to bearer. (1 Coms. 113.)
    If G-. W. Corlies & Co. were the payees, as they had no interest in the checks, the holder and the bank had a right to treat the bill as payable to bearer; or, if the check was given by the plaintiff to a third party, not Gr. W. Corlies & Co., the plaintiff thereby authorized him to endorse it, and is estopped from denying the genuineness of the endorsement.
   By the Court. Paine, J.

Although no explanation was given upon the trial of the purposes for which the checks were drawn, nor of the circumstances under which they passed from the possession of the plaintiff,-it seems to us, there is no reasonable ground upon which his right to recover in this action can be doubted. When a bill'or check is payable to order, to justify the application to its .payment of the funds of the drawer, ■ it must be proved that the required order was in fact given—in other words, it must be proved that the endorsement was genuine—and the burden of this proof rests upon the person, or bank upon whom the bill or check is drawn. Where the endorsement of the payee is shown to be forged, the payment of a check by the bank is in its own wrong, and can never be set up as a defence against the person whose rights it violated, or whose funds are misapplied. In all such cases, the bank must be liable to some person to the extent of such wrongful payment. If the check at the time was the property of the payee, it is to him that the bank is liable ; but if it had never passed into his hands, and he had no interest in it whatever-—and such are the facts in the ease before ns—they are the funds of the drawer that have been misapplied, and which the bank is bound to replace. It is the plaintiff, therefore, who is entitled to maintain this action.

It is impossible for us to treat these checks as payable to bearer or to a fictitious person; as the payees are real persons, the presumption of law is, that the checks were drawn with the intent of vesting the title in them,' and in them alone. Consequently, it was only from them that a title could be derived, and only upon a title given by them, and evidenced by their endorsement, that a valid payment could be made. As the checks were never delivered to them, and they were not the holder’s of them at any time for value, or otherwise, it seems to us a necessary inference that it Was by the fraud of some third person that the checks were obtained and put into circulation. The loss resulting from this fraud the defendants must sustain, and against its perpetrator must seek their remedy.

The supposition that the plaintiff delivered the checks to some third person, to whom he gave an authority to put them into circulation by endorsing the name of the payees, is something worse than gratuitous. We reject it wholly—there is no proof of such a delivery, and the plaintiff could give no such authority;—and, assuredly, we shall not impute to him, in order to protect the defendants, the design of enabling a third person, by means of a forgery, to effect a fraud.

The plaintiff must have judgment upon the verdict.


text:
    Parsons v. Travis and the Mayor, &c., of New York.
    (Before Campbell, Bosworth, and Emmett, J.J.)
    Dec. 6, 1852;
    Feb. 26, 1853.
    The court will not restrain the erection and continuance of a lamp-post and lamp in front of or near a dwelling-house, upon the ground that it is a nuisance to the owner or inhabitants, unless the fact that it is so is clearly established by the proofs.
    Whether such an erection shall be permitted or continued, rests in the discretion of the corporation of the city, and when no special injury is shown, the court has no right to restrain the exercise of this discretion.
    Judgment dismissing complaint affirmed with costs.

