author: Pratt, J.

text:
    Board of Health, New Rochelle, v. Matter of Noyes.
   Order affirmed, without costs. Opinion by

Pratt, J.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    The People of the State of New York ex rel. McGrath v. Board of Excise of Yonkers.
   Order of commissioners affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Evelyn Jackson and others, Appellants, v. Peter De Grief, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Evelyn Jackson and others, Respondents, v. Manuel Claudio, Appellant.
   Judgment of County Court and justice reversed, with costs. Opinion by

Dykman, J.


text:
    Evelyn Jackson and others, Appellants, v. Herman Sandman, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Evelyn Jackson and others, Appellants, v. Clement McMillan, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Pratt, J.;

text:
    Walter J. Donohue, Receiver, etc., Respondent, v. Alexander Joyce and others. Appellants.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J , not sitting.


text:
    Oliver T. Hewlett v. Emeline Jewessen, Administratrix.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    International Tile Company v. Henry Ahlers.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.


author: Barn ard, P. J.

text:
    David H. Hunt, Respondent, v. John D. Griffen, Appellant.
   J udgment and order deny ing new trial affirmed, with costs. Opinion by

Barn ard, P. J.


author: Dykman, J.;

text:
    The People of the State of New York ex rel. Douglass v. Joseph Dykes, Supervisor.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Dykman, J.;

Barnard ,P. J., dissenting.


text:
    Ada M. Roe v. Eugeue C. Roe.
   Appeal dismissed. Opinion by

Pratt, J.


text:
    William Hulse. Respondent, v. Samuel B. Nicholl, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Theodore Phillips, Respondent, v. Burton A. Phillips, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Pratt and Dykman, JJ.

text:
    Cornelia A. Van Wagener v. William B. Royce and others.
   Judgment affirmed,without costs. Opinions by

Pratt and Dykman, JJ.


author: Barnard, P. J

text:
    Thomas J. Macvey. Respondent, v. The Metropolitan Elevated Railway Company, Appellant.
   J udgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J


text:
    In the Matter of the Petition of the New York and Brooklyn Bridge Company to Acquire Land of the Third Methodist Episcopal Church, Brooklyn.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Barnard, P, JM not sitting.


text:
    The People of the State of New York ex rel. Frank Hasbrouck v. The Board of Canvassers of Dutchess County
   Or.der quashing writ affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    The Long Island Railroad Company, Appellant, v. Joseph Silverstone and others, Respondents.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. John Y. McKane v. John L. Voorhies, as Commissioner, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Dykman, J.


text:
    Rosalie A. Bleakley, Respondent, v. Timothy J. Sullivan, Appellant.
   Motion denied, without costs. Opinion by

Pratt, J.


text:
    James Robertson v. Mrs. Smith Caskey.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Charles A. Johnson, Respondent, v. Isaac Bernheimer and another, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Stephen D. Simonson, Executor, Respondent, v. The New York City Insurance Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J., and Pratt, J.

text:
    The People of the State of New York ex rel. John Harper v. John P. Adams, Commissioner.
   Order granting writ of mandamus reversed and motion denied, with costs. Opinions by

Barnard, P. J., and Pratt, J.


text:
    Evelyn T. Provost v. William T. Provost.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Charles H. Kelly, Appellant, v. Joseph E. Bloomingdale and others, Appellants and Respondents.
   Judgment upon plaintiff's appeal affirmed, without costs. Part of judgment appealed from by Bloomingdale affirmed, without costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Barnard, P. J.;

text:
    Casco National Bank of Portland, Maine, Respondent, v. John Clark and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Egbert Uchtmann, Appellant, v. Annie M. Tonyes, Impleaded, etc,, Respondent.
   Judgment and order denying new trial affirmed, with, costs. Opinion by

Barnard,P.J.;

Pratt, J., not sitting.


text:
    Jasper W. Gilbert, Respondent, v. The Board of Supervisors of the County of Kings, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Henry Spruck, Respondent, v. Hugh McRoberts, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Edward Millott, Respondent, v. The New York and New England Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J.,not sitting.


text:
    Winslow Robinson and another, Respondents, v. Charles G. West and others, Appellants.
   J udgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. Corwin v. Assessors of Middletown.
   Order referring issue to referee reversed, with costs, etc. Opinion by

Barnard, P. J.


text:
    Elise Enk, as Executrix, etc., Respondent, v. The Brooklyn City Railroad Company, Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event Opinion by

Dykman, J.


author: Pratt. J

text:
    Mark Hartley, Assignee, etc, Respondent, v. Cataract Steam Engine Company No. 2, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt. J


text:
    Abbot L. Dow v. Margaret H. Dow.
   Reargument ordered.

Barnard, P. J., dissenting.


text:
    The People of the State of New York ex rel. McCombs v. The Board of Town Auditors of Deer Park.
   Order affirmed for non-service of case and points according to submission, with ten dollars costs and disbursements.


text:
    Louisa Pfeefer v. The Brooklyn Daily Eagle.
   Appeal withdrawn.


text:
    Elizabeth Murphy v.The Brooklyn Daily Eagle.
   Appeal withdrawn.


author: Cullen, J.

text:
    Henry H. Adams, Countv Treasurer of Kings County, Plaintiff, v. The East River Savings Institution, Defendant.
   Judgment for plaintiff on submitted case, with costs. Opinion by

Cullen, J.


author: Van Brunt, P. J., and O’Brien, J.

text:
    The Mayor, etc., of the City of New York v. The New York and Harlem Railroad Company.
   Exceptions overruled and judgment ordered for defendants upon the verdict, with costs. Opinions by

Van Brunt, P. J., and O’Brien, J.


text:
    The Western National Bank, Appellant, v. Frederick Wood, Respondent, Impleaded, etc.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinions by

Van Brunt, P. J., and O’Brien, J.


author: Van Brunt, P. J.

text:
    The Manhattan Life Insurance Company, Appellant, v. The Forty-second Street and Grand Street Ferry Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, P. T., and O’Brien, J.

text:
    Mary B. De Frece, as Administratrix, etc., Respondent, v. National Life Insurance Company, Appellant.
   Judgment affirmed, with costs. Opinions by

Van Brunt, P. T., and O’Brien, J.


author: Van Burnt, P. J.

text:
    Michael H. Haffey, Respondent, v. Sarah Lynch, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Van Burnt, P. J.


text:
    William Noble, Respondent, v. James F. Carey, Appellant.
   Order and judgment affirmed,with costs. Opinion by

Van Brunt, P. J.


text:
    The Tradesmen’s National Bank, Respondent, v. The Manhattan Lumber Company, Appellant.
   Judgment reversed ana new trial ordered, with costs to appellant to abide event. Opinion by

Van Brunt, P. J.


text:
    Mary E. Connor, as Administratrix,etc., Plaintiff, v. The Mayor, etc, of the City of New York, Defendant.
   Exceptions overruled and judgment ordered upon the verdict, with costs. Opinion by

Van Brunt, P. J.


text:
    The Roosevelt Hospital, Respondent, v. The New York Elevated Railroad Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, P. J., and Andrews, J.

text:
    Francisco A. Pellas, Respondent, v. Thornton N. Motley and others, Appellants.
   Judgment affirmed, with costs. Opinions by

Van Brunt, P. J., and Andrews, J.


author: Andrews, J.

text:
    Benedict Fischer and others, Plaintiffs, v. Berthold Blank, Defendant.
   Judgment affirmed, with costs. Opinion by

Andrews, J.


author: O’Brien, J.

text:
    Max Danziger, Appellant, v. Charles Falkenberg and others, Respondents.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

O’Brien, J.


text:
    The People of the State of New York, Respondent, v.The New York, New Haven and Hartford Railroad Company, Appellant
   Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    George F. Perkins and others, Appellants, v. Collis P. Huntington, Respondent.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    The Norfolk and New Brunswick Hosiery Company, Appellant, v. Anna M. Arnold, Respondent.
   Order affirmed, with costs. Opinion by

Andrews, J.


text:
    Luther Kountze, Appellant, v. William W. Flannigan, Respondent.
   Judgment affirmed. Opinion by

Andrews, J.


text:
    George H. Dyett, Appellant, v. Central Trust Company and others, Respondents.
   Judgment affirmed, with costs. Opinions by

Van Brunt, P. J., and O’Brien, J.


text:
    Patrick S. Cassidy, Respondent, v. The Brooklyn Daily Eagle, Appellant.
   Judgment and order affirmed, with costs. Opinion By

O’Brien, J.


text:
    Jacob Tome, Respondent, v. Charles A. Gerlach, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Andrews, J.


text:
    John R. Suydam and others, Respondents, v. The New York Elevated Railroad Company and others, Appellants.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Andrews, J.


author: Per Guilam.

text:
    William A. Harding, as Administrator, etc., Appellant, v. Walter H. Field, Respondent.
   Order affirmed, with costs. Opinion

Per Guilam.


author: O'Brien, J.

text:
    In the Matter of the Probate of the Will, etc., of James Philp, Deceased.
   Decree affirmed, with costs. Opinion by

O'Brien, J.


author: Per CuHam.

text:
    The Roosevelt Hospital, Respondent, v. The New York Elevated Railway Company and others, Appellants.
   Judgment affirmed, with costs. Opinion

Per CuHam.


author: Per Curiam.

text:
    Sixth Avenue Railroad Company, Respondent, v. Metropolitan Elevated Railway Company and others, Appellants.
   Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    In the Matter of the Judicial Settlement of the Account of Henry A. V. Post.
   Appeal dismissed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Charles Myers, Appellant, v. The Mayor, etc., of the City of New York, Respondent
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion

Per Curiam.


text:
    In the Matter of the People of the State of New York ex rel. Maria Louise Collins, Respondent, v. Charles Donohue and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per CuHam.


text:
    Frederick A. Ringler and others, Respondents, v. William M. Reynolds and others, Appellants.
   Judgment affirmed, with costs upon the opinion of Mr. Justice Patterson at Special Term. Opinion

