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

text:
    Lewis H. Sayre, Administrator, &c., of Charles Henry Hall, deceased, v. The New York and Harlem Railroad Co.
    In December, 1840, C. H. Hall agreed to convey to the defendants, the Hew York and Harlem Bailroad Co., ten lots of ground-at Harlem, and the defendants agreed to erect thereon a railroad depót, the erection of which would have greatly enhanced the value of a tavern and adjacent grounds, opposite the site of the proposed depot, which then belonged to H. In the same month of December the Sheriff of the City and County of Hew York sold the real estate of II. at Harlem under an execution, and in April, 1842, conveyed the same, including the ten lots above mentioned and the tavern and adjacent -grounds, to one J. A,, who, in 184-1, conveyed the said lots, on which no depót had been erected, to the defendants. H., however, by the indulgence of J. A., remained in possession of the tavern, etc., and received the rents and profits until his death in ’52; and this action was brought to recover the damages which it was alleged that he had sustained from the defendants’ breach of their agreement to erect a depót. The Beferee, by whom the cause was tried, made a report in favor of the plaintiff. The defendants appealed from the judgment upon this report.

      Held, that the agreement was made by H. as owner of the fee, and that his conveyance as such of the ten lots to the defendants, was a condition precedent to their obligation to erect a depot.

      Held, that when H. ceased to be the owner of the fee by the conveyance from the sheriff to J. A., the agreement between him and the defendants, from his incapacity to perform it, was wholly dissolved.

      Held, that the loss of the benefits that might have resulted to the tavern, etc., had the depót been built, was, in judgment of law, a loss to J. A. as owner of the fee, and not to H., who was in possession by the mere indulgence of J. A.

      Held, that as there was no contract which the defendants had broken, and no legal « right of H. which they had violated, his claim and that of his administrator for damages was necessarily groundless.
    Judgment reversed, and complaint dismissed.
    (Before Oakley, Ch. J., Boswobih and Slosson, J.J.)
    Jan. 28 ;
    Feb. 11, 1854.
    Appeal from a judgment at special term, founded on the report of a Referee, in favor of the plaintiff, for $1,666 60, with costs.
    The action was originally brought, and the complaint filed, in the name of Charles Henry Hall, deceased, and in consequence of his death was revived and continued in the name of the present plaintiff, as his administrator.
    The material allegations in the complaint are that the plaintiff, Hall, in and before the year 1847, was the owner of a, considerable landed estate in the Twelfth Ward of the City of Hew York, and extending from 129th to 135th street. That in January, 1832, for a nominal consideration, he conveyed to the defendants a part of these lands, particularly described in the complaint, for the sole purpose of enabling the defendants to construct a railroad thereon. That the defendants in 1839 did construct a railroad on the land so granted, and have ever since used and occupied the same as a railroad.
    That on said railroad a great number ^of persons pass and repass daily, to and from the city of Hew York, and said village of Harlem, and that in consequence thereof, the terminus or stopping:place for the cars conveying passengers to and from Harlem, would necessarily become a place of notoriety, and particularly .valuable for tavern purposes and purposes of recreation and pleasure; that shortly aftersthe incorporation of the said company, the plaintiff filled in and levelled, at his own expense, all that part of the Fourth Avenue which lay within his own estate, and extending from 129th street to Harlem river, at a cost of thirty thousand dollars and upwards, and also erected and built a large and commodious hotel on the said Avenue, between 132d and 133d streets, near the terminus of the said railroad, and laid out and planted an extensive pleasure-garden adjoining the same, at an outlay, in the whole, of more than twenty-four thousand dollars; and the defendants, having laid down the rails on the road so filled and levelled by the plaintiff, as aforesaid, placed a turn-table -opposite the said hotel, which thus became the terminus of their said road; whereby, great numbers of the citizens of Hew York, and others, were enabled to resort to, and did resort with their families to said hotel and garden, for recreation and pleasure, to the great profit of the plaintiff, who was thereby enabled to let the same for a rent sufficient to pay him a reasonable interest upon the large amount of money so invested by him thereon as aforesaid.
    That in the year 1840 the said defendants began to grade and prepare a track or line of their said railroad on the said Fourth Avenue, between 129th and 135th streets, diverging from the line theretofore established, as heretofore stated, and passing over the land of the plaintiff, on said Avenue, not granted to them in said deed, and extending beyond the twenty-four feet mentioned in said deed, and also extending the said track beyond the south line of 135th street, on land of said plaintiff not granted to them by said deed.
    That the plaintiff, being greatly injured and damnified by these proceedings of the defendants, filed his bill of complaint against them in the late Court of Chancery of this state, before the Vice-Chancellor of the first circuit, praying that the said defendants might be restrained from making or constructing their said diverging line or track of their railroad on or over the land of the plaintiff, and from preparing to make such track by any interference with the land of the plaintiff', and obtained an injunction from his honor the Vice-Chancellor of the first circuit, according to the prayer of the said bill, on the 13th of November, 1840.
    That thereupon the defendants, pretending to be desirous to settle with the plaintiff, and make him full compensation for the damages he had sustained by reason of their aforesaid proceeding, the whole matter was referred to J. Warren Tompkins and W. Paxton Hallett, Esqs., who, having heard the statement of the plaintiff, drew up the preliminaries of an agreement between the plaintiff and the said defendants, in the words and figures following, that is to say :—

      “ Prelirm/ficvries. It is agreed between Charles Henry Hall and the New York and Harlem Railroad Company, that he will give the right of way to the Company over the land of Mr. Hall on the Fourth Avenue, as the rails are now laid down, connecting same with the bridge, for which the Company will give to Mr. Hall one thousand dollars in cash: he to withdraw his suit and injunction forthwith.
    “ 2. Mr. Hall will give a deed of ten lots to the Company, as originally agreed on: the Company to give their bond to Mr. Hall for two thousand four hundred dollars, at three years, for the bulkhead, as agreed upon.
    “ 3. The Company to make a depot upon the ten lots so conveyed to the Company.
    “ 4. A permanent free passage to Mr. Hall on the road.