      This was an appeal, by the plaintiff, from a judgment at special term, dismissing the complaint with costs.
    • The following is an abstract of the pleadings:—
    The complaint alleges that the plaintiff is the owner of the house and lot Ho. 8 Barclay street, in the city of Hew York; that the house is twenty feet wide on first story, and twenty-five feet wide on the second story; that attached to the house is a vault twenty-five feet wide, built under the side-walk; that between this house and Ho. 10 Barclay street, there is an alleyway ten feet wide, half under each house, running back the whole length of the lots; that the vault extends to the centre of the alley-way; that the plaintiff’s house is intended for a store on the first story, and a dwelling-house in the upper part; that the defendant, Travis, has put down a lamp-post in the street, so sunk as to be two feet and a half within the extreme line of the plaintiff’s side-walk (supposing it to extend to the centre of the alley-way), that in sinking the lamp-post, the plaintiff’s vault was injured; that the lamp is so constructed as to be an annoyance and injury to his house; that plaintiff is injured two hundred dollars a year in the rent of the upper part of the house, the tenant being willing to pay that much more if it is removed; that the lamp is lighted nightly; that it is not required in the street; that the defendant Travis justifies himself by the alleged permission of the Corporation, &c.
    Asks for an injunction order, pendiente Mte, against lighting the lamp, &c., and for a final judgment of removal, &c.
    The answer of the defendant Travis denies that the boundaries of Ho. 8 Barclay street extend to the location of the lamp-post. Alleges that the Messrs. Meeks own the fee of the alley-way, and that they have given permission to the defendant, Travis, to put the lamp-post down. Denies any injury to the plaintiff’s vault in sinking the lamp-post, or any injury to the plaintiff’s property in any way, by reason of its being put down. Alleges that it is benefited by it; alleges also that the plaintiff’s house is a gambling house, &e.’; that the lamp is a public convenience, and that besides the Messrs. Meeks, the agents of the Corporation have assented to -the lamp-post being put down, &c.
    The reply of the plaintiff alleges mainly that David Hosack was the original owner of Hos. 8 and 10 Barclay street, and of the alley-way and premises in the rear; that he fashioned the premises in their present form; that they have remained so for twenty-five years and upwards, and denies generally all allegations of new matter in the answer.
    The Corporation demurred generally to the complaint for want of equity.
    The cause was heard before Mr. Justice Campbell, upon the issues of fact and of law, upon the 13th of November, 1851, and upon the 24th of January, 1852, he dismissed the complaint as to all the defendants with costs.
    The learned judge made and caused to be filed the following statement of the grounds of his decision:—
    • “ I found in this case that, the alley-way mentioned in the pleadings and evidence, belonged to Meeks, the landlord of defendant Travis, that the lamp-post in question was put down by the defendant Travis, by and with the consent and permission of Meeks and the Corporation, which consent and permission they had a right to give. That the plaintiff had been, by himself and his grantors, for more than twenty years in undisturbed possession of the vault mentioned in the pleadings and evidence, but I considered that such enjoyment of the vault so far as the same extended under the front of the alley-way in question, gave to the plaintiff simply an easement, and carried no right to the surface of the street or side-walk ; I further found that the lamp and lamp-post were not a nuisance.
    “ On the trial and argument of the case, it was agreed by the respective counsel, that the demurrer interposed by the Corporation should be treated and considered as a general demurrer.
    “ I thereupon decided, that the plaintiff did not show a right to have the lamp-post removed, and that he could not in this suit recover any damages, and I ordered the complaint to be dismissed as to all the defendants with costs.
    “ William W. Campbell.
    “ To the several conclusions of law above contained and decided the plaintiff’s counsel then and there duly excepted.
    “W.W. 0.”

      The case was now heard upon the pleadings, proofs, and exceptions.

      J. Graham, for the plaintiff and appellant,
    insisted that the judgment ought to he reversed upon the following grounds:—
    I. It was not necessary to show pecuniary damage to entitle the appellant to,a judgment for a perpetual injunction order against the lamp and lamp-post in question, or for judgment of removal, &c. If it can be seen that Travis intended to do him an injury, or that such is the inevitable result of Travis’s act, an injunction order is proper. The highest office of an injunction is prevention, and prevention in time, before injury.
    The rule of the “Code” as to irreparable injury, &c., means injunction orders, pendente lite. Code, § 219.
    This case is analogous to an application for judgment restraining the use of a trade mark. Show the fact, the violation of right, and damage is matter of presumption.
    II. If the court can see no good reason for Travis sinking the - lamp-post (its unusual construction, and its not being ostensibly connected with his business being unexplained), it is bound to infer that it was intended to injure or annoy the appellant, particularly when such is its necessary or unavoidable effect. (The M. & H. R. R. Co. v. Archer & Ors., 6 Paige, 83; Gatlin v. Valentine, 9 id. 575.)
    IH. It is perfectly immaterial in whom the fee of the sidewalk in question vests or resides, whether in the Corporation, the Messrs. Meeks, or the appellant; as a part of the public highway or street, it is under the control of the Corporation, to be controlled only for the public benefit and public use. "Whether the Corporation is to be looked upon as controlling its own property, or merely exercising a fiduciary right of control over the property of another, the use or appropriation in every instance is or must be the same, i. e. for the benefit of the public. The Corporation is a public body, existing for public purposes. For its rights over the streets of the city, see Drake v. H. R. R. Co., 7 Barb. S. C. R. 508; as illustrative o( this principle, see State of N. Y. v. City of Buffalo, 2 Hill, 434; Hodges v. Same, 2 Den. 110; Adriance v. The Mayor, &c., 1 Barb. S. C. R. 19; Lawrence v. The Mayor, &c., 2 id. 577;
      Brown v. Same, 3 id. 254; Halstead v. Same, 5 id. 218, S. C. in error, 3 Comst. 430; Reynolds v. The Mayor, &c. of Albany, 8 id. 597.
    IY. If the fee of the side-walk in question vests in the appellant, he is entitled to maintain his action on both or one of two grounds, viz.:
    1. Because putting down the lamp-post was a permanent appropriation of his-fee below the surface. The surface is alone subject to the public use.
    2. Because of the annoyance or discomfiture necessarily occasioned to the appellant, or the occupants of his property, by light reflected from a lamp, constructed as the one in question.
    If the lamp-post is offensive to the eye, why is he not entitled to the removal of it %