Per CuHam.


text:
    Charles H. Bunn, Respondent, v. Margaret M. Lett, Appellant.
   Motion denied.


text:
    In the Matter of the Application of the Metropolitan Elevated Railway Company (In re Jones and others, Parcel, 174).
   Order reversed, with costs and disbursements, and the clerk’s taxation affirmed. Opinion

Per CuHam.


text:
    Henry W. Dayton, Respondent, v. The McElwee Manufacturing Company, Appellant. The Same, Respondent, v. Same, Appellant.
   Order affirmed, with costs. Opinion

Per Curiam.


text:
    Henry L. Gwalter, Respondent, v. The New York Seal Plush and Tapestry Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


author: Per CuHam«

text:
    Adolph Schwartz and others, Appellants, v. Timothy B. Livingston and others, Respondents.
   Order reversed, with ten dollars costs and disbursements. Opinion

Per CuHam«


text:
    George Fuchs, Respondent, v. John A. Morris, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per CuHam.


text:
    John L. Brewster, Respondent, v. William L. Boyle and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    American National Bank of Providence v. William R. Grace.
   Motion denied


text:
    Florence M. Lane and others v. Frank Moss, as Executor, etc.
   Motion denied.


text:
    In the Matter of Forest Avenue.
   Motion for reargument denied.


author: Barrett, J

text:
    Henry Hentz and others, Respondents, v. Elizabeth F. Minor, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Barrett, J


text:
    Melvin Stephens, Respondent, v. Robert L. Humphreys, Appellant
   The portion of the order appealed from affirmed, with costs. Opinion by

Andrews, J.


author: Van Brunt, P. J., and O’Brien, J.; Ingraham, J.

text:
    Tillie Feldman and others, Appellants, v. The Grand Lodge of the Ancient Order of United Workmen of the State of New York, Respondent.
   Order reversed, with ten dollars costs and disbursements. Opinions by

Van Brunt, P. J., and O’Brien, J.;

dissenting opinion by

Ingraham, J.


text:
    In the Matter of John Townshend and others.
   Order affirmed, with costs. Opinion

Per Curiam.


author: Mayham, P. J.

text:
    Frank H. Pettee, Respondent, v. Mary H. Pettee, Appellant.
   Order affirmed, without costs. Opinion by

Mayham, P. J.


text:
    Mary Toomey v Stephen Baumis, Administrator, etc.
   Appeal dismissedj with costs.


text:
    State of New York National Bank v. Samuel Coykendall. Dutchess County Mutual Insurance Company v. Frederick C. Van Hazoman and another.
   Order on remittitur in each case making judgment of Court of Appeals the judgment of this court.


text:
    The People of the State of New York v. The Fitchburgh Railroad Company.
   Order on remittitur making the judgment of the Court of Appeals the judgment of this court.


text:
    John Eisenlord, Appellant, v. David H. Clum, Catharine L. Eisenlord and others, Respondents.
   Appeal dismissed.


text:
    Robert Dansiger and James H. Vandenburgh, Appellants, v. Edward C. White, Respondent.
   Judgment reversed, referee discharged and a new trial ordered, costs to abide the event. Opinion by

Mayham, P. J.


text:
    Norman Carpenter, as Executor, etc., Respondent, v. Emery Hall, Appellant.
   Decree of surrogate affirmed, with costs. Opinion by

Mayham, P. J.


text:
    Henry H. Williams, Respondent, v. Isaac R. Clements, Executor, Appellant.
   Judgment reversed and a new trial ordered, costs to abide the event, unless the plaintiff will stipulate to deduct $100 and interest from recovery. If stipulation made, judgment affirmed, without oosts in favor of either party on this appeal as against the other. Opinion by

Mayham, P. J.


text:
    Mary Ann Hawver, Respondent, v. Edmund R. Bell and others, Executors, etc., Appellants.
   Judgment affirmed, with costs. Opinion by

Mayham, P. J.


text:
    William H. Thomas, Respondent, v. William B. Gage, Appellant.
   Judgment affirmed, with costs.


author: Herrick, J.

text:
    The People of the State of New York ex rel. Michael Lane, Respondent, v. Benjamin Case and others, as Town Auditors, Appellants.
   Order and judgment for peremptory mandamus reversed, with costs. Opinion by

Herrick, J.


text:
    Elizabeth C. Kinmouth, Respondent, v. William McDougall, Appellant.
   Judgment affirmed, with costs. Opinion by

Mayham, P. J.


text:
    James P. Schuyler, Respondent, v. The Fitchburgh Railroad Company, Appellant.
   Judgment affirmed, with costs.


author: Mayham, P. J,;

text:
    James Thompson, Appellant, v. Isaac M. Narwood and another, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Mayham, P. J,;

Herrick, J., not acting.


text:
    Mary Van Nostrand, Respondent, v. The Walkill Valley Railroad Company, Appellant.
   Affirmed, with costs. Opinion by

Herrick, J.


text:
    William B. Weaver, Appellant, v. J. B. White, Respondent.
   Judgment reversed, new trial ordered, costs to abide the event. Opinion by

Herrick, J.


text:
    The People of the State of New York, Respondent, v. Joseph Davis, Appellant.
   Conviction affirmed. Opinion by

Mayham, P. J.


author: Mayliam, P. J

text:
    Eliza Babcock, Appellant, v. The Fitchburgh Railroad Company. Respondent.
   Judgment reversed, new trial ordered, costs to abide the event. Opinion by

Mayliam, P. J


text:
    In the Matter of the Claim of Clarence G. Carr, as Executor, Respondent, v. The Estate of Susan B. Tompkins, Deceased, Appellant.
   Order of surrogate reversed, with costs and printing disbursements. Opinion

Per Curiam.


author: Putnam, J.

text:
    Morgan L. Taylor, Respondent, v. Lewis W. Derrick. Appellant.
   Order affirmed, with costs. Opinion by

Putnam, J.


text:
    George C. Preston, Appellant, v. Samuel R Hawley, Respondent.
   Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    Jens Kaare, Respondent, v. The Troy Steel and Iron Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Putnam, J.


text:
    A. M. Aldrich and another, Respondents, v. Frank L. Davis, Appellant.
   Order affirmed, with costs and .printing disbursements. Opinion

Per Curiam.


text:
    The People of the State of New York, Respondent, v. James Kehoe, Appellant.
   Conviction reversed and new trial ordered. Opinion by

Putnam, J.


text:
    John W. Van Dyke, Appellant, v. George D. Clark, Respondent.
   Judgment affirmed, with costs. Opinion by

Putnam, J.


text:
    O. P. Dexter, Appellant, v. Warner J. Alfred, Respondent.
   Judgment and order affirmed, with costs, with leave to plaintiff to withdraw demurrer on payment of costs. Opinion by

Mayham, P. J.


author: Mayham, P. J.;

text:
    Loretta C Randall, Respondent, v. National Ice Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Mayham, P. J.;

Putnam, J., not acting.


text:
    The People of the State of New York ex rel. Jehiel B. White, Sheriff of Clinton County, Appellant, v. The Board of Supervisors of the County of Clinton, Respondent.
   Writ of certiorari dismissed, with costs to be paid by relator. Opinion by

Putnam, J.


text:
    Mary Weston, Respondent, v. The City of Troy, Appellant.
   Judgment affirmed, with costs.


author: Putnam, J.;

text:
    Charles M. Preston, Appellant, v. Reed Fitch and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Putnam, J.;

Mayham, P. J., not acting.


text:
    Sidney E. Maders, Receiver, etc., Respondent, v. William S. Whallon and others, Appellants.
   Judgment reversed, new trial granted, costs to abide the event. Opinion by

Herrick, J.


author: Lewis, J.

text:
    Eleanor D. Gaylord, Administratrix, Appellant, v. Nelson Beardsley, Respondent.
   Order appealed from reversed, with ten dollars costs and disbursements, and the defendant’s motion denied. Opinion by

Lewis, J.


author: Dwight. P. J.

text:
    The Delaware, Lackawanna and Western Railroad Company, Appellant, v. The Board of Supervisors of Livingston County and another, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion Per Curiam, left with

Dwight. P. J.


text:
    John Dennis, Appellant, v. Robert C. Harris and others, Respondents.
   Judgment and order appealed from affirmed. Opinion by

Lewis, J.


text:
    Anna Mochel, Respondent, v. Sherman W. Kroll, Appellant.
   Judgment and order appealed from affirmed on authority of Sandford v. Moss (18 N. Y. Supp., 673) and Joy v. Diefendorf (40 N. Y. St. Rep., 491).


author: Macomber, J.

text:
    Oliver M. Kemp, as Executor, etc., Plaintiff, v. The Good Templars’ Mutual Benefit Association, Defendant.
   Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the verdict. Opinion by

Macomber, J.


text:
    Enos G. Laney, Individually and as Administrator, etc., Respondent, v. Mary K. Laney, Appellant.
   Judgment reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulate to reduce the recovery by the sum of $1,930.40, as of the date of the report of the referee; and in case such stipulation be given the judgment is affirmed for the sum of $5,612.04, without costs of this appeal to either party. Opinion by

Lewis, J.


author: Dwight, P. J.

text:
    Clarinda T. Killick, Respondent, v. James H. Hooker, Appellant.
   Judgment of the County Court of Monroe county appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    May Ensign, as Administratrix with the Will Annexed, Respondent, v. Thomas Dickinson and another, Appellants.
   Interlocutory judgment appealed from reversed, with costs, and the demurrer allowed, with costs, but with leave to the plaintiff to serve an amended complaint within twenty days on payment of costs. Opinion by

Macomber, J.


author: Dwight, P. J.;

text:
    James H. Lake, Respondent, v. John B. McElfatrick and others, Appellants.
   Judgment and order appealed from affirmed. Opinion by

Dwight, P. J.;

Lewis, J., not sitting.


