text:
    THE PEOPLE, ex rel. GUSTAVE FERRO v. WILLIAM S. ANDREWS, et al., as Commissioners composing the Board of Excise, &c.

      Board of Excise—Review by mandamus of refusal to grant license—Practice upon—Rule applicable—Consolidation Act, §§ 1998, 2010.—Laws 1886, Chap. 496.
    It was the intention of the legislature in Laws 1886, Chap. 496, to allow a person whose application for a license has been refused, to review the action of the commissioners composing the Board of Excise by the writ of mandamus therein provided.
    The practice prescribed by article 4, title 2, chapter 16 of the Code of Civil Procedure, applies to proceedings on such writ, and the relator in such case should proceed in the first instance by alternative writ of mandamus.
    Where the relator does not deny the facts set up in the affidavit on the return, but proceeds to argue the application thereon, it is equivalent in effect to a demurrer.
    Where it appears that the applicant maintains at the place proposed for sale of liquors under the license applied for, a place of exhibition or
    • performance mentioned in § 1998, Consolidation Act, the license should not, under the provisions of § 2010, Consolidation Act, and Chapter 496, Laws 1886, be granted.
    Upon a review of the proceedings of the Board of Excise by mandamus as above, such board being a subordinate tribunal, if it appears that it had jurisdiction, that there was evidence legitimately tending to support its decision, and that no rule of law affecting the rights of the relator has been violated, the adjudication will be held final.
    Upon a review of the facts in this case, and the authorities, held, that there was evidence tending to show that the relator maintained at the place referred to, a place of performance included in § 1998 Consolidation Act.
    At Special Term.—Before Ingraham, J.

      Decided November 24, 1886.
    Motion under Laws of 1886, chapter 496, to compel respondents to grant relator a license.

      The facts appear in the opinion.

      Max Altmayer, for relator.

      Charles W. Dayton, for respondents.
   Ingraham, J.

The statute under which this application is made provides that where an application to sell strong and spirituous liquors, ale, wine or beer, to be dratik on the premises, shall be denied and license refused, it shall and may be lawful for such person to apply to any court of record, or to a judge thereof, for a writ of mandamus to review the action of such Excise Commissioners or Board of Excise, and such board in its return to said writ shall include all evidence and all papers on which the action was based. If the court or judge by whom the writ of mandamus shall be issued, in pursuance of the provisions of this Act, shall determine upon the hearing of said mandamus, that the application made the basis for said writ of review has been arbitrarily rejected, or been rejected without good or valid reasons therefor, the said court or judge may by an order direct the Excise Commissioners or Board of Excise to grant said license.

The process to be issued in the first instance is called by the Act a writ of mandamus to review.” This provision would appear to extend the office of a writ of mandamus, as heretofore, when it was sought to review the determination of a public body or officer the writ of certiorari was the proper remedy; but it was evidently the intention of the legislature to allow a person whose application for a license had been refused, to review the action of the commissioners, and it -would appear that the proper practice under this Act would be to issue an alternative writ of mandamus in the first instance, to which the Commissioners of Excise could make the return provided by the act, and on that return the right to the relief demanded could be determined.

The practice prescribed by article 4 of title 2 of chap. 16, §§ 2067 to 2090, of the Code of Civil Procedure, would apply to proceedings on such writ.

As, however, the parties to this proceeding have treated the order to show cause as an alternative writ, and the Board of Excise having returned in answer to the order to show cause, the evidence and papers on which their action was based, I will determine the question as if such an alternative writ had been granted, and the return of the respondents made thereto.

It appears by the return and is not denied by the relator, that certain persons objected to the respondents granting a license to the relator,' and that upon the application and such objections, the respondents had a public hearing, at which the objectors and the relator appeared by counsel, and the evidence of the parties was taken, and after such hearing the respondents refused the license on the ground that from the evidence, it appeared that public concerts consisting of music upon a piano and violin had been given upon a stage or platform upon said premises, and that the granting of such license would have been a violation of their duty.

The relator not having denied the facts set up in the affidavit, but having proceeded to argue the application thereon, it is equivalent to an admission of the truth of the facts alleged in the affidavit, but a denial of their sufficiency in law to prevent the issuing of the writ (People v. Supervisors, &c., 73 N. Y. 175).

The return of the respondents being taken as true, does it appear that the license was arbitrarily rejected, or rejected without good or valid reasons therefor?

By section 1, chapter 340, Laws of 1883, as amended by chapter 496, Laws of 1886, p. 727, it is provided that the Board of Commissioners of Excise “ shall, if all other requirements of law have been complied with, have power to g -ant licenses to sell strong or spirituous liquors,.....provided that no such license shall be granted unless the said commissioners shall be satisfied upon examination that the applicant therefor is a person of good moral character, and the license may properly be granted for such sale in the place proposed.”

By section 2010 of the Consolidation Act, (chapter 410, Laws 1882, p. 485), it is provided that “ it shall not be lawful to sell or furnish any wine, beer or strong or spirituous liquors to any person in the auditorium or lobbies of any place of exhibition or performance mentioned in section 1998, or in any apartment connected therewith.”

Section 1998 of the Act has been construed to include “all classes of public exhibitions such as are usually conducted upon a stage for the observation or amusement of the public ” (Mayor v. Eden Musee Co. 102 N. Y. 596), and Mr. Justice Van Brunt in the case of People ex rel. Hanlon v. Board of Excise Commissioners, held that every kind of entertainment of a public character where music is employed as the whole or part of the means of amusement, comes within the statute as being an exhibition of minstrelsy.

It is clear that if the relator maintained at the place proposed for sale of liquors under the license applied for, a place of exhibition or performance mentioned in section 1998 of the Consolidation Act, a license should not be granted for such sale in such place, and it was the duty of the respondents to refuse a license therefor ; and the respondents having found as a fact that the relator does, at the place named in his application for a license, maintain a place of exhibition or performance mentioned in said section, if from the evidence taken before the respondents it appears that there was evidence to sustain such finding, the application cannot be said to have been arbitrarily or without good or valid reasons rejected.

It is settled that on the review of the proceeding of a subordinate tribunal the court will only examine the evidence for the purpose of seeing whether such tribunal kept within its jurisdiction, to ascertain whether there was any legal proof of facts authorizing the adjudication, and whether any rule of law affecting the right of the relator has been violated. If the tribunal had jurisdiction, there was evidence legitimately tending to support its decision, and no rule of law was violated, the adjudication was final (People v. Board of Fire Commissioners, 82 N. Y. 361; People v. Board of Police Commissioners, 93 Ib. 101).

It is clear that the respondents were a subordinate tribunal within the meaning of this rule. By the statute the respondents were to be satisfied “ upon examination that the applicant is a person of good moral character and that the license may properly be granted for such sale in the place proposed.”

The respondents cannot grant the license unless they are so satisfied, and if, from the evidence and the papers upon which their action is based, it appears they rejected the application for the license because the sale of liquor would be unlawful at the place proposed, and there is evidence of facts legitimately tending to support its decision, the court in reviewing their decision, cannot interfere.

I have examined the testimony taken before respondents, and think there was sufficient evidence to sustain their determination. It appears that there was a performance on a platform at relator’s place every night, Sundays included, consisting of music played upon a piano and violin; that relator told a witness some of the performers were hired by him; and that he said to another witness “ that he would like to stop the music, as it would save him the expenses thereof, but that he found that as soon as he stopped his music people left his saloon instantly, and he could not make a living if he discarded his music. And there was a circular distributed by the relator which stated that his guests would be entertained by “the most agreeable music, discoursed by a select orchestra,” and evening concerts from eight to twelve.”

With this evidence before the respondents, it cannot be said that their finding was unsupported by the evidence.

Motion must therefore be denied.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    FIFTH AVENUE BANK v. JAMES B. COLGATE, Impleaded.

      Limited partnership—Formation and renewals of—As to liability of special, as general, partner—One partner signing and acknowledging certificate before the cash is actually paid, effect of—Certificate and affidavit for reneival, requisite of, as to the statements respecting the capital of the special partner—Evidence as to the falsity of such statements admissible, and if false the special is liable as general partner.

    Where it appeared that one of the partners to a proposed special partnership signed the proper certificate and properly acknowledged it at Albany, that two days thereafter the special capital was paid in at the City of New York when all the other partners signed the certificate and acknowledged it (the one who signed at Albany not being present), and was then delivered by some one acting for all to some one authorized by all to place it on record,

      Held, that the special partner did not thereby become a general partner, such signing and acknowledgment being a compliance with the Statute.

      Renewals of Special Partnership : The certificate must, if the capital is to consist of that originally contributed, show how much of that capital belonging to the special partner remained in the old firm to be acted upon by the renewed one. It is however sufficient to name the amount of the capital as it appeared and as calculated in the usual business way, and then to state that such amount was subject to the liquidation of tlie assets; and the affidavit must verify this statement and be testi-
    Note.—The briefs of the respective counsel were elaborate and full, covering the various points discussed in the opinion. They are too lengthy to be rep irted in full, and cannot with justice to counsel be condensed. They can be found in the Library of the Court. mony to the contribution of such special capital. Such statement in the certificate and affidavit must be true. These are pre-requisites to the renewal and continuance of a special partnership. If any one of them be wanting and the partnership business continues after the expiration of the term originally limited the special partner will be liable as a general partner. It follows that the exclusion of evidence offered to show the falsity of such statement, and having a tendency in that direction, is error.
    Before Sedgwick, Ch. J., Feeedman and Van Voest, JJ.