      Y. The appellant is the owner of the side-walk for the width of twenty-five feet up to the centre of the alley-way. Hie deed from Dr. Hosack conveyed the house and lot Vo. 8 Barclay street,' “ with the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining,” in fee, a fee in every particular of the grant.
    Was .not the vault a tenement?
    For “ tenement” see 2 B. Blacks. Corns. 16,17.
    If the vault was granted in fee, the grantee took the same estate in every necessary incident as in the thing granted.
    For presumptions as affecting grants, see 2 Ph. Ev. (Cow. & Hill’s Ed.) 303, 304, notes; 4 Kent’s Coms. 466-469.
    Again,—The vault merged the fee of the soil. The soil was dedicated to it. It appropriated the entire beneficial use of the soil. The land is capable of little or no beneficial use besides. Although such a thing can exist as one person owning the surface of the soil in fee, and another owning an estate in fee above or below the surface (Humphries v. Brogden, 12 Adol. & El. 738; S. C. 64, E. C. L. R. 738), it is not to be implied— in must be created by express grant. If left to itself, the law will presume against a complication of estates in fee.
    VI. Although the deed from the heirs of David Hosack to the Messrs. Meeks purports to convey the alley-way, bounding in front on Barclay street, that does not carry the fee in the land to the centre of the street; for the fee of that part of the property had already been attached to the vault of Ho. 8 Barclay street, and passed as an incident of the grant of that pro- • perty. This latter grant being antecedent to the former, the heirs of Hosack could make no larger grant than he could, or could convey no right but what he could. The case, therefore, on this branch of it, is to be looked at with reference to what Hosack could have granted to the Meeks, if he and not his heirs had executed the deed to them. He fashioned the premises Hos. 8 and 10 Barclay street, with these vaults extending to the centre of the alley-way, and his heirs are estopped by his acts.
    Can it be said that he intended to reserve any interest in the soil below tiie vault, or between the arch and the flagging of the side-walk? Can it be supposed that he had such a thing in his mind when he first deeded to Townsend ? Or can it be supposed that he did not consider the fee entirely appropriated or dedicated to the vault? If it can be seen that the intention of the party is narrower than the presumed effect of his act, intention may prevail, but is it so here ?
    The deed then from the heirs of Hosack to the Meeks abutted the alley-way upon Barclay street as a space and not as a line. (MacLachlan v. Hammond, 1 Sand. S. C. R. 323.)
    It is not disputed that Barclay street is within that section of the city where the fee of the streets does not vest in the Corporation. (19 Wend. 659; Laws of N. Y., Webst. Ed., Vol. ii., p. 92; Laws of N. Y., Webst. & Skin. Ed., Vol. v., p. 125.)
    This street w&s laid out in 1763, and the old common law rule of “ usque ad medmmvfilum wee” applies. (20 Wend. 96.)
    YH. Even if the fee of the side-walk vests in the Messrs. Meeks, and their permission to Travis to put down the lamppost was sufficient—if it was not put down for a legal, useful purpose—the appellant is entitled to have it removed; a mischievous exercise of a right is not tolerated. (Lasala v. Holbrook, 4 Paige, 169.)
    Even if the lamp-post was connected with Travis’s business (and there is no proof or pretence of such a thing in the case), the keeping of a “ pistol gallery ” is illegal, and the lamp-post, as connected with such a business, must fall also. (Tanner v. Trustees of Albion, 5 Hill, 121.)
    YU!. Under any circumstances the appellant was entitled to a judgment for the damage done to this vault in sinking the lamp-post. The proof was sufficient to show and sustain a claim for some damage.
    The defendant, Travis, knew who it was he employed to sink the post, and could have produced whoever it was to show that no injury was done to the vault. The better proof was with him. Enough was shown to put him on his defence as to the fact. He offered no proof on the point, and so conceded it.
    Justice Campbell does not question the sufficiency of the proof, but excluded it entirely from consideration. In this he erred. All the rights of the parties, as connected with the sinking of the lamp-post, the right to put it there, the damage done to the vault in sinking it, &c., should have been (certainly ought to be) finally and definitively passed upon in the present action.
    IX. The Corporation and their agents were a necessary, certainly a proper party to the action. The complaint, in one aspect of it, savored of the old “ bill of peace,” and was intended to prevent a substantial disappointment of the objects of the action by the Corporation, through its agents giving a permission to some one else to maintain the lamp-post, which might have been the case had Travis sold it, or surrendered the permission given to him. Without the Corporation and its agents, as parties, the action would have reached Travis alone, when the prayer for judgment in the complaint shows a desire to avoid a multiplicity of suits by determining the right of the Corporation, under the circumstances, to give permission to Travis or any one else.
    In other words, the object of the action was to try or test the right of the Corporation to give the permission to Travis to put down a lamp-post for his own private purposes, to the annoyance or injury of the appellant or any one else, and the right of Travis to act upon this permission; and also to recover against Travis the value of the injury done to the appellant’s vault, an item of claim growing out of his act and therefore confined to him.
    X. By their demurrer, the Corporation and their agents admit the whole of the appellant’s case as alleged in his complaint, the loss of rent, the injury in other respects to the appellant’s property; that they have been applied to to remove the lamp-post; that it is unnecessary, an obstruction in the public street, &c., &c. The demurrer as to them should have been overruled with costs, or final judgment pronounced against them. ¡No one will pretend, no matter what control they are entitled to over the public streets, that they have a right to appropriate any part of them permanently to one individual at the expense of another, when they know too, that not only the individual complaining, but the public generally, are or must be interfered with in their enjoyment of the streets. Yet this is what these defendants have virtually brought their case to by their demurrer.
    The court may, in its discretion, still allow them to plead over, on terms. (Code, § 172.)
    XI. Any recovery against the defendant, Travis, entitles the appellant to costs.