author: Macomber, J.;

text:
    John J. P. Read, Appellant, v. August Simon, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements, but with leave to the plaintiff to serve a supplemental complaint within thirty days on payment of costs. Opinion by

Macomber, J.;

Lewis, J., not sitting.


text:
    Charles Jones, Respondent, v. Orin S. Bacon, as Surviving Executor, etc., of James McKechnie, Deceased, Appellant.
   Judgment and order appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Lewis, J.


text:
    M. E. Bower and another, Respondents, v. Edwin B. Thomas, Appellant.
   Judgment of County Court of Cayuga county appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    John Rorbach, Appellant, v. Lloyd W. Crossett, Respondent.
   Judgment and order appealed from affirmed. Opinion by

Macomber, J.


text:
    Jacob Latz, Respondent, v. August Keiser and another, Appellants.
   Judgment and order appealed from affirmed. Opinion by

Lewis, J.


text:
    David A. McDonald and another, Plaintiffs, v. Albertus B. Johnson, Defendant, Impleaded, etc.
   Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiffs on the verdict. Opinion by

Macomber, J.


text:
    Elma Leonard, Respondent, v. Charles S. Birdsall, Appellant.
   Judgment and order appealed irom affirmed.


text:
    Florence A. Smith, Plaintiff, v. The City of Rochester, Defendant.
   Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit. Opinion by

Macomber, J.


text:
    William W. Mack and others, Appellants, v. Edward P. Snell, Respondent.
   Judgment appealed from affirmed.


text:
    Catherine Mehegan, Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from reversed and a new trial granted, with costs to Abide the event. Opinion by

Macomber, J.


text:
    John O’Day, Appellant, v. Byron Chaffee, Respondent.
   Judgment and order appealed from affirmed. Opinion by

Lewis, J.


text:
    Michael McNamara, Administrator, etc.. Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Dwight, P. J.


text:
    Isaiah C. Miller, Appellant, v. William H. Cobb and another, Respondents.
   Orders appealed from modified as indicated in the opinion, and, as so modified, affirmed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


author: Ma-comber, J.,

text:
    Saly J. Mayer and others, Respondents, v. The Rheuhottom & Teall Manufacturing Company, Appellant.
    (Before Lewis and Davy, JJ.)
   Order appealed from affirmed, with ten dollars costs ana disbursements, on opinion of

Ma-comber, J.,

at Special Term.

Dwight, P. J., and Macomber, J., not sitting.


text:
    John A. Van Ingen, Respondent, v. Conrad Herold, Appellant.
   Order appealed from reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Opinion by

Macomber, J.


text:
    Isaac Altman and another, Administrators, etc., Respondents, v. Gabriel Wile, as General Guardian of Eli Hofeller, Eli Hofeller and others, Appellants.
   Judgment appealed from reversed as to the appellant Eli Hofeller and a new trial granted, with costs to the appellant Eli Hofeller to abide the final award of costs; and as. to all the other appellants affirmed, with costs. Opinion by

Dwight, P. J.


text:
    [No. 1.]
    Alfred Bell, Appellant, v. John H. Howe, Respondent.
   Judgment appealed from affirmed, with costs. Opinion by

Lewis, J.


text:
    [No. 2.]
    John H. Howe, Respondent, v. Alfred Bell, Appellant.
   Judgment appealed from affirmed, with costs. Opinion by

Lewis, J.


text:
    In the Matter of the Judicial Settlement of the Accounts of Margaret S. Chamberlain, as Executrix of Julius A. Chamberlain, Deceased.
   Decree of the surrogate of Cayuga county appealed from affirmed, without costs of this appeal to either party. Opinion by

Macomber, J.


text:
    Tobias Koser, Appellant, v. August C. Sommer, Respondent.
   Judgment of County Court of Monroe county appealed from reversed, and the judgment of the justice of the peace affirmed, with costs in this court ana in the County Court. Opinion by

Dwight, P. J.


text:
    The Village of Waterloo and others, Respondents, v. The Seneca Electric Railway, Appellant.
   Interlocutory judgment appealed from affirmed, with costs, but with leave to the defendant to serve an answer within twenty days on payment of the costs of the demurrer and of this appeal.


text:
    James Crisfield, as Supervisor of the Town of North Dansville, Respondent, v. James Murdock, James W. Wadsworth and others, Respondents, John Hyland and George Hyland, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    William H. Ketchum, Appellant, v. Eugene E. Lewis, Respondent.
   Order appealed from reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Opinion by

Macomber, J.


author: Lewis, J

text:
    Catherine S. Seifert, Appellant, v. Richard Caverly, Respondent.
   Order of County Court of Erie county appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Lewis, J


text:
    Mary S. Huber, Appellant, v. John Bletzer, Respondent.
   Judgment and order appealed from affirmed. Opinion by

Macomber, J.


text:
    Mary Mahoney, as Administratrix, etc., of Daniel H. Mahoney, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event. Opinion by

Lewis, J.


text:
    Robert J. Waterman, Respondent, v. Addis E. Bowler, Appellant.
   Judgment appealed from affirmed. Opinion by

Dwight, P. J.


author: Lewis, J,

text:
    Thomas Pitts, Thomas Cranage, Sarah M. Pitts and Julia P. Cranage, Appellants, v. Philip W. Scribner, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Lewis, J,


text:
    Bridget McAvoy, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from, affirmed.


text:
    Romine O. Bush, Respondent, v. Humphrey Polks, Appellant.
   Judgment of the County Court of Cayuga county affirmed, with costs. Opinion by

Macomber, J.


text:
    Miriam E. Garter, Respondent, v. The New York Central and Hudson River Railroad Company.
   Judgment and order appealed from affirmed.


author: Ma-comber, J.

text:
    Charles F. Mellish, as Executor, etc., of Titus P. Butler, Deceased, Respondent, v. Thomas McMahon, Appellant.
   Jndgment appealed from affirmed, with costs. Opinion by

Ma-comber, J.


text:
    The Walter A. Wood Mowing and Reaping Machine Company, Appellant, v. Robert H. Pearson, Respondent.
   Judgment appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Dwight, P. J.


text:
    [No. 1.]
    Benjamin B. Conable, Respondent, v. Edgar K. Smith, Surviving Defendant, Appellant.
   Orders appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    [No. 2.]
    Benjamin B. Conable, Respondent, v. Matison Keeney, Appellant.
   Order appealed from affirmed, with costs. Opinion Per Curiam, left with

Macomber, J.


text:
    Charles W. Hughitt, Respondent, v. Frank M. Hayes, Appellant.
   Judgment appealed from affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. James Hughes, Appellant.
   Judgment of conviction appealed from affirmed. Opinion by

Lewis, J.


author: Lewis, J.; Childs, J.;

text:
    John F Gates, Assignee, as Assignee for the Benefit of Creditors, Appellant, v. The Citizens' National Bank of Perry, Respondent.
   Judgment appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Lewis, J.;

dissenting opinion by

Childs, J.;

Macomber, J., not sitting.

Order to be entered as of January 22, 1892.


text:
    Robert C. Titus, Respondent, v. John B. Manning, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application for the removal of Edward C. Hawks, as Trustee under the Will of Eli B. Smith, Deceased.
   Decree of surrogate of Erie county removing the appellant, as testamentary trustee under the lat.fi will of EliB. Smith, affirmed, with costs to be paid by the appellant personally.


text:
    Vito V. Campanello, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from affirmed.


author: Lewis,. J.

text:
    The People of the State of New York. Plaintiff, v. Frank H. Hull and others, Defendants.
   Judgment upon the submission is directed for the plaintiff that only one of the defendants is legally entitled to the office of, and to act as, supervisor for one ward in the city of Buffalo; that the defendant Frank H. Hull is entitled to the office of supervisor of the Fourth ward, and to the emoluments thereof, and that the defendant Thomas H. Munsell is entitled to the office of supervisor of the Third ward, and to the emoluments thereof. Opinion Per Curiam, left with

Lewis,. J.


text:
    Jennie L. Wheeler, by Guardian, Respondent, v. Henry T. Dunbar, Appellant.
   Judgment appealed from affirmed.


text:
    John D. Foley, Respondent, v. William E. Hughitt and another, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements of appeal.


text:
    George W. Bennett, Appellant, v. John Taylor, Respondent.
   Motion to dismiss appeal for non-service of papers granted, unless the appellant serve such papers within thirty days from date of this order.


text:
    Theresa Bauer, Administratrix, etc., Respondent, v. The City of Buffalo, Appellant.
   Motion to amend order of this court denied.


text:
    William H. Warner. as Assignee,etc., Respondent, v. Clarence H. Lake, Sheriff, etc., Appellant. —
   Motion to amend order of this court granted.


text:
    Hervey Sanford, Respondent, v. Isaac B. Moss, Appellant.
   Motion for reargument or for leave to appeal to the court of Appeals denied.


text:
    William M. English, Respondent, v. Henry S. Sill and James H. Lee and others. Appellants.
   Motion for reargument or for leave to appeal to Court of Appeals denied.


text:
    James E. Ketchum and others, Respondents, v. Elizabeth A. Herrington, Appellant.
   Motion for a reargument denied.


text:
    Betsey Whitman, as Administratrix, etc., v. Matthew F. Foley and others.
   Motion to dismiss appeal denied, without costs to either party.


text:
    County of Orleans, Respondent, v. Mary E. Winchester and another, Appellants.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    John Lindsay, Respondent, v. Lute S. Tausley, Appellant.
   Motion for reargument or for leave to appeal to Court of Appeals denied.


author: Van Brant. P. J.

text:
    In the Matter of James T. Swift, Deceased.
   Order affirmed. Opinion by

Van Brant. P. J.


author: Van Brunt, P. J.

text:
    Taendstiksfabrike Aktiebolaget Vulcan, Respondent, v. Elijah Myers and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Henry Steubing, Respondent, v. New York Elevated Railroad Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    In the Matter of Mary Morrell, Administratrix, etc.
   Order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Henry Rosellen, as Assignee, Respondent, v. Louis Herzog and another, Appellants.
   Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event. Opinions by