      Decided February 14, 1887.
    Exceptions by plaintiff ordered to be heard in the first instance at General Term, the court having directed the complaint to be dismissed.
    The action was upon promissory notes, made by a firm, in which it was claimed that defendant was a general partner. Papers had been filed to make a limited partnership, and to renew it.
    There were two renewals.
    The certificate signed, acknowledged and filed on both renewals, set forth that the limited partnership describing it was thereby renewed and continued. They also set forth the name under which the renewed partnership was to be continued, the general nature of the business intended to be transacted, the names and places of residence of all the general and special partners interested in the renewed partnership and business, specifying which were general and which ivere special partners. They then contained the following statement:

      “ That the amount of capital which the said James B. Colgate, the said special partner, heretofore contributed to the common stock of said partnership, is the sum of one hundred thousand dollars ($100,000) in cash, and that the said capital of the said special partner remains in said limited partnership, wholly unimpaired, and that the said amount, namely, one hundred thousand dollars ($100,000), has been contributed by the said special partner to the common stock of the renewed partnership.”

      They then set, forth the period at which the renewal partnership was to commence and at which it was to terminate. The affidavit made on the first renewal by one of the general partners was as follows:
    “ That he is one of the general partners named in the annexed certificate of renewal of the limited partnership of Humphrey & Co., and that the sum of one hundred thousand dollars ($100,000), specified in the said certificate to have been contributed by James B. Colgate, the special partner therein named, as capital to the common stock of the said partnership, has been actually and in good faith paid in cash, and that the said capital of the said special partner remains in the said limited partnership, wholly unimpaired, and that the said amount, namely, one hundred thousand dollars ($100,000), has been contributed by the said special partner to the common stock of the renewed partnership.”
    The affidavit made on the second renewal was in substance the same as that on the first.
    The other material facts appear in the opinion.
    The court below rejected evidence offered by the plaintiff to show that the statements in the certificates and affidavits of renewal as to the contribution of capital by the special partner were false, in that it was not the fact that the capital originally contributed by him then remained in the limited partnership wholly unimpaired. To which rejection plaintiff excepted. The complaint was dismissed, the court holding that upon the evidence the defendant Colgate was a special partner. To this plaintiff excepted.

      Stern & Meyers, Attorneys, and Nathaniel Myers, of counsel for plaintiff.

      Butler, Stillman & Hubbard, Attorneys, and William Allen Butler, of counsel for defendants.
   By the Court.—Sedgwick, J.

The learned counsel for plaintiff takes the position that the partnership was not limited under the statute, because there was not a compliance with the terms of the 4th section (2 R. S., 764). That section requires that the persons desirous of forming such partnership shall make and severally sign a certificate, which shall contain among other things : ‘ 4th. The amount of capital which each special partner shall have contributed to the common stock.’ ” Section 5 requires that “ the certificate shall be acknowledged by the several persons signing the same,” “ and such acknowledgment shall be made and certified in the same manner as the acknowledgment of conveyances of land.”

In the present case the defendant paid in the amount to be contributed by him on March 11, 1874. The certificate required by the statute was then, it is to be presumed from the evidence, immediately handed in or delivered by some one, acting for all the partners, to some one authorized by all to place the same upon record, in accordance with the statute.

The certificate was dated March 9, 1874, and was signed on that day by T. F. Humphrey, one of the partners, at Albany, and on the same day he there acknowledged its execution by him before a notary, who made a proper certificate of that acknowledgment on the same day. T. F. Humphrey was not present in New York when the partnership was formed, and the special capital paid in; or when the certificate after all had signed it and acknowledged its execution, was delivered on March 11, for record. The inference is that T. F. Humphrey, after he made the acknowledgment, gave the paper to some person on March 9, to be handed in or delivered up after the actual payment of the special capital.

The objection made to this is that the certificate of the partners intended by the 4th section is one to be made after the special capital is paid in; that in the present case, the certificate being made on March 9, was made before the capital was paid, and that for this reason the direction of the statute had not been observed.

If it were possible to confine the attention to the date of March 9, and to refrain from giving significance to what was done with the certificate on March 11, then certainly it would be necessary to say that the document as then made was not of the kind described by the statute. But, as matter of fact, the paper signed on March 9 in the form of a certificate was not, on that day, a certificate. A form of certificate not parted with by the person certifying, does not become his certificate until he parts with, or utters, it, to be used for the object for which the law calls for it. Before that, it is within his control, and may never be parted with. Before it is parted with, another paper may be prepared, if events require, and be made the certificate. It is argued that T. F. Humphrey did part and finally part, with the paper when he remained in Albany and sent the so-called certificate to be handed in, so far as he was concerned, as his certificate, and he made no other certificate. The facts do not sustain this position. It is true that he must have handed the paper to some other person. That person was his agent, and what the agent did he did, and when that agent parted with the paper on the 11th of March, at the time the special capital was paid in, he himself was the actor in a legal sense and then himself made the certificate, and then it was of the kind that the statute meant.

It maybe assumed that T. F. Humphrey did not know personally, at the time his agent parted with the certificate, that the special capital had been paid in as an actual occurrence. A requirement of a certificate does not imply that the party maldng it shall have an actual knowledge of the fact certified. He is bound only to the existence of that fact.

This result seems to be correct, if the effect of acknowledging the execution does not change it. The word acknowledgment suggests to the mind in an obscure way an assertion of the truth of the statement of the paper. The statute does not countenance such a suggestion. It means a proceeding by which other persons may prove that the partners signed the certificate. The notary certifies, as to an acknowledgment of the signing, without reference to the truth of what is contained in the paper. The object of an acknowledgment is wholly met if that acknowledgment be certified before the capital is paid in, and as perfectly as after. The paper gives in itself the means of showing that the .partners did sign.

The objection that has been examined cannot be sustained.

There was an attempt on the trial to show, that the special partner did not contribute $100,000 as his special capital in good faith. The decision of the court below of this matter upon the testimony was correct.

A more difficult matter remains to be examined. It is necessary to apply to the case a construction of section 11 (2 R. S., 765). That section is: “Every renewal or continuance of such partnership beyond the time originally fixed for its duration shall be certified, acknowledged and recorded, and an affidavit of a general partner be made and filed and notice be given in the manner herein required for its original formation, and every such partnership which shall be otherwise renewed or continued shall be deemed a general partnership.”

This is not a penal statute, to be construed strictly. Its intention is to be found under the other rules of statutory construction. A limited partnership and its immunities for the special partner end with the term fixed originally, unless the 11th section is observed. This is a necessary implication from the sections that provide for an original formation. They require that the partners shall fix a term for the limited partnership. That means that beyond that term the limited partnership shall not continue its business. The 11th section almost expressly declares that the duration of the original partnership shall be for the term first fixed, unless a renewal is competently effected by complying with the provisions of the section. A continuance of the business after the term first fixed would make the special partner a general partner, unless he secures an exemption from general liability, under section 11. And the facts are to be examined to ascertain if they show that he has secured that exemption.

A fundamental consideration relates to the object of the statute, or the purpose for which it was made. It would seem clear that it was meant that the manner of renewing the limited partnership should give to third persons the same kind of knowledge or notice, that it had been meant they should have as to the original partnership. There was the same kind of wrongs to be prevented, and in each case third persons needed the same kind of safeguards. A renewal or continuance of the business would involve the same kind of transactions and the same kind of relation to others. There is reason to think that like provisions of law would be made for each case, and no reason to think that unlike provisions would be made. Any other supposition would attribute to the law-makers incoherence and not harmony of intention. Of course, the statute expresses the means of accomplishing the design, and no other means can be exacted.

The section is elliptical in its sentences to an unusual extent. The renewal is to be certified, acknowledged and recorded, in the manner required for the original formation. But an original partnership is not to be certified, nor is it to be acknowledged, nor to be recorded, in any manner. A certificate is to be made which is to contain declarations that certain things have been done. It is not to declare that the limited partnership is made. This certificate and not the partnership is to be acknowledged, and it and not the partnership is to be recorded. The limited partnership comes into legal existence after the documents have been made, filed and recorded. It is necessary then to say that in the case of an intended renewal there are to be a certificate, to be acknowledged and recorded, and an affidavit and a notice, as there are to be in an original formation.

This is not controverted. The controversy relates to the intention of the statute as to the contents of these documents.

It may be said preliminarily, if the statute meant that the substance of the different documents, taken together, should be merely an expression of a purpose to renew for a time, that the same substance could be given perfectly and completely in a single declaration to be acknowledged and filed with notice to be given. An affidavit as well as a certificate is required, and the presumption is that each was to have a bearing of its own, peculiar to itself, upon the legal result of a renewal being made.

If the design of section 11 is what has been already asserted, then the contents of the papers are to have the relations to the renewal, that like papers bear to an original formation. The certificate must state something as to the capital of the special partner, which will be carried over to the renewed firm. In the argument it was suggested that this special capital to be described in the new certificate, was such as had theretofore in the beginning been contributed. This, however, had been once certified, and the 11th section does not suppose that possibly a false certificate had been originally filed, leaving the partners all, from the beginning, generally liable. An affidavit is testimony, and in this instance to the contribution of special capital. There is the alternative of the affidavit for a renewal referring to the special capital of the first formation, or of the renewal. The former is not intended, for such an affidavit had been made already, and would have doubtful utility in case of the renewal. The latter is therefore intended, and serves a purpose, specifically appropriate to a renewal.