      A. J. Willard, for respondents,
    contended that the judgment ought to be affirmed, and insisted that,
    I. The locus in quo was not the soil and freehold of the plaintiff, so as to enable him to maintain an action for trespass upon it.
    1. The lamp-post was erected in Barclay street, in front of premises belonging to the defendant’s, Travis, lessor.
    2. The fee of the land covered by the streets in the lower portion of the city of ¡New York, of which the present street is one, vests in the owner of the adjoining property, subject to the easement belonging to the public.
    3. The plaintiff therefore, never having been seized of the locus in quo, cannot maintain an action of trespass.
    ¡H. The plaintiff has not been disturbed in any easement or right of enjoyment connected with the premises owned by him.
    1. The erection of lamp-posts and lamps is incident to the easement enjoyed by the public in the highway; and if any one has a right to complain, it is the public alone. (Drake v. Hudson River Railroad Company.)

    2. A lamp-post, erected or permitted to be erected by the public authority, is a lawful use of the highway,, and -does not create a nuisance, either public or private.

      3. A lamp is not per se a nuisance, whether lawfully or unlawfully erected in the highway, for which any private citizen can complain. The law cannot take notice of those considerations that render a less degree of conspicuousness desirable for the plaintiff.
    4. There is no evidence in the case that the lamp was a nuisance, or in any respect injurious to the plaintiff.
    5. The plaintiff’s occupation of the vault was not an easement, but a mere tenancy at will, determinable at the will of the owner of the fee; and, consequently, he cannot maintain an action for an act done under authority from the owner in fee.
    TIT. The plaintiff is not entitled to recover damages for any injury to the vault.
    1. The complaint does not lay the foundation of any such claim.
    ■ 2. The only evidence tending to show an injury to the vault, is contained in the testimony of Gilbert Giles, who saw nothing but the appearance of a brick having been replaced for some cause in the inside of the vault, long after the lamp-post had been erected, and who did not, and could not know for what reason it had been replaced.
    3. The court having found upon this evidence that there had been no injury done to the vault, that finding cannot be disturbed. (Osborn v. Marquand, 1 Sand. S. C. R. 457.)
    TV. The plaintiff is not entitled to an injunction that would interfere with the control over the public streets, that the Corporation are invested with by law.
   By the Court. Bosworth, J.

The lot and premises, ISTo. 8 Barclay street, as well as the lot and premises, Fío. 10 Barclay street, are conveyed by metes and bounds. Each is twenty feet wide in front, on Barclay street, and no more. Each lot extends southwardly of the same width, the length of the strip of land or alley-way lying between these two lots. The alleyway is ten feet wide. The fee of the alley-way, and of the premises in'the rear, is not in the plaintiff, but in Meeks. The most that the owners of the lots 8 and 10 Barclay street can claim, under their deeds, is the right to an undisturbed use of the whole vault in front of their buildings, and to have the second and upper stories, of the present buildings, and of any new buildings to be hereafter erected, overhang the alley-way; and that the alley-way shall be used as such, or for a purpose, which will not interfere more than such a use of it would, with the enjoyment of their premises.