Van Brunt, P. J., O’Brien and Barrett, JJ.


author: O’Brien, J.

text:
    John Hope, etc., Appellant, v. William A. Brewer, Jr., and others, Executors, etc., Respondents.
   Judgment affirmed, with costs. Opinion, by

O’Brien, J.


text:
    First National Bank, Respondent, v. John Lindenmeyr, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

O’Brien, J.


text:
    John W. Cochrane and others, Executors, etc, Respondents, v. Sarah Ann French and others, Appellants.
   Judgment modified as directed in opinion, and, as modified, affirmed; the costs of the appeal to all parties to be paid out of the fund. Opinion by

O’Brien, J.


text:
    Marie T. Uppington, Respondent, v. Louis J. Pooler, Appellant.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    Sarah F. Elmer, Respondent, v. Mutual Benefit Life Association, Appellant.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    Roderick H. Smith, Respondent, v. Martin Anti-Fire Car Heater Company, Appellant.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


author: Barrett, J.

text:
    The People of the State of New York, Respondent, v. William N. Loew, Appellant.
   Judgment reversed and new trial granted. Opinion by

Barrett, J.


text:
    Philip A. Smyth and others, Respondents, v. Hugo S. Mack, Appellant.
   Judgment and order reversed and new trial ordered, costs to the appellant to abide the event. Opinion by

Barrett, J.


text:
    William McLean, Respondent, v. New York Press Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, P, J., and Barrett, J.

text:
    James Ferris, Respondent, v. Elizabeth W. Aldrich, Appellant.
   Judgment and order reversed and new trial granted, with costs to abide event. Opinions by

Van Brunt, P, J., and Barrett, J.


text:
    August Stelling, Respondent, v. Louis R. Grobowsky, Appellant.
   Exceptions overruled and judgment ordered in favor of the plaintiff upon the verdict, with costs. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York, Respondent, v. Frank McCormack, Appellant, Impleaded, etc.
   Judgment affirmed. Opinion oy

Van Brunt, P. J.


text:
    In the Matter of James Phalen, Deceased.
   Decree affirmed, with costs. Opinion by J

Van Brunt, P. J.


author: Barrett and O’Brien, JJ.; Van Brunt, P. J.

text:
    Henry Heywood and others, Respondents, v. William N. Thacher, as Assignee, etc., Appellant, Impleaded, etc.
   Order reversed and report modified as directed in opinion. The expenses of the accounting before the referee, and the costs of the motion to confirm the report, and the appellant’s costs and disbursements of this appeal to be paid by the receiver out of the sum m his hands after the payment of the plaintiff’s claims. Opinions by

Barrett and O’Brien, JJ.;

dissenting opinion by

Van Brunt, P. J.


text:
    William E. Smith, Respondent, v. Stephen Underhill, Appellant.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    In the Matter of John Henry Fricke, Deceased.
   Decree affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Barrett, J., and Van Brunt, P. J.

text:
    Edward S. Stokes, Respondent, v. John W. Mackey and others, Appellants.
   Judgment and order affirmed, with costs. Opinions by

Barrett, J., and Van Brunt, P. J.


text:
    Jennie E. Wood, Administratrix, etc., v. Robert M. Nesbitt.
   Motion granted, without costs. (Mem.)


author: Patterson and O’Brien, JJ.

text:
    Eugene Kelly v. Jay Gould and others.
   Exceptions sustained as to defendant Work and a new trial ordered, with costs to abide tbe event; as to the other defendants exceptions overruled and iudgment directed dismissing the complaint, with costs. Opinions by

Patterson and O’Brien, JJ.


author: Barrett, J

text:
    Margaret S. Maitland, Respondent, v Thomas S. Godwin and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barrett, J


text:
    In the Matter of Catherine R. Smyley and others.
   Order reversed and motion denied, but without, costs, because the point upon which the appeal is decided was not specifically raised, either before the referee or in the court below. Opinion by

Van Brunt, P. J.


author: Van Brunt, P. J.:

text:
    LORENZO GULI, Respondent, v. JOSEPH I. WEST, Appellant.

      Damages for breach of a contract of sale — how far the amount realized upon a resale of the land is a measure of value.

    Lorenzo Guli, the owner of certain premises in the city of Brooklyn, sold them at public auction to Joseph I. West, who executed a contract for the purchase thereof; no mention of existing monthly tenancies being made in the terms of sale. Upon the ground that there existed these tenancies West refused to carry out the purchase and the premises were subsequently resold subject to the tenancies.
    Id an action brought by Guli to recover the damages alleged to have resulted from West’s breach of contract Guli was allowed to recover the difference between, the price at which West agreed to buy and the price realized on the resale of the premises.

      Held, that this was improper.
    That the true measure of damages was the difference between the price agreed to be paid by West and the value of the property.

      Semble, that if the resale had been made upon the same terms as the original sale, it might, perhaps, have been some evidence of the real value of the premises.
    That West was entitled to have the jury charged by the court that, in order that the resale might be used by the jury in ascertaining the measure of damages, it must appear that it had been made under equally favorable circumstances with, the first sale.

      Appeal by the defendant Joseph I. West from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 3d day of February, 1892, upon a verdict for the plaintiff for $1,432, after a trial at the New York Circuit before the court and a jury ; and also from an order of said court dated January 29, 1892, denying a motion for a new trial.

      J. IT. Henshcm, for the appellant.

      D. Tim, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages for an alleged breach of contract for the purchase of real estate. The plaintiff, who was the owner of certain premises in the city of Brooklyn, sold the same at public auction in the city of New York to the defendant, who thereupon paid ten per cent on account of said sale and executed a contract for the purchase. The terms of sale were that the premises were sold subject to a certain mortgage thereon and also subject to an agreement relating to property on the east. At the time the title was to be closed the appellant refused to take the same, for the reason that the premises were actually occupied by tenants. It was admitted, upon the part of the plaintiff, that the premises were occupied by tenants, but it was claimed they were allowed to remain because the defendant had told him not to remove the tenants, but to keep them on the premises. On the 16th of July, 1890, the plaintiff resold the premises at auction, but upon different terms •of sale, the same being then sold subject to monthly tenants. At this sale the premises brought $1,300 less; whereupon this action was brought to recover damages in the amount of $2,000; and upon the trial, the foregoing facts being established, the jury rendered a verdict in favor of the plaintiff for $1,433.

TJpon what theory the jury arrived at this amount it is impossible to determine, but it is, perhaps, unnecessary to inquire in view of the conclusion we have come to in respect to the rights of the parties in the case. The action seems to have been brought and the case substantially tried upon the theory that the plaintiff was entitled to recover, as damages, the difference between the price at which the property sold when bought by the defendant and that which it brought at the resale. It is true that the court did charge to the jury the correct rule of damage, but the general tenor of the charge was as stated. We are not aware of any such rule of damage, unless there is a provision in the terms of sale (which is not the case here), authorizing such a proceeding for the purpose of determining the damage. The true measure of damage is the difference between the price agreed to be paid by West and the value of the property ; and the only evidence offered, upon the part of the plaintiff, to show the value of the property tended to show that the defendant had paid no more than its value at the time when he purchased, and, consequently, the plaintiff suffered no damage. It is true that on the resale the property was sold at % loss; and, perhaps, if the resale had been upon the same terms as the first sale it might have been some evidence to go to the jury as to what the real value was. But, clearly, it was not necessarily the measure of damages as it seems to have been claimed upon the trial below.

The court was requested to charge that, in order that the second sale might be used in ascertaining the measure of damage, it should have been made under equally favorable circumstances with the first sale. This the court declined to charge, leaving it with the jury to say how far the second sale and the price obtained at the second sale was evidence of the value of the property.

We think the defendant was entitled to the charge as requested. If the resale was to be resorted to at all it could only be because the conditions of the resale were the same. The jury could not be permitted to speculate, without any evidence to guide them, as to the effect which occupancy by tenants might have. But, apart from this, the sale to the defendant was without incumbrances, except such as have been mentioned. The property was occupied by monthly tenants. At the time of the closing, objection was made upon this ground. Not the slightest effort was made to remove the objection; but it is claimed that the tenants were allowed to remain because of some vague request upon the part of the defendant.

IJpon examination the plaintiff testified: “ I had a conversation with Mr. West in which he said that if the tenants were good he would like to have them remain. I don’t know whether the statements which he made on that subject were what prevented me from having the tenants move out. If Mr. West had-told me to send the tenants away I would do so, otherwise I would keep them with me.” Then follows the statement, “ I would have had the tenants move out but for that statement of Mr. West, that they were ready to go.”

It is, therefore, apparent that the plaintiff was actuated by no statement of Mr. West in respect to allowing the tenants to remain. It was because Mr. West did not require that the tenants should be moved out, in luis conversation with the plaintiff, that the latter concluded that they should be allowed to remain. A party cannot be held to the waiver of a condition of a contract because of loose talk of this character. There is no ground for an estoppel, as the plaintiff himself admitted that his action was not caused by any statement of the defendant in «reference to the tenants. It seems to be clear that the plaintiff was acting under a misapprehension, that he had an idea that he could resell the premises and compel the defendant to pay the difference and the expenses of the resale. In this he was clearly mistaken, as no such rule of damages obtains upon public sales unless there is some such provision in the terms of sale.

The proper course for the plaintiff to have pursued would have been, if the tenants were so ready to move out as he claims them to have been, to have procured the vacation of the premises "when the defendant refus'ed to take the deed upon that ground, and to have re-tendered the deed or brought his action for specific performance. But he seems to have assumed that the defendant was bound to take this title encumbered by the tenancies as it was, although the contract contained no such provision. It is a significant circumstance, as to the willingness of the tenants to move out, that upon the resale the premises were sold subject to the monthly tenancies.