The phrase, “ in the manner herein required for its original formation” is the controlling indication of what the statute requires to be the contents of the papers that have been named. They are to be made in the same manner as like papers were to be made in the original formation. And here the rule is to be applied that each part of the section is to be construed in reference to the subject matter of the whole section. The papers in their contents are to be fitted to a renewal.

What does “manner” mean? If it means “form” only, it must be said as to a certificate, as distinguished from the act of signing it, that the form in the original requirement was not particularized, but was a form of any shape, that would contain the assertion of the existence of certain facts and intentions. Every form of speech or of writing has inseparably connected with it its significance. The form of the certificate is to be such as will be sufficient to declare hi reference to a renewal, those things which are to be declared in reference to an original formation. This is shown in the case of the required affidavit. To observe the form of the original affidavit, it would be necessary only to use any form that would be sufficient as testimony to the contribution of capital. If an affidavit contained no allusion to that capital, it would not have the form required. The affidavit called for by the 11th section, is to be testimony as to the capital the renewed partnership will have.

But, the word “ manner ” has a larger meaning than “ form ” has. It includes “ mode, method or way,” and therefore includes the idea that the documents shall have the same function that was intended for an original formation.

Of course the documents are to be shaped to the contingencies of a renewal. The law deemed it important that third persons should know how much capital of the special partner, was at the command of the partnership when it was first formed, it is equally important that persons dealing with the renewed partnership should know what amount of capital was to be at its command during its term.

It is not meant that the special partner should take his capital out of the old partnership and place it in the new. The certificate and affidavit are not to declare that any capital has been contributed afresh. They should state what capital belonging to the special partner remained in the old firm to be traded upon by the renewed firm. It is not necessary to suppose that it is generally the case, that the amount of special capital could be named with certainty as not liable to diminution, from the assets carried over to the new firm not yielding in the course of the business as much as at the end of the old partnership it was estimated they would yield. It would be possible to name the amount of the capital as it appeared, and as calculated in the usual business way, and to state that the amount was subject to the liquidation of the assets. If, however, it were impossible to make a statement on this subject that might always be justified, that would be a case where no renewal could be made properly under the statute. In that event no purpose of the law would be frustrated. It may be taken for granted that the statute favors caution and the avoidance of doubtful questions.

I take it, that practically the doubt as to the construction of the section comes from the difficulty of naming the amount of special capital there may be really in the business at the end of the first term. The difficulty will not exist in all cases. The difficulty may not amount to an impossibility. It is not doubtful that the statute may have some scope for its operation.

Finally, does the statute mean that, as part of the manner of renewal, the documents shall be true ? If it do not, then the implication is that the statute may be complied with by preserving forms which have in their contents, untruths and declarations that must mislead. It seems to be clear that a part of the manner of forming an original partnership was by filing a true certificate and true affidavit. This is a deduction from all the sections that relate to an original formation. If some considered by themselves did not show this, yet if others did, it is sufficient. The 11th section calls for true certificates and affidavits.

The result is, that if the certificate or affidavit be false, the partnership is otherwise renewed or continued than in the manner required for an original formation.

To this it is objected that the words of the section mean as to the certificate that the fact of renewal and continuance are the only things to be certified. The endeavor has been to show in this opinion that the manner of certifying in the case of a renewal, being the same as of certifying in the case of an original formation, the same kind of certificate is intended by the 11th section as modified by the peculiarities of a renewal; and that a renewal is a legal consequence of filing the prescribed papers, and is not made by certifying that it is made. The same considerations are to be applied to the required affidavit.

There appears to be no doubt, that the time through which the business is to be continued should be stated. Yet the 11th section does not specifically call for this. It is only impliedly required, because the manner required for the formation called for a certificate as to the time.

It is further objected that “for a false statement in the renewal certificate or affidavit required by section 11, there is no penalty prescribed.” It has already beén said that the statute is not penal in any view. The last sentence of the 11th section provides what would have been the law if that provision had not been made. If a true certificate be required for a renewal, and be not made and filed, and the business is continued past the term of the legal existence of the limited partnership, then the law ascertains the liabilities of the parties, by ascertaining whether the facts show a liability of a general partnership.

It is argued because in the case of an original formation, an action had been given for false statements by a separate section (sec. 8), from the sections which prescribed the method of formation, that section 11 gave no action, inasmuch as section 8 did not refer to renewals, and no other section gave an action for false statement in the instance of a renewal. The formal answer to this is that section 11 did not profess to give any action. It only described the sole, competent way of securing exemption from the legal liability that would exist, if its directions were not followed. In case of an original formation it might be argued without absurdity, that "the sections calling for the making and filing of the certificate, do not give an action for their falsity, for if they were meant to give this, section 8 would have been unnecessary. There is not a like ground for saying the same thing of section 11, for no section like section 8 refers to a renewal. This omission would be an argument that the security against false statements would be found in the effect that section 11 has in giving immunity only if its provisions are observed.

In reality, under the statute as to an original formation there may be an action against the special partner with the other partners as all general partners, without averring particular false statements; the action need not be on that section 8. Sharp v. Hutchinson, 100 N. Y. 533 was such an action. On the trial, the plaintiff offered the papers filed to form the limited partnership, and proposed to falsify them. They were excluded. The opinion in the court of appeals says: “ The view of the trial judge was, that the complaint instead of treating Hutchinson as a mere general partner, should have been based upon the statute, alleging the special defects in the formation of the limited partnership. In this there was error. H the proof had been received, it would have shown, that Hutchinson never in fact became a special partner, but that he was from the beginning a general partner, and hable as such (2 R. S., ch. 4, tit. 1, § 8). The cause of action was not based upon the statute, but upon his common law hability as a general partner, and hence it was proper, in setting forth in the complaint the facts constituting plaintiff’s cause of action, to charge him as a general partner, and then upon the trial to show that he was such by any competent proof.”

It is further urged that because during the term of the original partnership, creditors had no means to investigate the affairs of the firm, to learn whether or riot the special capital had been impaired, it cannot be inferred that the 11th section intended that to make a renewal it should be necessary to disclose in the papers filed, the amount of special capital carried over from the first firm to the renewed partnership. The inability of creditors alluded to was contemplated to endure for the first fixed term, when at the beginning of that term the creditors were informed upon what capital the firm was to trade. If a like inability is meant to occur during the term of the renewal, it should have the basis of like information as to capital when the firm is renewed.

Another argument rests upon what is a fact, that the business of a renewal is in continuation without break of the former business, making altogether one business; and claims that the statute meant that if in the beginning the statutory form had béen followed, no subsequent conduct or misconduct, except as particularized in the statute, would make the special partner hable as a general partner.

It seems to me sufficient to say to this, that the controversy relates to the right there is to protract the original business, and to continue it without break; the immunity of the special partner continuing. By the statute the enjoyment of such a right is conditioned on compliance with the statute; and the question is, what has already been discussed, has the statute been observed ? In determining the construction of the section, it should be appreciated, that the unbroken continuance of the business was contemplated; that is one thing to be sub-served, in favor of those desiring to renew, but not at the expense of other requirements in favor of third persons, and especially when all the requirements harmonize.

The law of this case is found in the particular forms of words which have been chosen to constitute the statute. The earlier statute of 1822, and the provisions of the French law, may require less to be declared for a renewal than our statute requires. I am convinced that the 11th section has a meaning of its own, and that this meaning is controlling.

I am therefore of opinion that the plaintiff should have been allowed to offer testimony to show that the statements contained in the certificates and affidavits of renewals were false in the sense that it was not the fact “ that the said capital of the said special partner remains in said limited partnership wholly unimpaired.” My understanding of the meaning of the next assertion, “that the said amount, namely, $100,000,has been contributed by the said special partner to the common stock of the renewed partnership,” is, not that a new $100,000 had been contributed, but that the unimpaired capital of the special partner remaining in the old firm, was contributed to the renewed firm.

Judge Van Yoest, before leaving the bench, gave his concurrence in the views that have been expressed.

Plaintiff’s exception sustained, new trial ordered with costs to abide event.

Feeedman, J., concurred.


author: By the Court: Sedgwick,Ch. J.

text:
    AUGUSTIN DALY, Respondent v. JOHN STETSON, Appellant.

      Complaint, insufficiency of when question as to cannot be raised at trial. Averments as to conditions precedent, sufficiency of. Things not in existence, no legal title can pass to by assignment or grant before they come into existence, but an equitable title to them when completed will pass, which may be relinquished or waived. Acts constituting a relinquishment or waiver. Agreements not inconsistent. Construction of agreements as constituting agency only. Power to collect not assignable.

    Where the answer makes no issue of fact with the complaint, but merely sets up counterclaims, the defendant is not entitled to object to the sufficiency of the complaint.
    Plaintiff sold to defendant the exclusive right to give performances of certain plays for thirty consecutive weeks, commencing about Monday, October 22d, 1883, one performance each night to be given during said period; the defendant agreed to pay plaintiff two hundred dollars each week for thirty consecutive weeks, commencing the first Saturday after the performances began.