Travis, by permission of the owner of the alley-way, and of the Corporation of the city of Hew York, has erected a lamp-post, surmounted with a lamp, within the limits of the alley-way, and near the curbstone of the street.

The object of this action is, to obtain a judgment of the court, that this lamp-post be removed; that Travis be perpetually enjoined from placing the same or any other within the limits of this alley-way;.that the other defendants be “perpetually enjoined” from placing any lamp-post within these limits, designed as and for a private lamp-post, without the assent of the owner of lot Ho. 8, Barclay street, and also from directing or assenting that the lamp-post in question be kept there without the assent of the plaintiff, or other owner of the premises.

All other relief prayed is subordinate to and dependent upon the right of the court to grant this.

Unless the plaintiff has a strict legal right, which is invaded by the erection and continuance of this lamp-post, this action cannot be sustained. Ho special damage is shown to have resulted from it. It is not proved to be in fact an annoyance, and of course is not proved to have been erected with intent to annoy him.

The complaint alleges that it is a serious annoyance to the present occupants, and to all in-goers and out-goers, and a material injury to the value of the plaintiff’s property, and as he believes an impediment to the leasing it to advantage, and he believes it was intended by Travis to vex and harass the plaintiff and his tenants.

This is expressly denied by the answer, and no proof was offered to establish the truth of the allegations.

Ho facts are alleged, from which, if proved or admitted, the court can see, that it is or might be injurious, except the averment that it is “ evidently so constructed as to reflect the light with full force upon the street door or entrance to the upper part of the plaintiff’s house, mating it unduly and unpleasantly conspicuous, and interfering with the comfort of the occupants and others passing in and out.”

The answer denies that it was intended or so constructed as to effect this result, or that the alleged conspicuousness of plaintiff’s house, or any interference with the comfort of the occupants and others passing in and out, result from it.

There is no proof of the truth of these particular allegations, unless the court can say judicially, that a lamp of the form, size, construction, and with the number of lights belonging to this, prwna facie must work such consequences, and be presumed to have been constructed with such an intent.

The court, as I apprehend, will find it difficult without proof to say how the owner of a house can be injured, by having all the light thrown upon it, at any and all hours of the night, which can be furnished by a lamp of six burners. The mere fact of a residence or place of business being conspicuous cannot prima facie be deemed injurious. Hor can the fact, that it is very light in front of it after dark, be deemed prejudicial to its business, if lawful, as that of the plaintiff and his tenants must be presumed to be, as nothing to the contrary is shown by the evidence. There was no such evidence as would justify a jury in finding, that the displacement of the brick in the vault was occasioned by the erection of the lamp-post. The plaintiff did not call a witness to prove its condition at or prior to the time of erecting the lamp-post.

It is alleged to have been erected in October, 1850. The witness who proved that under the lamp-post was a hole about the size of a brick, swears to what he saw when he first examined the vault, which was about a year after the lamppost was erected.

How and when this hole was made he does not attempt to state.

It would seem to be clear that Travis, having the consent of the owner of the alley-way and the permission of the Corporation of the city of Hew York to erect the lamp-post, had a strict legal right to erect it.

The court that tried the cause, found as matter of fact that it was not a nuisance. There is no evidence justifying the inference that it was an annoyance to the occupants of No. 8 Barclay street, or any injury to the premises.' The complaint was therefore properly dismissed as to Travis.

The city Corporation and its officers are made parties to obtain a judgment as against them, restraining them from hereafter permitting any lamp-post to be sunk within the limits ■ of the alley-way, and from directing or consenting to the existing one being kept where it is, without the assent of the plaintiff, or other owner of the premises, No. 8 Barclay street.

The court will not undertake to regulate in advance, the future exercise of discretion, by the body or officers to whom the regulation and superintendence of the lighting of the streets, are confided by law.

The complaint alleges that the lamp “ is not required in the street,” but does not aver that it does not tend in any respect to promote the public convenience. It does not allege that the commissioner of streets and lamps,” or “ the superintendent of lamps and gas,” did not deem it useful to the public, or give permission to erect it, with a view to any such consideration.

Admitting .all the averments in the complaint, which can properly be regarded as allegations of fact, to be true, it would not authorize the court to interfere with the action of these municipal officers, in this particular instance, in permitting the erection of this lamp-post.

They had a discretion to exercise in the matter, and although the court may have the power to review and control the exercise of this discretion in cases that may be supposed, there is not enough stated in the complaint to justify us in interfering in this instance.

We are of opinion that the judgment appealed from should be affirmed with costs.