It is clear that the action was commenced upon a wrong theory and was tried upon a wrong theory, and that an erroneous measure of damages was adopted by the jury.

The' judgment should be reversed and a new trial ordered with costs to appellant to abide event.

Patterson and O’Brien, JJ., concurred.

Judgment reversed and new trial ordered with costs to appellant to abide event.


text:
    WILLIAM H. THOMAS and Another, Respondents, v. HENRY A. DICKINSON and Another, Appellants.

      Complaint alleging fraud in the sale of goods — a note given therefor must he tendered.

    'Tlie complaint in an action alleged that the defendants had, by false representations, induced the plaintiffs to sell goods to them and demanded judgment for their value. The answer denied the false representations and alleged that the goods had been sold upon a credit which, at the time of the commencement of the action, had not expired.
    Upon the trial it appeared that the goods had been sold upon credit; that a note had been given for the purchase-price, which was not due; that this note had never been tendered to the defendants, and it did not appear who was the present holder thereof.

      Held, that the action must be held to be one in disaffirmance of the contract.
    That as it could not yet be determined whether or hot the note would be paid, and as the note was not tendered to the defendants the action could not be maintained.
    That the plaintiffs should have shown that they were the holders of the note, since otherwise the defendants might be held liable by the plaintiffs for fraud and by the holder of the note for its amount.
    That whether the action was for a rescission or for damages for fraud, if a note had been given, it should have heen restored.
    Appeal by tlie defendants Henry A. Dickinson and David I. Johnson, copartners, doing business under the firm name of H. A. Dickinson & Co., from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 27th day of February, 1892, upon a verdict for the plaintiffs for $1,846.53, after a trial at the New York Circuit before the court and a juryand also from an order of said court entered in said clerk’s office on the 16th day of February, 1892, denying defendant’s motion for a new trial made upon the grounds stated in section 999 of the Code of Civil Procedure.

      F. Bien, for the appellants.

      A. W. Otis, for the respondents.
   Van Brunt, P. J.:

The complaint alleges that the defendants, with intent to deceive and defraud the plaintiffs, by inducing the plaintiffs to sell goods to them, falsely and fraudulently represented to the plaintiffs that they were solvent, and that one of the defendants, Dickinson, was worth $50,000 and his wife was worth $200,000; that plaintiffs, relying upon said representations were thereby induced to sell and deliver to the defendants certain goods of the value of $1,696.82, and that the representations so made were false; that no part of the price of the goods had been paid, to the damage of the plaintiffs. $1,696.82, and for this amount judgment was demanded.

The answer denied the allegation of false representations and alleged that the goods mentioned in the complaint were purchased upon a credit which, at the time of the commencement of the action, had not expired; and upon the trial it appeared that the goods were sold in the ordinary course of business on a credit of four months, and that the plaintiffs had received in payment thereof a note, which note was not due at the time of the commencement of the-action and had not been tendered before or after suit brought, nor at the trial. A motion was made to dismiss the complaint upon this ground, which was denied and an exception taken. The other points raised in the case it is not necessary to consider.

Upon the part of the plaintiffs it is claimed that it was not necessary to return, or offer to return to the defendants at the trial, the promissory note mentioned in the testimony, because a person defrauded by another may resort to one of three remedies. First, he may, before suing, restore or offer to restore what he has received from the other party, elect to rescind the contract and sue at law for whatever he has parted with. Or he may, secondly, without restoring or offering to restore what he has received, sue in equity for a rescission, in which case he must allege in his complaint his willingness to restore, as a condition for being permitted to rescind; and must, in fact, restore or offer to restore before or at the trial. Or he may, in the third place, stand upon the contract, make no offer to rescind it and sue for the damages which he has suffered by the fraud of the other party' in inducing him to enter into the contract. And this latter remedy is that which the plaintiffs claim to have pursued. But the difficulty with the plaintiffs’ case is that until it is ascertained whether or not the note in question, which has been given in payment of the goods, will be paid, it cannot be ascertained as to whether the plaintiffs have or will suffer any damage by reason of the alleged false representations. And the further principle is lost sight of that the holder of the note is the only one who can enforce any liability against the defendants. If the plaintiffs have transferred the note and it is in the hands of a third person, they certainly have sustained no damage by reason of the false representations. If any cause of action exists, it is in favor of the holder of the note, and not the plaintiffs, unless they are such holders. And it is because of this principle that the rule has obtained that no matter what the action is, whether for a rescission of the contract or for damages because of the fraud of the other party in inducing them to enter into the contract, if a note has been given it must be returned, as the defendants are not required to j>ay damages for the fraud and pay the debt also.

If the*plaintiffs’ position is correct, then, in case the judgment in this action was satisfied, and, therefore, the goods paid for, and the note was held by a third party, the defendants could be compelled to pay over again, which shows the falsity of the position occupied by the plaintiffs. Their action, therefore, can only be considered as an action in disaffirmance of the contract and either to recover the purchase-price of the goods or damages for their conversion. It is conceded by the learned counsel for the respondents that in such a form of action the note should have been returned.

We think, therefore, that the ruling of the learned court below was erroneous, and that the plaintiffs could not maintain any action of the kind, which the case at bar is claimed to be, until it was ascertained whether the note in question would be paid or not; and, furthermore, it would be necessary for them to show that they were-the holders of the evidence of debt, otherwise the defendants would be under a liability to the plaintiffs for the fraud to the full extent of the debt and a liability to the holder of the note for the same amount.

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

O’Brien and Patterson, JJ., concurred.

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


author: Van Drunt, P. J.: Patterson, J.:

text:
    CUNIGUNDE LISTMAN, Respondent, v. JOHN HICKEY, Appellant.

      Specific performance — afire occurring after the contract is made, but before a deed was to be given, excuses the vendee.

    On December 5,1889, Jolm Hickey agreed, in writing, to sell certain land, together with personal property thereon, to Ounigunde Listman, the deed thereof to be delivered on January 3,1890. About January 1,1890, the premises were seriously damaged by fire. Listman, who refused to take title, for reasons which did not include any objection because of the fire, subsequently brought an action to recover the money paid by her at the time of the execution of the contract, on the trial of which evidence relative to the fire was admitted without objection.

      Meld, that she was entitled to recover.
    That it must be considered that Listman was entitled to the premises,'3inasmuch as they consisted of both real and personal property, in the condition in which they were when contracted to be sold, and that her refusal to receive them in a damaged condition was not a breach of her contract obligation.

      Semble, that the rule would have been otherwise had the contract related exclusively to real estate. (Per Patterson, J.)

      Semite, that an equitable action might have been brought by the defendant Hickey to enforce the contract, compensation being made to Listman for the damage occasioned by the fire.
    Appeal by the defendant -John Hickey from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 16th day of February, 1892, upon a verdict for the plaintiff for §1,355.90, and costs, after a trial at the New York Circuit before the court and a jury; also from an order ■of said' court, entered in said clerk’s office on the 16th day of February, 1892, denying a motion for a new trial.

      8. II. Stuart, for the appellant.

      8. D. Levy, for the respondent.
   Van Drunt, P. J.:

This action was brought to recover the amount which had been paid on an agreement to convey certain premises in the city of New York and the counsel fees and disbursements incurred by the plaintiff in the examination of the title of the premises.

Upon the trial it appeared that on the 5th of December, 1889, the plaintiff and defendant entered into an agreement in writing whereby the defendant agreed to sell to the plaintiff the premises in question, together with certain personal property therein. One thousand dollars was to be paid upon the execution of the contract, and the balance to be paid as provided in the agreement. The defendant agreed to execute and deliver the usual warranty deed on or before the 3d of January, 1890, upon receiving payment of the balance, and the plaintiff had the privilege of taking title on the 20th of December, 1889. On the 31st of December, or the 1st of January, 1890, the premises were damaged by fire and water to the amount of about two or three thousand dollars. On the 3d of January, 1890, the plaintiff refused to take the title, various objections being raised; nothing, however, was said about the fire. Thereupon the plaintiff brought this action alleging the agreement, and that the defendant on the 3d of Januáry, 1890, failed and neglected and refused to give to the plaintiff a deed conveying the-said premises pursuant to the agreement, and that the plaintiff then informed the defendant that she elected to rescind and annul the agreement, and demanded the repayment to her of the sum paid and her expenses. The answer admitted the agreement, denied the refusal to convey, and asked for damages by reason of the failure of the plaintiff to take the premises as agreed upon. Upon the trial evidence was admitted, without objection, showing the damages to the premises by fire and the loss of certain personal property upon the premises which was included in the agreement. The court thereupon directed a verdict in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that the objection in reference to the fire not having been raised as a ground for rejecting the title, it could not be availed of upon the trial. Under the pleadings, if the evidence in respect to the fire had been objected to, it may possibly be that it could not have been admitted. But this evidence, having been admitted without any objection as to its admissibility under the pleadings, such pleadings may upon this appeal be made to conform to the proof in order to support the judgment.

But it is further claimed that the happening of the fire afforded no ground for the refusal of the plaintiff to accept the deed, or for the rescission and annulment of the contract by her; and that the fact that a building contracted to be sold is damaged or even destroyed by fire between the time of the execution of the contract and the time fixed for the delivery of the deed is no defense to an action for the purchase-money, and, per contra, no ground for a rescission of the contract or the payment of the amount paid ujion the execution thereof.

Certain authorities are cited to support this proposition. But we fail to find that they bear out the contention. In fact, the case of Goldman v. Rosenberg (116 N. Y., 85) seems to establish the contrary proposition. And in the case of Smyth v. Sturges (108 N. Y., 502), as correctly stated by the court below, it was held that under a contract similar to the one at bar the defendant was entitled to the premises in the condition in which they were bargained for, and refusal to take them in an altered and inferior condition was not a breach of the contract.