      ■Held, that the only condition precedent to the weekly payments becoming • due was the giving of one performance; and that it was sufficient for the complaint to state that payments had been begun.
    One L’Arrange and one Neuendorff entered into a contract whereby L’Arrange assigned to Neuendorff the exclusive right of performance at the Germania Theatre of “all plays, dramas and comedies composed or arranged by him, and which from to-day forth will be written by Mr. L’Arrange, and furthermore exclusively all property rights on all these plays for the United States with the exclusive right to give to other stages permission to perform such plays, fix the royalties and collect the same, and authorized Mr. Neuendorff to act as the sole proprietor of the same ”; and whereby it was agreed that Mr. Neuendorff should pay to L’Arrange for every performance of said plays at the Germania Theatre a royalty of five per cent, of the gross receipts, and that all other moneys which Neuendorff should receive by disposing of his property rights to said plays to other theatres of the United States, should be divided equally between Mr. Neuendorff and Mr. L’Arrange after mak- . ing certain deductions; the account and payment of all moneys due to Mr. L’Arrange to be made every year after the close of the season. After making this contract Neuendorf? entered into a contract with Daly, the defendant, whereby after reciting therein that he was the agent of L’Arrange, and other dramatic authors residing on the continent, he in consideration of one dollar paid to him individually and of one dollar paid to him as such agent agreed for himself, and as such agent, to deliver to said Daly a copy of every unpublished or unwritten play by said persons, and to give to him the exclusive right of performance or permitting or causing, to be performed on the stage the English version thereof throughout the United States, and Daly agreed to make to Neuendorf? as such agent as aforesaid certain payments for such delivery, and exclusive right in a certain specified manner. Thereafter said L’Arrange composed and wrote a play named in English “ Dollars and Sense.” He instructed Neuendorf? not to deliver this play to Daly, but to give it to Wallack, a manager of a theatre, for examination and approval or rejection. Neuendorf? so informed Daly. Daly then began negotiations with an agent of L’Arrange for a right in the play. Pending the negotiations between Daly and the agent of L’Arrange, Wallack rejected the play, and returned his copy to Neuendorf? who handed it to Daly. Thereafter the negotiations between Daly and the agent of L’Arrange ripened into an agreement by which L’Arrange gave Daly the right to perform the play, he making to L’Arrange certain payments of royalties therefor. Daly produced thp play with large gross receipts, and jjaid to L’Arrange the royalties thereon agreed on between them. Before the representations of the play had ended, and before Daly had paid the royalties on receipts from later performances, Daly had information of the agreement between Neuendorf? and L’Arrange. Neuendorf? claiming to have a demand against Daly for royalties on said play under the agreement between them, assigned such claim and by various mesne assignments it was assigned to defendant, who sought to counterclaim'it in this action.

      Held, First, that the play not being then in existence the execution of the agreement between Neuendorf? and L Arrange could not pass any title to or interest in it before it came into existence; that that agreement was as to plays not then in existence executory, and gave only an equitable title to them when completed; that the equitable vendee might refuse to take title, and if he did so he could not afterwards set up a title; that the acts of Neuendorf? negatived the idea that he claimed or took title under the executory agreement; that he never became the owner, and that Daly was not bound to look upon him as the owner. Second, that the amount to be divided between Neuendorf? and L’Arrange under the agreement between them was not represented by the amount to be paid by Daly to L’Arrange under the agreement between them. Third, that tha agreement between Daly and L’Arrange was not inconsistent with any obligation imposed on Daly by the agreement between him and Neuendorff. Fourth, that there was no cause of action against Daly for royalties on said play; and that the counterclaim for such royalties was properly disallowed.
    Neuendorff also had a contract with Mr. Von Schoenthan, whereby Von Schoenthan transferred to Neuendorff the right and power to grant to all other stages (that is other than the Germania Theatre, as to which other provisions were made) in the United States the right of production of all stage plays composed for the Germania Theatre, to affix and determine the compensation and royalties and to collect them for him, Von Schoenthan, Neuendorff to pay to Von Schoenthan fifty per cent, of the income received by him from such production on such other stages, after making certain specified deductions. Von Schoenthan composed certain plays, which it is assumed were embraced in the above agreement between Daly and Neuendorff. After the making of that agreement Daly made an arrangement with Von Schoenthan directly for their production. Daly did produce them with the result of large gross receipts. Defendant claiming by mesne assignments a demand asserted by Neuendorff for royalties on these plays under his agreement with Daly, sought to counterclaim that demand.

      Held, 1. That under the terms of the agreement between Neuendorff and Von Schoenthan, Neuendorff was merely an agent of Von Schoenthan for the production of his plays on stages other than that of the Germania Theatre. 2. That the power to collect given to Neuendorff was a personal confidence reposed in him, and a trust, and was not assignable. 3. That there was no cause of action against Daly for royalties on such plays; and that the counterclaim for such royalties was properly disallowed.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 14, 1887.
    Appeal by defendant, from judgment entered upon verdict of jury. The complaint was as followá :
    “ The plaintiff, by Olin, Bives & Montgomery, his attorneys, for complaint in this action, alleges :
    That on or about the 1st day of October, 1883, the plaintiff and defendant made, signed, and delivered a certain agreement in writing, in the words and figures following, that is to say:
    ‘‘ Memorandum of agreement made this 1st day of October, 1883, by and between Augustin Daly, manager Daly’s Theatre, New York, and John Stetson, lessee Fifth Avenue Theatre of New York, for themselves and their respective executors, administrators and assigns to wit, viz.:
    “ Said Daly hereby sells to said Stetson the exclusive right to give performances of the plays of Pique and Divorce for thirty consecutive weeks during the theatrical season of 1883-84, commencing on or about Monday, October 22d, 1883, in all cities and towns in the United States and Canadas, excepting the City of New York, and the towns and cities heretofore sold to Brown and Orenstein for Jane Coombs, a list of which is herewith appended, one performance each night to be given during said period.

      a The said Stetson hereby agrees to pay said Daly the sum of two hundred (200) dollars each week for thirty consecutive weeks, commencing the first Saturday after said performances begin, payable to said Daly in the City of New York.
    “ The said Stetson also agrees to print in a distinguishable manner the name of Augustin Daly, as author of said plays in each advertisement, poster and bill of said performances.
    “ In witness whereof we have hereunto set our hands and seal.
    Witness: JOHN STETSON,
    B. E. Stevens.” AUGUSTIN DALY.
    That the defendant, though often requested so to do, has not paid the sums of money due under the said agreement, nor any part thereof, except five sums of two hundred dollars each, paid respectively on the 30th day of October, and the 5th, 10th, 17th and 24th days of November, 1883.
    That there is now due and owing from the defendant to the plaintiff by reason of the premises, the sum of five thousand dollars besides interest.

      Wherefore, the plaintiff demands judgment against the defendant for the sum of five thousand dollars, with interest thereon from the 1st day of December, 1888, together with the costs of this action.”
    The answer was as follows :

      “ The defendant, by A. J. Dittenhoefer, his attorney, answering the complaint of the plaintiff herein, respectfully shows:
    First.—He denies that there is now due and owing from this defendant to the plaintiff the sum of five thousand dollars, besides interest, or any sum whatever.
    For a further and separate answer and defence, and by way of counterclaim, this defendant alleges upon information and belief: ” He then set out several counterclaims.
    The facts appearing on the trial are sufficiently set forth in the opinion, and in the head-note.

      A. J. Dittenhoefer, attorney, and of counsel for appeallant..

      Olin, Rives & Montgomery, attorneys, and Stephen H. Olin, of counsel for respondent.

       The points of counsel were elaborate and exhaustive ; and can be found in the library of the court.

   By the Court: Sedgwick,Ch. J.

The action was for damages for the breach of a written contract for the payment of money. The answer did not make an issue of fact with the complaint and there was no demurrer. The plaintiff was entitled to a judgment of course. As there was no issue, there was no trial of plaintiff’s claim and the defendant was not entitled to make an objection as to the sufficiency of the complaint, which can be made properly only upon demurrer or upon trial. It is not necessary to go into the merits of the objection that was made further than to say, that the objection was incorrect in assuming that upon any construction of the agreement, payment by the defendant was to depend upon more than one performance being given by him. The defendant was to pay $200 each week for 30 weeks, and to commence to pay on the 1st Saturday “ after said performances begin.” One performance would fix the beginning of the payments. After that the weekly payments were to continue without interruption. The complaint was sufficient in stating that the defendant had begun the payments.

The other questions in the case relate to counterclaims by defendant.

The first counterclaim was made by the defendant as assignee of Schwartz, who was assignee of Hyatt, who was assignee of Neuendorff of such rights as Neuendorff possessed under a written document made by him and the plaintiff, and another document made by Neuendorff and L’Arronge.

On June 15,1878, Neuendorff made a written contract with L’Arronge, a dramatic writer. L’Arronge, among other things assigned to Neuendorff “ exclusively all property rights on all these plays ” namely, all plays, • dramas and comedies composed or arranged by Mr. A. L’Arronge, and which from to-day forth will be written by Mr. A. L’Arronge for the United States of America, so that Mr. Neuendorff exclusively has the right to give to other stages in North America, German as well as English, the permission to perform said plays, to fix and determine the royalties for the same, and collect such royalties from the other managers, and furthermore to have the plays translated and adapted; in short, that Mr. Neuendorff is authorized to act as the sole proprietor of the same.”

As a ground of reversing the judgment below the counsel for appellant makes the proposition, that by the terms of this contract Neuendorff became the owner of the plays referred to, and in particular of one, named in English “ Dollars and Sense.” The learned judge below held for the purposes of the trial, that Neuendorff was in fact the owner, but took the verdict of the jury as to the effect upon Neuendorff of an agreement in writing that he made with the plaintiff.