It might very well be that an action in equity for the performance of the contract might have been maintained, compensation being made to the plaintiff for the damage to the premises and property in question. But no such relief was asked for upon the part of the defendant. He insisted that he had duly performed all the conditions in the agreement, and that the plaintiff had failed to comply with the conditions and terms of the contract upon her part, and damages were claimed by reason of the failure of the plaintiff to' take her title. Therefore the parties put themselves strictly upon their legal rights; and under such circumstances it is clear that the only judgment which could be granted was that which was directed by the court below.

The judgment and order should be affirmed, with costs.

O’Brien, J., concurred.

Patterson, J.:

I concur in the result for the reason that the contract contemplated the purchase and sale of both real and personal property. Had land and the buildings on it alone been the subject of the contract, a different conclusion might have been reached. As is said in Clinton v. Hope Insurance Company (45 N. Y., 465), “ the general rule is that the vendee in a contract for the sale of land is entitled to any benefits or improvements happening to the land after the date of the contract, and must bear any losses by fire or otherwise which occur without the fault of the vendor. (Dart on Vendors, 116; 1 Sugd. on Vendors, 468; Paine v. Meller, 6 Ves., 349.)” But where land and personal property are both the subject of the contract the agreement is entire, and the personal property being destroyed the vendor cannot perform; and as the vendee can. not get what he contracted for he is not liable for the price in an action at law, and is entitled to recover back what he paid.

Judgment and order affirmed, with costs.


author: O’Brien, J.:

text:
    MARY S. DOUGLAS, Respondent, v. FREDERICK H. SMITH, as Assignee for the Benefit of Creditors of BENJAMIN M. HARRIS, Appellant, Impleaded with Another Defendant.

      Reference — electing to end it — referee fees — a qualified delivery of a report insufficient — power by interlocutory judgment to direct payment of future referee's fees —■ Oode of Oivil Procedure, sec. 1019.
    In an action brought to compel an accounting by an assignee for the benefit of creditors, an interlocutory judgment directed a reference and a referee was appointed. It was also, among other things, ordered by the interlocutory judgment that the fees of the referee should be paid out of the fund, unless otherwise directed by the court or the referee. The referee’s report not having been filed within the sixty days prescribed by section 1019 of the Code of Civil Procedure, the assignee gave notice that he elected to end the reference.
    It appeared that before this notice was served the referee had delivered his report to the counsel for the opposite side “ on the assurance that the same should not be filed until the referee’s fees were paid.”

      Held, that a qualified delivery of the report was not enough; that the assignee had a right to end the reference and that the referee had lost his fees.

      Semble, that the court had no power to direct, by the interlocutory judgment, that a person, other than the one who was successful upon the reference, should be compelled to pay the referee’s fees and take up flip report.
    Appeal by the defendant Frederick H. Smith, as assignee for the benefit of creditors of Benjamin M. Harris, from an order of the Supreme Court, entered in the office of the clerk of of the city and county of New York on the 9th day of May, 1892 directing him to pay the fees of a referee.

      J. A. Shoudy, for the appellant.

      Pollin Ii. Lynde, for the respondent.
   O’Brien, J.:

This action was brought to compel an accounting on behalf of all creditors by Smith as assignee of Benjamin M. Harris, and for a distribution among the creditors and for the discharge of the assignee. By an interlocutory judgment a reference was ordered which directed the referee to pass upon the claims of creditors, and also directed “ that the fees and expenses of the said referee be charged ujion and paid out of the funds in the hands of Frederick H. Smith as such assignee, unless otherwise directed by the court or said referee.” It appears that the reference was closed February 16, 1892, that the referee’s fees had not been paid, and that the appellant had refused to take up the report. After the lapse of more than sixty days from the time of final submission, the appellant gave notice in pursuance of section 1019 of the Code that he elected to terminate the reference, which notice was served upon the attorney for the plaintiff and the other attorney who appeared before the referee. The report of the referee was not filed within the sixty days, and in respect to its disposition the affidavit of counsel for respondent shows that, at least a week before the notice was served to terminate the reference, the report was delivered to him “ on the assurance that the same should not be filed until the referee’s fees were paid.”

Section 1019 of the Code provides that the referee’s “ written report must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when the cause or matter is finally submitted; otherwise either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference. In such a case * * * the referee is not entitled to any fees.”

It will thus be seen that if neither party takes up the report, the referee must file it with the clerk within sixty days. It being conceded that it was not so filed, the question presented is as to whether the facts show that within the meaning of this section it was delivered to the attorney for one of the parties within the time so as to take away the right to terminate the reference.

We think that a compliance with this section demanded an unqualified delivery of the report, so that it should be as stated in Birdseye v. Goddard (17 Weekly Digest, 228), “subject to the control, use and disposition of the attorney wbo received it.” Here the report was delivered upon an assurance that it should not be filed until the referee’s fees were paid. Thus it will be seen that the delivery, if delivery it can' be called, was a qualified one, being merely intrusted to the custody of the counsel for the plaintiff upon the express condition that no use should be made of it until the fees were paid. We do not think that this was sufficient.

The suggestion that, notwithstanding the promise made not to file the report until the referee’s fees were paid, it was still left in the physical power of the attorney to file the report on the day it was delivered, does not help respondent’s contention, because it would be recognizing that what at best was but a qualified delivery could be converted into an absolute and unconditional delivery of the report, by sanctioning what would practically amount to a violation of a condition and a breach of trust. The report, therefore, not being either filed or delivered within sixty days, as provided by the Code, it was within the power of any of the parties, which was availed of by the appellant here, to terminate the reference.

The learned judge below was no doubt impressed with the same suggestion that has been urged upon us, that the provision of the interlocutory judgment which has been quoted above, requiring the assignee to pay the referee’s fees, was controlling, irrespective of whether the reference was terminated or not. To this two answers may be suggested: First, that if the reference has been terminated the referee is not entitled to fees; and, second, that the construction placed upon the terms of the interlocutory judgment by the respondent is not, in our opinion, the correct one. We think it exceedingly doubtful as to the power of the court to adjudge, except, perhaps, as a condition for a favor granted, that a party, other than the one succeeding upon a reference, should be compelled to pay the referee’s fees and take up the report. The judgment here does not, in terms nor by fair implication, require that in the first instance the assignee should pay out of the fund in his hands the referee’s fees; nor does it change the rule that upon the successful party paying the fees he shall be entitled, in addition to any other recovery, to a judgment for such fees. In other words, the interlocutory judgment here provides what in the absence of such provision the law would supply, namely, that the judgment to be entered upon the report of the referee on the accounting should, in addition to the other relief, provide for the payment by the assignee out of the funds in his hands, either to the referee in case he had filed the report, or to the one who had taken up the same and paid the fees, the amount thereof.

"We do not think, therefore, that the interlocutory judgment decreed that the assignee should, in the first instance, take up the report and pay the fees; nor do we think it at all clear that the court had any power in a summary manner, such as this upon a motion, to so compel the assignee. Without, however, directly passing upon this question, we think, for the reason first assigned, that the reference had terminated and the referee had thus lost his right to the fees, that the assignee could not be compelled to pay the same, and that the order to that extent was erroneous and should be reversed and motion denied, with ten dollars costs and disbursements.

Yan Brunt, P. L, concurred.

Order reversed and motion denied, with ten dollars costs and disbursements.


author: O’Brien, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CONSOLIDATED GAS COMPANY OF NEW YORK, Plaintiffs, v. THEODORE W. MYERS, Comptroller, and Others, Composing the Board of Revision and Correction of Assessment Lists of the City of New York, Defendants.

      Assessments — in the city of New Tork — review of the action of the Board of Revision and Correction.

    The proceedings of the Board of Revision and Correction of Assessment Lists of the City of New York cannot he reviewed hy writ of certiorari.

    A person aggrieved and seeking affirmative relief must proceed in accordance with the Consolidation Act. (§§ 897, 899 of chap. 410, Laws of 1883.)
    The rule hy which the right of recovery is to he enforced, where a payment is made under coercion, or where an assessment is illegal, stated.
    Certiorari issued upon the petition of the Consolidated Gas Company of New York to review the decision of Theodore W. Myers, Comptroller, William H. Clark, Counsel to the Corporation, and Frederick Smytli, Recorder, composing the Board of Revision and Correction of Assessments of the City of New York, upon the confirmation of an assessment laid upon the property of said company for paving Sixteenth street,' from Avenue C to the East River in said city.

      Henry H. Anderson, for the relator.
    ' George L. Sterling, for the respondents.
   O’Brien, J. :

In this proceeding the relator seeks to review the action of the Board of Revision and Correction of Assessment Lists in confirming the assessment for paving Sixteenth street, from Avenue 0 to the East river. In view of the conclusion at which we have arrived respecting the relator’s remedy, it is unnecessary to discuss the merits or review the facts as they appear upon the writ and the return.

We do not think, under the present condition of the law, that a writ of certiorari will lie to review the action of the Board of Revision and Correction of Assessment Lists. In the case of the Sixth Avenue Railroad Company v. The Mayor (63 Hun, 274), we had occasion to examine the law relating to the remedies that were provided for the relief of persons who felt themselves aggrieved by illegal assessments. It was therein held that section 897 of the Consolidation Act (chap. 410, Laws of 1882), was unqualified and applied to every case of assessments. (See, also, Mayer v. The Mayor, 101 N. Y., 284.) This section (897), provides: “ No suit or action in the nature of a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title, but owners of property shall be confined to their remedies in such cases to ‘the proceedings under this title.” Unless, therefore, the relator here can show that the remedy to which he resorted is one provided for by the act the court is without authority or power to grant relief. The relator would, seemingly, acquiesce in this view; because, while not referring us to any authority which would sanction a proceeding in this form to get rid of an assessment claimed to be illegal, he relies upon this very Consolidation Act alone (§§ 897-899), as authority for this proceeding. As we have seen, section 897 expressly confines the remedy. Section 898 provides a remedy by which a person aggrieved by an illegal assessment can take summary.proceedings in court for its removal or reduction; but this section does not sanction nor authorize this to be done upon a writ of certiorari. Section 899 prohibits the setting aside of assessments for certain irregularities and technicalities. We do not think, therefore, that a writ of cerUorcuri will lie, for reasons similar to those given in the Sixth Avenue Railroad case and which we have again attempted briefly to point out.

In addition to the remedy provided by section 898 of the Consolidation Act there are other remedies open to the relator. Should he pay the assessment under coercion, under the authority of Jex v. The Mayor (130 N. Y., 536), and other cases which recognize the principle laid down in that case, an action at law would seemingly lie to recover the money back. Or, as determined in the case of Lennon v. The Mayor (55 N. Y., 361), if the assessment is illegal he can refuse to pay it, and payment by the city could not be enforced.

As said in Sixth Avenue Railroad v. The Mayor (supra) : “ It seems to be a hardship that the plaintiff should be compelled to submit to a sale of its premises and of the creation of an apparent cloud upon its title, and to be obliged to assume the burden, if proceedings should be taken under the lease to oust it of its property, to show the invalidity or illegality .of the assessment. Such, however, seems to be the only course left ojaen to it.” (See Matter of Smith, 99 N. Y., 424-427; Chase v. Cheese, 95 id., 373; Matter of Brainerd, 51 Hun, 380, 384; Lennon v. The Mayor, 55 N. Y., 361; Astor v. The Mayor, 62 id., 580.) These, and the recent decision of this court in the Sixth Avenue Railroad case, are authorities for the proposition that all remedies for affirmative relief, except as laid down in the sections of the Consolidation Act, have been taken away.

Having called attention that no provision can therein be found which would justify or authorize a writ of certiorari to review the action of the Board of Revision and Correction of Assessment Lists, we are of opinion that the writ must be dismissed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Patterson, J., concurred.

Writ dismissed, with ten dollars costs and disbursements.


author: Patterson, J.:

text:
    BERNARD BEER, Plaintiff, v. LIONEL SIMPSON, Defendant.

      Statute of limitations — pleaded in an action on a foreign judgment — the lex fori controls.

    Tire plea of the statute of limitations, interposed in an action founded upon a judgment of the court of another State, goes to the remedy only, and the lex fori governs all questions presented thereby.
    Submission of a controversy, without action, between Bernard Beer, as plaintiff, and Lionel Simpson, as defendant.

      Goff c& Pollock, for the plaintiff.

      M. Newburg, for the defendant.
   Patterson, J.:

The question arising on this record is presented for determination on an agreed statement submitted under section 1279 of the Code of Civil Procedure. It appears that on the 22d day of December? 1883, one Pohalsld recovered a judgment against the defendant in the District Court of Colorado, for the county of Arapahoe, that being a court of record, for the sum of $1,761.20, on which judgment execution was issued within one year from the entry thereof, which execution was returned unsatisfied. The judgment was subsequently assigned to the plaintiff. The defendant is now and for upwards of seven years last past has been a resident and citizen of the State of New York, but when he became such or whether he was such at the date of the entry of the judgment is not stated, nor does it appear that the plaintiff is a resident of this State. The question submitted for decision is: Does the statute of limitations of the State of Colorado prevent a recovery in an action on the judgment in this State ? By statutes of Colorado enacted in the year 1891, it is provided, concerning the limitation of time within which actions may be brought in the courts of that State, as follows, viz.:

Section 2900. The following actions shall be commenced within six years next after the cause of action shall accrue, and not after-wards. First. All actions of debt founded upon any contract or liability in action. Second. All actions founded upon judgments rendered in any court not being a court of record. Third. All actions for arrears of rent. Fourth. All actions of assumpsit or on the case founded on any contract or liability express or implied. Fifth. All actions for waste and trespass upon land. Sixth. All actions of replevin and all other actions for taking, detaining or injuring goods and chattels. Seventh. All actions on the case except for slanderous words and for libels.” It is further provided by section 2529 of the said statutes, in substance, that all the goods, chattels and real estate of any person against whom a judgment shall be obtained in any court of record, either at law or in equity, for any debt, damages or costs shall be liable to be sold on execution, and the judgment shall be a lien on real estate for seven years from the last day of the term of the court in which the judgment is rendered; provided, however, that execution be issued within a year after the entry of the judgment, “and after the said seven years the same shall cease to be a lien on any real estate as against bona fide purchasers or subsequent incumbrancers by mortgage, judgment or otherwise.” There is printed in the record a provision of an act of 1883 which limits the duration of the judgment-lien to six years, but that was changed to seven .years by the act of 1891, It is also provided by the laws of the State of Colorado that a judgment recovered in a civil action may be revived by filing a petition in which shall be alleged the time the judgment was recovered, that it remains unsatisfied in whole or in part, and stating the amount the judgment should be revived for and verifying it as complaints in actions are verified. Upon filing such a petition an order to show cause is issued, upon the return of which the defendant may appear and answer as in an action, “ and the court shall try and determine any issue so formed the same as any issues made by pleadings are required to be tried and decided and hear any evidence necessary to decide the matter.” It is further provided that if the court decide to revive the judgment, an order to that effect shall be made and attached to the original files in the cause; an entry thereof made in the judgment-docket and book, “ and if the petition is filed before the liens created by the original judgment have expired and the transcript of the entry is filed, etc., all rights under such judgment shall continue and execution may issue on such revived judgment the same as on the original judgment.”

It is set forth in the agreed statement that no further or other laws of Colorado have been found bearing on the question submitted, and no judicial decisions of the tribunals of that State have been cited or referred to.

It is claimed by the defendant that, under the provisions of the laws of Colorado above referred to, “ the judgment is dead, barred and non-enforcible ” and cannot form the basis of an action either in that jurisdiction or this. That an action, as distinguished from the proceeding for revival by scire facias, would not lie upon it 'in Colorado is plain, and results from the first clause of section 2900 above quoted. Although judgments of courts of record are not mentioned in terms, yet actions of debt are barred in six years. In these statutes the several kinds of actions coming within their operation are referred to by their common-law designation, and under common law pleading debt was the appropriate form of action on a judgment (Andrews v. Montgomery, 19 Johns., 165; citing 1 Chitty, 94, etc.), the cause of action being one arising on a record. The effect of the six years’ bar is not, however, that contended for by the defendant. Although an action cannot be maintained on the judgment after six years, yet the lien by express provision continues one year longer and the judgment may be revived, not necessarily within six or seven years, but if within the longer period, certain rights are preserved to the judgment-creditor. It is not true, therefore, that at the end of six years the judgment is a nullity and all rights under it terminated, but the duration of the lien is not important in this case, as the legislation extending the term from six to ten years was after the expiration of the lien of this judgment.

But it is urged by the defendant that whatever pleas would be good in an action on the judgment, if brought in Colorado, would be equally available to defeat an action on it brought here; but, as was held in McElmoyle v. Cohen (13 Peters, 312), the plea of the statute of limitations to an action founded upon a judgment of another State goes to the remedy only and the lex fori prevails, and such is the settled law of this State. In Miller v. Brenham (68 N. Y., 83), suit was brought on a California judgment. The five years’ bar of the statute of limitations of that State was set up as a. defense. The court said: “ It is well settled in this State that a plea of the statute of limitations of the State or country where the contract is made is no bar to a suit brought in a foreign tribunal, and the lex fori governs all questions arising under that statute. (Lincoln v. Battelle, 6 Wend., 475; Ruggles v. Keeler, 3 Johns., 263; Power v. Hathaway, 43 Barb., 214; Toulandou v. Lachenmeyer, 37 How., 145.) As is said in Scudder v. Union National Bank (1 Otto, 406): Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.” It is true that in these New York cases the actions were brought against non-residents, and that, so far as concerns that class of defendants, the rule is now changed by positive legislation. By section 390, Oode of Civil Procedure, it is provided that where a cause of action, not involving title to or possession of realty within this State, accrues against a person then not a resident, an action thereon cannot be maintained against him or his poersonal representatives after the expiration of the time limited by the laws of his residence, except by a resident of the State, and in a case where the cause of action originally accrued in favor of a resident or where, before the time so limited, the person in whose favor the cause of action accrued was or became a resident or assigned the cause of action to a resident who continuously thereafter owned the same.

This provision of the Code does not alter the general rule. It merely relates to actions against non-residents upon claims barred by the law of the States in which they reside, and has no application here. It does not appear in the agreed statement that the conditions, as to residence of either of the parties or of the plaintiff’s assignor, are or were such as to bring the case within section 390 of the Code of Civil Procedure, and we are not at liberty to draw any inferences of fact whatever. (Fearing, etc., v. Irwin, 55 N. Y., 486.)

The plaintiff is entitled to judgment for $1,761.20 and interest, from December 22, 1883, and costs to be taxed.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment for plaintiff for $1,761.20, with interest, from December 22, 1883, and costs to be taxed.


author: Patterson, J.: Van Brunt, P. J.:

text:
    AUGUSTUS P. DUDLEY, Appellant, v. THE CONGREGATION OF THE THIRD ORDER OF ST. FRANCIS, Respondent.

      Mortgage — given by a benevolent corporation without permission of the court — no recovery permitted upon the bond — cancellation improper where ¿he defect is apparent — Ammo/1848, chap. 819; Laws of 1854, chap. 50.
    In an action brought to foreclose a mortgage which, with a bond tq which it was collateral, was given by a benevolent corporation, organized under chapter 819 of the Laws of 1848, no proof was made that the corporation had obtained permission, under chapter 50 of the Laws of 1854, to execute the mortgage.