That agreement was made December 27, 1881. It recited that “ said Neuendorff is the agent of Adolph L’Arronge and several other dramatic authors residing on the continent of Europe, for the production, sale and licensing the performances and translations of their unprinted and unpublished plays and dramas throughout the United States, and that “ the'said Daly is a manager ” and witnessed “ That in consideration of one dollar paid to said Neuendorff individually, and of one dollar to him paid as agent of each of the above named persons, and of other good and valuable considerations, the said Neuendorff agrees for himself and also as agent of the above named authors, to deliver to the said Daly a copy of every unpublished or unprinted play or dramatic composition written by said above named persons or either of them or of any new and unpublished play of any other German author of which said Neuendorff may become the agent,” “ and to give, assign and grant to said Daly the sole and exclusive right of making adaptations of such plays in English, of performing or causing and permitting to be performed ” such English adaptations throughout the United States, and that said Daly ‘ agrees to pay to said Neuendorff as such agent as aforesaid, for every performance in the city of New York of either of such plays a royalty or sum equal to 5 per cent, of his gross receipts of such performances under his license,” etc., and in the event of a failure of Daly to fully pay the royalty “ it is agreed that said Neuendorff as agent for said authors and plays, shall have the right to stop and enjoin such performances by Daly.”

After these agreements were made, L’Arronge composed and sent to Neuendorff, the play “ Dollars and Sense.” Neuendorff, by the order of L’Arronge, first gave it to Wallack, a manager of a theatre, for examination and approval or rej ection. L’Arronge, had instructed Neuendorff not to deliver the play to Daly, because Dal v had so many plays already and did not perform them. He told this to Daly. When Wallack had rejected the play, he returned it to Neuendorff, who then handed it to Daly. While Wallack had the play, Daly began negotiations with Bloch, acting for L’Arronge, for a right in the play. Before the negotiations ripened, as they finally did into an agreement by which L’Arronge gave to Daly the right to perform the play, Neuendorff had handed to Daly the copy received from Wallack. Daly produced the play, with large gross receipts and paid to L’Arronge a percentage upon them, under an agreement between them.

The jury found, under the charge of the court, that Daly made his agreement with L’Arronge in ignorance of the terms of the agreement between L’Arronge and Neuendorff, and in good faith to Neuendorff.

The defendant claims that the agreement between L’Arronge and Neuendorff, made the latter the owner of the play; that his assignees took his right as owner; and that L’Arronge ceased to be owner and could not competently give the plaintiff a right to produce the play.

As to this it is to be said that the agreement last referred to did not assign or grant “ Dollars and Sense ” by the execution of the agreement. The play was not then in existence, and no title to it or interest in it could pass before it came into existence. Field v. The Mayor, 6 N. Y. 186, and other cases that need not be cited, recognise the law on this subject. It was an executory agreement purely, that would give an equitable title to the play when completed by the author. But this results from the parties being held to specific performance of a contract. If the parties please, they may refrain from specific performance and may vary or depart from the contract. The equitable vendee may refuse to take the title, and if he do, he cannot set up a title. And the result will be clearer if the equitable vendor accedes to that position of the vendee.

The testimony of Neuendorff gives facts that negative the idea, that under the executory agreement Neuendorf! claimed or took title from L’Arronge, or that L’Arronge ceased to be possessed of the title. Neuendorf! did not act as an owner or declare that he was. L’Arronge took the right of disposing of the play as if he were the owner, and gave instructions to Neuendorf! to act as his agent, in withholding the play from Daly and delivering it to Waback. Neuendorf! assumed the position of agent and obeyed the instructions. The agreement with Daly, as it affected this play, was an act of Neuendorf!’s not as an owner, but as an agent. The delivery of the play by Neuendorif to Daly, was not by the former as owner, but under his earlier acts and declarations, and the agreement was as agent for L’Arronge.' I am of opinion therefore, that Neuendorif never became the owner, and that plaintiff was not bound to look upon him as the owner, and would not have been, even if he were not ignorant of the agreement between Neuendorf! and L’Arronge.

The plaintiff did receive information of the agreement between Neuendorf! and L’Arronge before the representation of “ Dollars and Sense ” had ended, and before he had paid over the royalties upon receipts from later performances. In that agreement was the following provision : All other moneys which Mr. Neuendorif will receive by disposing of his property right to these plays to other theatres of the United States, are to be divided equally between Mr. Neuendorf! and Mr. L’Arronge.” It is claimed that this gave Neuendorf! one half interest, at least, in the royalties to be paid for the right to perform “ Dollars and Sense,” and that plaintiff was bound to pay ,at least the one half to Neuendorif’s assignee, after receiving notice of the provision referred to above.

It is manifest however, that the amount to be divided between Neuendorf! and L’Arronge, was not the same as the amount to be paid by Daly, the plaintiff, to L’Arronge. The former was money to be actually and competently ^collected by Neuendorf! under his agreement with L’Arronge. The money to be paid by Daly was to be paid to L’Arronge and not at all to Neuendorf!, and in this money Neuendorf! had no interest.

The agreement made by Daly with L’Arronge, through Bloch, and under which he paid, was not inconsistent with' any obligation imposed upon him by the agreement he made with Neuendorf!, the latter acting as agent for the authors. The obligation is entirely one of contract. It is that Daly “ agrees to pay the said Neuendorif, as such agent as aforesaid.” Neuendorif impliedly contracts that he is only agent. The legal consequence of this is, that the principal is the party in interest, and payment to him discharges the obligation, and it is therefore within the power of the principal to vary or modify the payment, its amount, and the conditions upon which it is to be made.

There was no agreement that Daly should pay Neuendorf! compensation for his services as agent of L’Arronge, nor was there any lien upon the amount to be paid in favor of Neuendorf!’s compensation.

I am of opinion that the verdict for plaintiff gave a correct disposition of the case as to the first counterclaim.

The second and third counterclaims related to plays of a dramatic author, Yon Schoenthan. The agreement between the plaintiff and Neuendorif that has been recited above, embraced, it may be assumed, these plays. In these instances the plaintiff made an arrangement with Yon Schoenthan directly after the making of' the agreement with Neuendorf!. The court below held that the action of the plaintiff was justified by the terms of the agreement between Yon Schoenthan and Neuendorf!, to the effect that Neuendorff was the agent of the author. The plaintiff’s refusal to pay to the assignees of Neuendorf! was sustained by the court below. This ruling of the court below was correct.

It may in addition be said, that the power of Neuendorf! to collect royalties, under his agreement with Yon Schoenthan was not assignable to the defendant and the mesne assignees. The contract between Neuenclorff and Von Schoenthan gave the former the right and power &c., to affix and determine the compensation and royalties, and to collect these for Mr. Von Schoenthan.” There was a personal confidence reposed in the agent, and a trust as to the collection and remitting of the moneys. There could therefore be no delegation of the power to collect, or an assignment of the right to collect. Story on Agency, 11 to 16. Devlin v. The Mayor, 63 N. Y., 8. There was no interest of Neuendorf! individually assigned because, until he had performed his duty and had collected he had no interest.

Under the views expressed by the learned court below, and that have been now given, there was no error upon the trial.

Judgment affirmed with costs.

Freedman and Ingraham, JJ., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    GEORGE H. BEYER, Plaintiff, v. JOHN S. SCHULTZE, Defendant.

      Constructive eviction—valid outstanding claim must be shown. Judgment roll in partition, when insufficient to establish outstanding claim. An instrument in a judgment roll must be provedas against one not apart;/, a finding or adjudication is insufficient.

    A purchaser at a partition sale takes all the rights and interests of the parties.
    In an action for a breach of a covenant of quiet enjoyment and warranty in a conveyance of real estate by reason of a constructive eviction (assuming a recovery can be had in such case on showing a breach of the covenants) the plaintiff must show a valid outstanding claim to some interest in the land.
    The plaintiff in such an action, to whom the premises had come from the defendant through various mesne conveyances, in order to establish a constructive eviction by reason of an outstanding claim of a widow of a deceased owner of an undivided interest, read in evidence, and relied solely on a judgment in an action of partition, brought by the owner of another undivided interest under the sale in which the defendant, through divers mesne conveyances, derived title to the premises in question. The judgment roll in that action disclosed that a former owner of an undivided interest in the land, had with his wife, conveyed such interest; that the grantee of their grantee was a party defendant to the partition action; that such former owner had died leaving his wife, (his widow) and three children; that one of the children had died not having been married; that by the issues raised, the parties ignored the widow’s title by descent, and did not intend to have any litigation concerning it; that the effect of the adjudication was, that the widow had no estate in the land; that the referee on title found that by an agreement (said to be thereto annexed, but not in fact annexed) between the widow and the grantee of the grantee from such former owner and his wife (the said widow), it was agreed that the said conveyance by said former owner and his wife although absolute on its face was a mortgage; and had previously found that each of the two surviving children of such former owner were seised in equal shares of the interest whereof such owner died seised; and further disclosed that such widow was not a party to the action.

      Held, that plaintiff had not by such evidence established an outstanding interest in the land in such widow.
    The fact that an instrument is contained in a judgment roll does not militate against its being proved in evidence against a stranger to the action ; but it must be proved according to the rules of evidence. A mere, finding or even adjudication that such an instrument was executed is insufficient.
    A purchaser at a partition sale, and his grantees, will take and succeed to whatever rights or interests the parties to the action have. So if a party to the action to whom a conveyance absolute on its face has been made, is in fact but a mortgagee, the purchaser and his grantees would succeed to his rights as mortgagee, and being in possession could successfully defend an action of ejectment brought by the mortgagor.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided February 14, 1887.
    Plaintiff’s exception, ordered to be heard in first instance at General Term.
    The facts sufficiently appear in the opinion.

      Charles C. Nadal, attorney, and of counsel for plaintiff, on the questions considered in the opinion argued:
    I.—The defendant claims that Frey had a defence to the ejectment suit in that the purchaser at the partition sale was subrogated to the mortgage held by Jonathan Odell, and that therefore this plaintiff was a mortgagee in possession, and Mrs. Manolt could only have maintained an action to redeem, is unfounded.
    1st. This is a matter of affirmative defence, and is clearly new matter in avoidance. It was not set up in the answer, and plaintiff was not prepared to meet it on the trial. It cannot be raised now. Manolt v. Petrie, 65 How., 206 (Code Civ. Proc., § 500.)
    2d. The holder of the mortgage, Jonathan Odell, was a party to the partition suit. His mortgage was therefore extinguished and paid off.
    3rd. The court of appeals says: “ One who is only a volunteer cannot invoke the aid of subrogation. He must have paid upon request or as surety, or under some compulsion made necessary by the adequate protection of his own rights.” Acer v. Hotchkiss, 97 N. Y., 395, 403; Gans v. Thieme, 93 N. Y., 232.
    The referee paid the mortgage as the representative of the parties to the action. The payment of a mortgage on Mrs. Manolt’s share could not have been necessary for the protection of the rights of any of the other tenants in common. No case can be found in which the doctrine of subrogation has been carried so far.
    4th. But even if Frey were subrogated to that mortgage, it would have been no defence to the ejectment action. Frey was not lawfully in possession of Mrs. Manolt’s and the rule that ejectment cannot be maintained against a mortgagee in possession only applies where the possession is lawful. Madison Ave. Bap. Ch. v. Oliver Street Bap. Ch., 73 N. Y. 83, 94; Russell v. Ely, 2 Black, (U.S.), 575.
    In Chute v. Emmerich, (99 N. Y., 342) which was an action of ejectment, the court held that the defendant was subrogated to a mortgage which he had paid off, but judgment of ejectment was rendered.
    II.—The judgment in the partition asked is competent evidence of the fact that the instrument of July 18, 1854, is a mortgage.
    1st. The defendant derives his title directly from the partition action. He claims under the judgment therein. It is a muniment of his title. He is absolutely bound by it and cannot contradict it. Manolt v. Petrie, 65 How., 206 ; Chatauqua Bk. v. Risley, 4 Den. 480; s. c. 19 N. Y. 369, 377. Barr v. Gratz, 4 Wheat., 213.
    2d. Both the parties to this action derive title from the partition action. Greenleaf on Evidence, §§ 189, 523.
    The judgment in the partition action is therefore competent evidence between the parties hereto to prove any fact determined by that judgment. Campbell v. Hall, 16 N. Y., 575, 579 ; Verplanck v. Van Beuren, 76 N. Y., 247, 257 ; Greenleaf on Evidence, §§ 523, 528.
    And this would be true even if judgment were by default or confession. Brown v. Mayor, 66 N.Y., 385, 390.
    It was only necessary for plaintiff to show that there was an" outstanding life estate in Mrs. Manolt, at the time defendant made his covenants; in doing this plaintiff is not bound to use the same evidence that Mrs. Manolt would have used in the ejectment action against Frey. What might be competent evidence for that purpose in one action, might be incompetent in the other.
    3d. But in any event the judgment in the partition action would have been competent evidence in favor of Mrs. Manolt against Frey, to prove that the instrument of July 18th, 1854, was a mortgage on the ground that it contained the solemn admission of Jonathan Odell, that it was a mortgage. 1 Greenleaf on Evidence, § 527. Booth v. Powers, 56 N. Y., 22, 33.
    Admissions of one claiming or having title to land, are admissible against one claiming under him. Chadwick v. Fonner, 69 N. Y., 404; Jackson v. Bard, 4 J. R. 230 ; Pitts v. Wilder, 1 N. Y., 525; Abeel v. Van Gelder, 36 N. Y., 513 ; Vroom v. King, 36 N. Y., 477 ; Greenleaf on Evidence, vol. 1, §§ 189, 190.
    Frey, and all the successive holders of this land, claimed under the parties to the partition action. One of those parties was Jonathan Odell, who claimed to own, under the instrument of July 18, 1854, the very interest which Mrs. Manolt sought to recover. Odell, in the partition action solemnly admitted that instrument to be a mortgage. The judgment would therefore be competent evidence in favor of Mrs. Manolt, to prove that admission as against Frey, or the defendant herein, or any one else claiming under the partition action.
    4th. The judgment would have been evidence for Mrs. Manolt also on the ground that it is recited in the deeds under which defendant claims. Jackson v. Thompson, 6 Cow., 178.
    5th. Also on the ground that it is a judgment in rem are admissible in favor of strangers. Greenleaf on Evidence, vol. 1, §§ 525, 541, 555.
    6th. Finally the defendant himself has admitted that the instrument of July 18, 1854, was a mortgage.
    The motion to dismiss, assumes and states that it is a mortgage.
    A chain of title having been shown from the partition action to defendant, it will be presumed, in the absence of evidence to the contrary, that defendant claims title under that action. Benson v. Bolles, 8 Wend. 175.

      John B. Whiting, attorney, and A. R. Dyett, of counsel for defendant, on the questions considered by the Court, argued:—
    I.—The plaintiff claimed that the deed from George J. Manolt and wife to Mary Lyons was, in fact, a mortgage, and that, therefore, the equity of redemption descended to the children of George J. Manolt, and that when one of these children died intestate and without issue, his mother took a life estate in his share, which was ii, but the plaintiff did not prove that that deed was a mortgage. The judgment roll did not prove this fact, because Elizabeth L. Manolt, the alleged life tenant was not a party to the action, and was not bound by the judgment, and that being so as between her and the other parties thereto, they were not bound. 28 N. Y. 290, 284; 32 N. Y. 455, 356; 19 Wend. 471, 472; Bigelow on Estoppel, 46, 47. The judgment roll was specifically objected to for that reason, and although the court admitted the judgment roll, it was admitted solely for the purpose of proving notice to the defendant that the deed was a mortgage, and not to prove the fact itself.
    II.—If the judgment roll was admissible for any purpose, except for that for which it was admitted; it is well settled that a judgment is res adjudícala and conclusive, as well upon the law as the facts, and the judgment, as already stated, decided as matter of law, that Elizabeth A. Manolt and Lewis J. Manolt, children of George J. Manolt, deceased, were each seized in fee of an undivided of the premises, and no mention is made of any life estate in Elizabeth L. Manolt. This being so, the judgment established that she had no life estate. Burkhead v. Brown, 5 Sandford, 134, pp. 148 (foot), 149, 150; Lawrence v. Houghton, 8 Johns. R. 130; 19 N. Y. 369, at p. 377, last paragraph, cited infra under Point IV.
    HI.—The purchaser of the land under the judgment through whom the defendant derived title, was rightfully in possession, in any event, of and as to the other Ar he acquired the vested remainder, subject to Mrs. Manolt’s life estate, if she had any, and as to that estate, if he did not acquire it as purchaser, he became equitable assignee of the mortgage, Miner v. Beekman, 50 N. Y. foot pp. 344, 345; 25 N. Y. 320; 47 N. Y. 261, at p. 263.
    Mrs. Manolt could not, therefore, maintain ejectment to recover her life estate, for ejectment will not lie against a mortgagee in possession. Miner v. Beekman, 50 N. Y., foot pp. 343, 344; Phyfe v. Reilly, 15 Wend. foot of pp. 253, 254.
    IV.—The plaintiff on the trial claimed that the defendant was bound by this judgment, because he claimed under it. The answer is that the defendant did not claim under the judgment. He did not offer it in evidence ; the plaintiff did, and he objected.( There was no question of his title to the land in fee, except as to a life estate in an undivided twenty-fourth of it. As his title was undisputed, with this exception, there was no reason why he should have recourse to the judgment. Certainly not to establish his title to this life estate. The judgment, as far as it proved anything on this subject, proved the contrary. The plaintiff cited the opinion of Mr. Justice Ikgraham in Manolt v. Petrie (65 How. 206, at p. 209,) but it does not appear by the report of that case which party introduced the judgment roll in evidence. Probably the defendant introduced it herself. Again, the point that the defendant was not bound by that judgment, because the plaintiff was not a party to it, and was not bound, and that estoppels must be mutual, does not appear to have been raised, and the court does not speak of it, and in the case referred to in the opinion (4 Denio, 481; 19 N. Y. 369, 377), the defendant necessarily to prove his title gave in evidence a decree determining an assignment by a judgment debtor to be fraudulent and void.
   By the Court.—Sedgwick, Ch. J.

The action was for damages for the breach of a covenant of quiet enjoyment and of warranty, in a conveyance of real estate made by defendant. It will be assumed that plaintiff showed a right to recover if he showed a breach by defendant. The alleged breach was an eviction by Elizabeth L. Manolt, as owner of a life estate in undivided part of the fee. The eviction was not actual but constructive. The plaintiff had paid certain moneys in buying Mrs. Manolt’s claim and for expenses. An ejectment suit had been begun by Mrs. Manolt against one Frey to whom the plaintiff had conveyed, but did not proceed to judgment, as her claim was bought in by Frey who was reimbursed by plaintiff. The defendant was not notified to defend the action, and therefore the plaintiff was bound to prove on the trial below that Mrs. Manolt was entitled to the interest she claimed. . The only proof on the part of plaintiff was a judgment roll in partition. A grantor, under whom defendant had taken title, was the purchaser at the sale in partition and the referee had conveyed to him. The plaintiff, on the trial below, took the position that the purchaser and his grantees were . bound by the adjudications in the partition action.