      Meld, that the mortgage was void, there being, apart from such permission, no power in such a corporation to make a mortgage.
    That such an action being equitable in its nature, the plaintiff could not recover upon the bond as in a common-law action on covenant.
    That the cases holding that where a complaint is broad enough to entitle the plaintiff to either legal or equitable relief, and where the demand for judgment is appropriate to either, the plaintiff failing to obtain equitable relief may have his remedy at law, were not analogous to the case at bar.
    'That it was erroneous for the court to order the cancellation of a mortgage which had been executed by a corporation not having the power to make it, inasmuch as its invalidity must appear upon any attempt being made to prove the authority of the corporation to give it.
    Appeal by tbe plaintiff Augustus P. Dudley from a judgment •of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 23d day of May, 1892, declaring the mortgage described in the complaint to be void, and dismissing the ■complaint after a trial by the court at the New York Special Term.

      William II. Shepard, for the appellant.

      Peter B. Olney, for the respondent.
   Patterson, J.:

This action was brought to foreclose a mortgage executed and delivered by the defendant to the plaintiff as collateral to a bond to secure the sum of $2,000. The defendant is a benevolent corporation organized under chapter 319 of the Laws of 1848. There was contained in the mortgage a clause permitting the mortgagor, on default in payment of interest as and when it became due, to elect to consider the whole amount of the principal as due; and upon a failure to pay an installment of interest the election was made and this suit instituted. On the trial it was not shown that permission had been obtained by the mortgagor from the Supreme Court to make this mortgage, but it appeared that it was given without such permission, and no order had been applied for or made providing for the application of the money arising from the mortgage. The justice presiding at the Special Term held that the mortgage was void because of the failure to procure an order of the Supreme Court, and he directed judgment that the complaint be dismissed; that the mortgage be canceled of record as a cloud on the title (that relief having been asked by the defendant in its answer); and he refused to render judgment against the defendant for the amount of the bond; the plaintiff having claimed that, although the relief prayed for, viz., the foreclosure of the mortgage, could not be granted, he was entitled,, nevertheless, to recover on the bond precisely as if the action had been based upon that instrument alone. These several rulings of the-court below are now brought up for review upon the appeal from the judgment entered on the findings made upon the trial.

The learned judge was right in holding that the mortgage was void. It was executed and delivered without any lawful authority and could not(constitute a valid lien upon the mortgaged premises. The only power a charitable or benevolent corporation has to mortgage its property is derived from chapter 50 of the Laws of 1854, which conferred upon societies of that character such power, and that was done in the following words: “ It shall be lawful for the Supreme Court of this State, upon the application of any benevolent, charitable, scientific or missionary society, incorporated by law, in case it shall deem it proper, to make an order for the mortgaging of any real estate belonging to said corporation, and to direct the application of the moneys arising therefrom by the said corporation to such uses as the same corporation, with the consent and approbation of the said court, shall conceive to be most for the interest of the society to which the real estate so mortgaged belongs.”

It is in consequence of this enabling act, which extends the powers of corporations of this character, with respect to their real estate, that mortgages can be made; and that being so, it would necessarily follow that any attempt on the part of such a corporation, without the consent of the court, to place a lien by way of mortgage upon its real estate would be utterly ineffectual to create a valid incumbrance. The power is one qualified by the direct terms of the-statute, and its exercise is conditioned altogether upon permission to be obtained from the Supreme Court. Not only was there no-authority existing previous to the passage of that act, but it was-expressly interdicted to corporations of this class to exercise any powers other than those contained in chapter 319 of the Laws of 1848, which authorizes their creation, or in the general corporation act as it existed when the statute of 1848 was passed. By section 2 of the act of 1848 provision is made as to certain powers conferred thereby on corporations organized for benevolent, charitable, scientific or missionary purposes. But what is there granted is not altogether the full measure of their powers. Section 9 of that act provides that each corporation formed thereunder shall possess the general powers conferred by, and be subject to the provisions and restrictions of, the third title of the eighteenth chapter of the third part of the Revised Statutes. The reference to the third part of the Revised Statutes is evidently an error, which we find was cured by an act passed April 1, 1849, which makes the correction, namely: “ The third title of the eighteenth chapter of the first part of the Revised Statutes.” That title third defines the general powers, privileges and liabilities of corporations. In its first section it sets-f ort-li the general powers — the power to mortgage is not enumerated among them. By section third it is provided: “In addition to the-powers enumerated in the first section of this title, and to those expressly given in its charter or in the act under which it is or shall be incorporated, no corporation shall jiossess or exercise any corporate powers except such as shall be necessary to the exercise of the powers so enumerated and given.” Nothing contained in the act of 1848 gives the power to mortgage. The learned judge who presided at the trial was, therefore, right in holding that the mortgage to foreclose which this action was brought never had a valid existence and did not constitute a lien; and the complaint in that regard was properly dismissed.

The refusal to allow judgment on the complaint, as in a common-law action in covenant, was also right. The suit was brought exclusively as one for the foreclosure of a mortgage. Such a suit is one in equity, and the statute provides what may be done and what judgment may be rendered therein. An action upon the bond could not be maintained without leave of the court, while a suit to foreclose was pending. The remedy in foreclosure is distinctly against the land itself and the whole scope of the action is to enfore the lien upon the land, to subject it to the payment of the mortgage, to realize out of the sale of the mortgaged premises the amount of the lien, and provision is made for a personal judgment for deficiency against the mortgagor or whoever may be liable upon the bond. It is in its nature and essence simply a suit to realize upon the collateral security, and the only office of the allegations of the complaint in foreclosure, respecting the bond and the amount due under it, is to show that the principal debt for which the mortgage is collateral has accrued and is due and that the plaintiff is entitled to enforce his security. The language of Mr. Justice Barrett, in the opinion of the General Term of this court in Loeb v. Willis (22 Hun, 509), is quite appropriate. There judgment of foreclosure and sale had been entered. The plaintiff procured an order vacating the judgment and allowing an amendment by the introduction of an additional party. A prior mortgage was upon the property, and before any further proceedings were taken in plaintiff’s suit that prior mortgage was foreclosed, the mortgaged premises sold and only sufficient was realized to pay the first mortgage and costs. A motion was made by the plaintiff to vacate the order setting aside the judgment and for a direction that a judgment for deficiency be entered against the defendant for the full amount due on the second mortgage and the bond. That was tantamount to asking judgment in that foreclosure suit for the full amount of the bond and as in an action upon the bond, and the court said : “ The defendant is doubtless still liable upon his bond. That liability may well be the full amount of such bond and interest. But in reaching that result the forms of law cannot be disregarded and the plaintiff must resort to the appropriate action to enforce that liability. In the present form of action (a foreclosure suit), he could not, for instance, join a count upon the bond and seek an independent judgment m personam; nor during the pendency of the foreclosure proceedings could he even bring a separate action upon the bond, without leave of the court. It is quite clear that while his pleadings and proceedings remain unchanged he cannot, upon a mere suggestion that his foreclosure as such has become futile, be permitted to enter what, though styled a deficiency judgment, is in reality equivalent to and, in substance, nothing more nor less-than a direct judgment in personam upon the bond.”

The contention of the plaintiff that, because he has failed to establish his equitable cause of action, he is entitled to a legal remedy, for the reason that he has set forth an indebtedness upon the bond which would be sufficient to maintain a recovery at law, has no support whatever in any of the authoritative decisions of the courts of this State. The distinction between equitable and legal causes of action, and the remedies appropriate to them, still exists. (Graham v. Read, 57 N. Y., 681; Stevens v. Mayor, 84 id., 296; Gould v. Cayuga Bank, 86 id., 83.) And no recovery can be had at law where the whole scope and purpose of the action is limited to equitable relief. (Heywood v. Buffalo, 14 N. Y., 540; Bradley v. Aldrich, 40 id., 504; Mann v. Fairchild, 2 Keyes, 111; Peters v. Delaplaine, 49 N. Y., 362.)

This rule is not affected by other cases which hold that where a complaint is broad enough in its averments to entitle the plaintiff to either equitable relief or a legal remedy, and where the demand for judgment is appropriate to an action which presents all the facts in the double aspect of a suit in equity of an action at law, failing one, relief as to the other may be granted. Such cases are: Sternberger v. McGovern (56 N. Y., 12); Seeley v. New York National Exchange Bank (8 Daly, 402; affirmed, 78 N. Y., 608); Cogswell v. New York, New Haven and H. Railroad Company (105 id., 319). In the case at bar nothing was sought but a foreclosure, and the prayer is made in the amended complaint for a sale, the bringing of the money arising from the sale into court, the jiayment of the amount of the bond out of the proceeds and for a judgment for deficiency, if any should exist, against the mortgagor. No judgment on the bond on the failure to establish the right to foreclose the mortgage could be allowed in such a case.

But with respect to the provisions of the decree in regard to the cancellation of the mortgage, we think the learned judge inadvertently fell into error. The defendant was asking for affirmative relief and certainly was not entitled to any more than would have been awarded to it had a bill been filed to remove a cloud on title. In such an action, if it appears to the court that the instrument or incumbrance claimed to be a cloud is void upon its face, no relief will be granted.

The general rule is well summed up by Ruger, Ch. J., in Moores v. Townshend (102 N. Y., 393), where it is said: “ When the invalidity of the disputed title appears upon the face of the conveyance, or in any proof which the claimant is required to produce in order to maintain an action to establish it, no suit whatever can be maintained in equity to set it aside because it is said that a title obviously void does not constitute even a cloud on the title of the true owner.” And the principle applies here. In order to enforce this mortgage lien, it would be necessary to show that the mortgage was authorized by the Supreme Court, it appearing upon the face of the mortgage that it was one made by a corporation having no-power to deliver such instruments without the antecedent permission of the court contained in an order of the court, and which necessarily would be entered in the records of the court.

With the particular importance of this provision of the decree in the present action we are not concerned, but, as we conceive it to be an improper provision, it should be stricken out. With this modification the decree must be affirmed, without costs.

O’Brien, J., concurred.

Van Brunt, P. J.:

The case of Arnold v. Angel (62 N. Y., 508) also illustrates the rule stated in within opinion. I concur.

Judgment modified as directed in opinion, and as modified affirmed, Without costs.