The record disclosed, as was proved by defendant here on the trial below, that one George I. Manolt, being seized in fee of A undivided parts of the premises, made a deed, which in form was one of absolute conveyance in fee of his interest, in which his wife, the Elizabeth L. Manolt above named, joined to one Mary Lyon, and that Mary Lyon conveyed, hi a similar manner, to one Odell.

George I. Manolt died, leaving surviving him Elizabeth L. Manolt, his widow, and three children, George T., Elizabeth A. and Lewis J.

Afterwards an owner of another undivided interest began the action of partition referred to.

It is manifest that if the title of Odell were absolute, then Elizabeth L., who, at the time of the conveyance in which she joined had no more than an inchoate right of dower, was not a necessary or proper party to the action of partition. On the other hand if the conveyance were a mortgage and Odell only a mortgagee, and all of the three children Avere living, if she Avere made a party she would represent only a doAver right in a surplus after payment of the mortgage. In fact, however, one of the three children had died, not having been married, and, under the statute, if Elizabeth L. had not absolutely conveyed, she took for her life the estate of the deceased child, which was -A undivided interest. She was not made a defendant. The surviving children, Elizabeth A. and Lewis I., were made defendants.

The complaint averred that the conveyance from George I. "and Elizabeth L., his wife, to Mary Lyon, and from Mary Lyon to Odell had been made and “ that they do not know, are not certainly informed, and cannot state whether the said paper writing, so purporting to be a deed of conveyance by the said George I. Manolt and Elizabeth L., his wife, as grantor therein, is as against the surviving children, heirs at law of the said George I. Manolt, or any of them, valid, binding or effectual in law or in equity, so as to have any operation in respect of the said £ part of the said real estate, etc.; and that the said defendant, Jonathan Odell, is entitled to the equal undivided ■§• part thereof, as representing the share of the said George I. Manolt, in case this court shall adjudicate that the interest of the said George I. Manolt in the said real estate and premises passed to the said Mary Lyon under deed, by virtue of the said paper writing purporting to be a deed of conveyance thereof, hereinabove mentioned, but in case this court shall otherwise determine, then and in such case the defendants, Elizabeth A. Manolt and Lewis I. Manolt, (the surviving children,) are entitled to the said last mentioned equal undivided part of the said real estate and premises in equal moieties, or such other estate and interest therein as this court shall adjudge.”

The answer of the two surviving children alleged they deny that the said paper writing purporting to be a deed of conveyance by the said George I. Manolt and Elizabeth his wife, is as against these defendants or either of them, valid or binding &c., so as to have any operation in respect of, or convey, or transfer any title to the said one-eighth part &c., and upon information and belief that the consideration expressed in the deed of George I. Manolt and Ms wife Elizabeth L., to Mary Lyon, namely $3,000, and no part of it was ever paid; that Odell paid no consideration to Lyon, but took the conveyance thereof in some manner or form in trust for the said Mary Lyon, or for the creditors of said Mary Lyon, and also with notice that the said Mary Lyon had not paid said purchase money, and these defendants claim and insist that the said Jonathan Odell took the conveyance of the said premises subject to any and whatever lien or liens and equities the same was subject to in the hands of the said Mary Lyon ;” that they “ deny that said Jonathan Odell is entitled to the equal undivided one-eighth part as representing the share of the said George I. Manolt,” and they claim and insist that “if it shall be adjudged by the court, that the fee passed from George I. Manolt to Mary Lyon * * then the same is subject to the lien and claim for the amount of the purchase money or consideration expressed “ in the conveyance to Lyon.”

It is evident that the parties ignored the title of Elizabeth L. by descent, and did not intend to have any litigation concerning it. The question related to whether Odell owned the one-eighth, or the two surviving children owned it, without question as to the life estate of Elizabeth L.

The judgment in this was that each of the surviving children was seized in fee simple of one undivided sixteenth part of the premises. The adjudication was in effect that Elizabeth L. Manolt had no estate in this one-eighth. Of course if the plaintiff should concede that she was bound by this judgment, then the interest claimed for her, passed to .the purchaser at the sale in partition. The plaintiff would be forced then to the position that asshe was not a party, the adjudication does not affecf her. There would then be no proof that the conveyance was a mortgage. To prevent this result, a certain finding is resorted to, that was made by the referee in partition. This finding is “ that by the'consent and agreement of the said Jonathan Odell and the said Elizabeth A. Manolt and Lewis I. Manolt, which is hereto annexed, it is agreed that the said conveyance above mentioned by the said George I. Manolt and Elizabeth L. his wife, to the said Mary Lyon, although absolute on its face, was in fact a mortgage on the share of the said George I. Manolt, in the premises above described, to secure the sum of $3,000.” The report also found that there was then due and unpaid upon the said mortgage, for principal and interest, the sum of $6,941.53.

Assuming that this shows that the conveyance in 1854 was a mortgage, and the conveyance of Lyon to Odell in 1854, was an assignment of that mortgage, that, does not tend to disclose in whom the equity of redemption was in 1873.

The finding did not mean to assert that such equity was in Mrs. Manolt; for earlier findings were that George I. Manolt had died leaving his widow Elizabeth L. and three children; that one of the three had died, “ and that the said other two children of the said George I. Manolt aré still living, and are parties defendant in this action, and are each seized in fee simple of one undivided sixteenth of the premises described in the complaint. And as has already been said, the judgment was in accordance with these findings.

Therefore there was no adjudication in favor of a title in Mrs. Manolt, if she were at liberty to use the proceedings in her own behalf. In fact, however, as she was not a party to the action and not bound by its proceeds ings, she could not use them against those that were parties. Remington Paper Co. v. O’Dougherty, et al., 81 N. Y. 476.

It is not necessary to deny that a record of an action may be used by one not a party to it, to establish the existence of a fact, provided the rules of evidence are observed. For example, if, which is not now determined, an agreement of Odell with the surviving children that his interest in the real estate was that of a mortgagee only, was competent evidence against this defendant, that agreement could be put in evidence although it was contained in a judgment-roll. On the other hand, a,n adjudication that he so agreed, would not be competent in favor of one not a party, much less would be a finding of fact that he so agreed, for unless it is an adjudication it is merely hearsay testimony—the declaration of the referee.

In the present case adjudications, merely, are adduced from the judgment-roll. The agreement said to be annexed is not shown in evidence. No original act or declaration of Odell is shown.

H, however, it is supposed that Odell was a mortgagee only, then in equity the purchaser at the sale and his assignees, and among them the plaintiff, would succeed to Odell’s position as mortgagee in possession. The plaintiff had that defence to the ejectment, and omitted to interpose it when he was called upon to defend Frey, to whom he had conveyed. Therefore, while there was no actual eviction there was no constructive eviction, because no right to evict Frey was shown.

The judge below correctly held that no proof had been given that Odell was only mortgagee.

The plaintiff’s exception to the direction of a verdict for defendant is overruled, and defendant is to have judgment on verdict with costs.

Freedman and Ingraham, JJ., concurred.


author: By the Court.

text:
    ELIZABETH L. PETRIE, Appellant and Respondent, v. FREDERIC FOLZ, Appellant and Respondent.

      Constructive eviction, action based on may be maintained. Original covenantor, action will lie against. Damages, measure of in such an action against original covenantor. Beeitals in instrument when not evidence against persons not parties to it.

      In this case defendant Folz had purchased at the sale in the partition action referred to in the preceding case, the locus in quo ; he conveyed to one Marshall for the consideration of $55,000, with a covenant of quiet enjoyment and a warranty; Marshall conveyed to A. W. and C. P. for $1.00 with a similar covenant and warranty; A. W. and C. P. conveyed to R. M. P. for $40,000 with a similar covenant and warranty; R. M. P. conveyed to the plaintiff for $1.00 with a similar covenant and warranty. An action of ejectment by one claiming a life estate in the one twenty-fourth part of the premises was brought against the plaintiff and resulted in a recovery for the possession of said one twenty-fourth part and for $227.10 damages and $234.18 costs, amounting in the whole to $461.28. This plaintiff read in evidence a satisfaction piece for the money j udgment and a release from the plaintiff in that action, expressing a consideration of $800. The jury under the direction of the court rendered a verdict for the plaintiff for $1,547.65.
    Held, 1st. That an action for a breach of the covenant for quiet enjoyment, and of the warranty based on a constructive eviction, could be maintained on proof that there was a valid outstanding title which could be enforced by "legal ejectment.
    2d. That such an action would lie against Folz, the first covenantor and warrantor.
    3d. That a recovery could be had against such first covenantor and warrantor for the amount which the plaintiff was obliged to pay to maintain her possession and quiet the outstanding title, not exceeding the value of that title, ascertained by the technical rules on the subject, and not exceeding such part of the consideration specified in the deed given by such first covenantor and warrantor as represented the value of the land to which he gave no title.
    4th. That plaintiff’s recovery was not limited to the one dollar consideration mentioned in the deed of her immediate grantor.
    5th. That the recital of the consideration of $800, was not proof against the defendant that that amount was paid.
    6th. As to whether the satisfaction of the money judgment in the ejectment action was proof that the amount of the judgment had been paid, queere.
    Before Sedgwick, Ch. J., Teuax and O’Gormar, JJ.

      Decided February 14, 1887.
    Cross appeals from judgment entered in favor of plaintiff, upon a verdict of jury for plaintiff.

      The facts sufficiently appear in the opinion and the head note.
    I. Charles C. Nadal, attorney, and of counsel for plaintiff, on the questions considered in the opinion, argued:
    I. —The property in question having passed by mesne conveyances from defendant to plaintiff, the plaintiff has become the assignee of the covenants in the defendant’s deed. Spencer’s Case, 1 Smith Leading Cases, 102 and note.
    II. —Mrs. Elizabeth L. Manolt’s recovery in the ejectment suit against this plaintiff under a title paramount to that of the defendant, and plaintiff afterward purchasing her life estate, and taking from her a deed and thereby acknowledging her title, was an eviction. It was as complete an eviction from the undivided interest as could possibly take place.
    A physical expulsion is not necessary to constitute an eviction. Cowdrey v. Coit, 44 N. Y., 382 ; Tucker v. Cooney, 34 Hun, 227; Hunt v. Amidon, 4 Hill, 345 ; Dyett v. Pendleton, 8 Cow. 727; Bordwell v. Colie, 1 Lans., 141.
    IH.—The measure of damages on breach of covenants of warranty and quiet enjoyment, is the consideration named in the deed containing the covenants, with interest from the time plaintiff loses the mesne profits and the costs of the ejectment suit. Staats v. Ten Eyck, 3 Cai. R., 111; Kent’s Com., Vol. 4, pp. 474, 475, 476. Greenleaf’s Ev., Vol. 2 § 264. Greenleaf on Real Estate, Vol. 1, p. 13, note. Pitcher v. Livingston, 4 John, 1; Bennett v. Jenkins, 13 Id. 50 ; Baldwin v. Munn, 2 Wend., 399 ; Dimmick v. Lockwood, 10 Id., 142 ; Kinney v. Watts, 14 Id., 38 ; Wagner v. Schuyler, 1 Id. 553; Baxter v. Ryers, 13 Barb. 267, 283 ; Adams v. Conover 22 Hun, 424.
    Some of the cases say that the measure of damages is the consideration paid, but all of these were actions between the immediate grantor and grantee.
    The plaintiff, having been evicted by a person having a life estate in a part and having lost the rents and profits from March 14, 1877, she was entitled to recover under the authorities, interest at 6 per cent, on ^ of $55,000 (the consideration in defendant’s deed), for the time that Mrs. Manolt had a probable expectation of life, which was years, and which amounts to
    $1,153.88
    $655.37
    234,18
    38.63
    2,082.06
    The court below refused to direct a verdict for this amount, and the plaintiff excepted.
    The court made a computation which was exactly like the above, except that the court computed the value of Mr. Manolt’s life estate at 5 per cent, under Rule 71, and limited the period for which interest might be recovered, to six years.
    In these two respects the plaintiff claims that the court erred.
    IV. The court erred in computing the value of the life estate at 5 per cent. It should have been computed at the legal rate of interest, 6 per cent. Wagner v. Schuyler, 1 Wend., 553.
    ' Rule 71, under which the court held that the computation should be made at 5 per cent., does not apply to such a case. It applies only to money in the hands of the court.
    The court has no -power to make rules for computation of damages.
    Also, interest on this amount from March 14, 1877 (the time from which she lost the rents and profits) to January 1, 1880, at 7 per cent., and from this date to date of trial at 6 per cent.
    Costs.of the ejectment suit Interest on the last amount

      V. The court erred in limiting the period for which plaintiff could recover interest, to six years.
    Plaintiff should have had interest at 7 per cent., up to January 1, 1880, and from that date up to date of trial, at 6 per cent. Sanders v. The Lake Shore, &c., R. R., 94 N. Y., 641.

      George H. Foster, attorney, and of counsel for defendant, on the questions considered in the opinion, argued :
    I. The plaintiff failed to show any damage sustained by her. She only paid one dollar for the property. Having paid only a nominal price she could only sustain nominal damage. No damage whatever was proved. She gave no proof that she had paid one cent to Mrs. Manolt. Neither the acknowledgment of satisfaction of the judgment, nor the consideration expressed in Mrs. Manolt’s release, are competent evidence against defendant of any payment or any damage sustained. Ramy v. Hardy, 1 Western Rep., 54 ; Rose v. Taunton, 119 Mass. 99.
    The party recovers what he has paid, with interest, no more. Pitcher v. Livingston, 4 John 1; Delavergne v. Norris, 7 Id. 358.
    H.—The court improperly refused to limit the damages to the amount of consideration of the deed to the plaintiff. Dimmick v. Lockwood, 10 Wend. p. 156 Staats v. Executors of Ten Eyck, 3 Caines, 111; Pitcher v. Livingston, 4 John., 1, 17 ; Bennett v. Jenkins, 13 Id. 50; Dimmick v. Lockwood, 10 Wend., 142; Moak v. Johnson, 1 Hill, 99 ; Kelly v. Dutch Church, 2 Hill, 113 ; Furnis v. Ferguson, 15 N. Y., 437; Kinney v. Watts, 14 Wend., 38 ; Morris v. Phillips, 5 J. R., 49 ; Guthrie v. Pagsley, 12 J., 126 ; Bingham v. Weiderwax, N. Y., 509.
   By the Court.

Sedgwick, Ch. J. The action was for damages for breach of a covenant of warranty. The supposed breach was a constructive eviction of plaintiff by the owner as claimed by plaintiff, of a life estate in a twenty-fourth part of the fee. There was no actual eviction. The plaintiff went into possession after the conveyance to her, and remained in possession down to this action. There was therefore no actual eviction, there being no actual disturbance of possession. If however, to maintain her possession, it was necessary to quiet the outstanding title, and she was obliged to buy it in, she could recover from the covenantor the amount she was obliged to pay, if she could also prove that the outstanding title was valid and could be enforced by legal ejectment. The measure of damages is compensation. The amount that she was obliged to pay would be the amount of the recovery, not exceeding however, the° value of the title ascertained by the technical rule on the subject.

In the present case it appeared that an action of ejectment against the plaintiff by the person claiming to be the owner, had resulted in a judgment against the present plaintiff, for the recovery of the premises of said one twenty-fourth part and for $227.10 damages for withholding the possession, and $234.18 costs. She satisfied the judgment for costs, and the owner made a deed to the plaintiff, releasing to the latter all the former’s interest. This deed recited a consideration of $800. There was however, no proof of what was in fact paid by the plaintiff. The plaintiff recovered an amount greater than the sum of the judgment for costs in ejectment and the consideration named in the release. The recovery was based upon a calculation of the value of the undivided interest, the value of the land being taken at the amount of the consideration of the deed made by the defendant. Any question as to the method of calculation is immaterial to this appeal when the result shows that, at all events, it was a larger amount than the plaintiff was entitled to recover, inasmuch as it was greater than the plaintiff was obliged to pay, to buy in the outstanding title. There remains to be said, that the defendant was not correct in his claim, that the value of the land was to be deemed the amount of consideration recited in the deed to plaintiff, that is, $1. The warrantor is liable according to the value of the land at the time of the warranty, which is conclusively fixed at the amount of the consideration of the sale. Rawle on Cov., 243; Sedgwick om Dam., 5th Ed., 168, and the cases cited in these books from the state of New York. Evidently the warrantor should at least return such part of the consideration as he appropriated, as represents the value of the land to which he gave no title.

My opinion is that the recital of the consideration of $800 in the release to plaintiff was not proof against this defendant that that amount was paid. It is not absolutely necessary to determine that proof of the satisfaction of the judgment in ejectment for the costs, was not proof that the amount of the judgment had been paid, yet it is proper to say that on another trial it will be expedient to show what was paid for the satisfaction.

The result of what has been said is, that there should be a new trial. There were other important questions on the trial which should have attention now, if the case clearly presented the means of answering them. The real title of the plaintiff in the former ejectment action, was of first importance. No original proof as to this was given. The judgment in ejectment was not evidence for this purpose in this case, although it was relevant as to the fact of a constructive conviction. When it was offered in evidence the defendant objected that he, not being a party to it, was not bound by it, and it was only admitted as evidence after the plaintiff disclaimed that the defendant was bound by it.

It is supposed by counsel for plaintiff, that a judgment in partition, under which the defendant bought the premises, was an adjudication against him, that a conveyance, apparently in fee, through which he claimed the title, was in fact a mortgage. The judgment roll was probably put in evidence. The findings embrace a doubtful kind of declaration that by agreement between some of the parties to the partition the conveyance referred to was a mortgage. But the condensed description of the judgment makes no reference ‘to the result of their agreement. Mere findings or verdict, without judgment upon them, do not make an adjudication. As the case is made up, there is no judgment in the partition action that the conveyance was a mortgage. If, in fact, the judgment made some disposition of this, a case should show it.

The plaintiff takes an appeal on the ground that the learned judge directed the verdict for the plaintiff to be in an amount less than it should be. What has already been said, indicates that the amount was in excess of the plaintiff’s right of recovery.

On the plaintiff’s appeal the judgment is affirmed with costs. On the defendant’s appeal the judgment is reversed, and a new trial ordered, with costs to abide the event.

Truax and O’Gorman, JJ., concurred. .