      “ 5. The injunction to be suspended on the Company agreeing to these terms'.
    “ The above terms are agreed to, provided the Harlem Company will ratify the same.

    CHABLES HENRY HATE.
    Which report was approved by Samuel R. Brooks, the then President of said Company.
    That at a meeting of the Directors of the said Hew York and Harlem Railroad Company, the defendants hereto, held on the 30th day of December, 1840, the following resolutions were passed, namely:

      “ Whereas Charles Henry Hall, Esq., having proposed to submit all matters of difference between him and the Hew York and Harlem Railroad Company to referees, and having named as such J. Warren Tompkins and William Paxton Hallett, who, having heard the statement of Mr. Hall, finally agreed upon the following terms of adjustment, viz.:
    “ 1. Charles Henry Hail will give the right of way to the Company on the Fourth Avenue, as the rails are now laid down, connecting the same with the bridge, for which the Company will pay to Mr. Hall one thousand dollars in cash, Mr. Hall to withdraw his injunction forthwith.
    “ 2. Mr. Hall will give a deed of ten lots to the Company, as originally agreed upon, between the Fourth .Avenue and Harlem river, and 133d and 134th streets. The Company to give their bonds to Mr. Hall for two thousand four hundred dollars, payable in three years from this date.
    “ 3. The Company to make a depot on the ten lots so conveyed to the Company.
    “ 4. A permanent free passage to Mr. Hall on the road.
    “ 5: The injunction to be suspended on the Company agreeing to these terms.
    “ It was, on motion of Mr. Fisk, seconded by Mr. Erben—
    “ Resolved, That the Company agree to the foregoing terms, and hereby authorize the President to carry the same into effect.
    “ Hew Yoke, December 30th, 1840.”
    That the plaintiff, in performance of his part of said agreement, did, by his certain deed, dated on the said 30th day of December, 1840, convey unto the said defendants a block or parcel of land, situate; lying, and being at Harlem, in the Twelfth Ward of the city of Hew York, particularly described in the complaint; the said block of land, comprising ten city lots of land, more or less, for the purpose and use on which to erect a permanent depdt for the accommodation of steam-engines, cars, and general purposes of the said Railroad Company, in compliance with a certain contract made between the aforesaid parties, under date of 30th of December, 1840. That the defendants did also, in part performance of the said agreement on their part, pay to the plaintiff the said sum of one thousand dollars for the right of way on the plaintiff’s land, in the said Fourth Avenue; and they also gave their bonds to the order of the plaintiff for two thousand four hundred dollars, in payment for the ten lots of land so conveyed to them by him, as aforesaid.
    That notwithstanding the said agreement entered into between the plaintiff and the said defendants, and notwithstanding the plaintiff has conveyed to them the said ten lots of ground for the express purpose of erecting the depdt thereon, and stopping their cars there, yet they did not erect the said depdt, nor stop their cars there, as they were bound to do by said agreement, and ought to have done, but, on the contrary, took up their turn-table established on the other side of the river, and thus broke up and lost to the plaintiff the advantage of the same.
    That the plaintiff, being unwilling to take legal proceedings against the said defendants to compel a specific performance of said agreement with him, although he was daily suffering great pecuniary loss, and his property was depreciating in value, continued to urge them, in a friendly way, to fulfil their said agreement with him, which they repeatedly promised to do, but never did. That at length, on the-day of June, 1847, a final arrangement was made between the plaintiff and said defendants, whereby it was, amongst other things, agreed that the defendants, the said Hew York and Harlem Railroad Company, should purchase the aforesaid block, bounded by the Fourth Avenue and the river, and 133d street and 134th street, for the sum of $2,400, payable in their bonds, which part of said agreement had been performed, as herein before set forth; that they should present to the plaintiff a free ticket on the railroad for his life, and that they would immediately erect on the said block of land a depdt for their railroad ears, in which was to be placed a turn-table, and the cars were to run into the said building for the accommodation of the public.
    That, nevertheless, the defendants have refused, and still refuse tq build a depdt on the said ten lots, so conveyed to them by the plaintiff for that purpose, as aforesaid, or to grant to the plaintiff a free ticket on their said railroad for life, or to place a turn-table on the said ten lots, or to run three cars, or any car or cars, to and from the same, for the accommodation of the public, as by their said agreement they were bound to do, and ought to have done: but, on the contrary, run their cars past the said lots, and through Harlem to Westchester, without stopping at Harlem at all, excepting occasionally to put down and take up passengers.
    That, by the before-mentioned acts and doings of the said defendants, the plaintiff has suffered great loss and damage in this, namely, that the said tavern and hotel has been deserted by the public, and the tenants of the plaintiff have been deprived of the great gain and profit they used to make by entertaining the companies who used to resort, and otherwise would or might resort thither for recreation and refreshments; whereby, instead of being able to pay the plaintiff one thousand dollars a year, and upwards, for the rent of the same, they have been forced to quit the same, and the plaintiff cannot let the same for more than five hundred dollars a year. And instead of the plaintiff having a free passage in the cars of the defendants, he is frequently applied to by their agents to pay, and is sometimes obliged to pay the same fare for riding in the said cars as strangers do.
    The complaint then demands a judgment for damages to the amount of $50,000, and that the defendants should be compelled to perform specifically their agreement with the plaintiff by the erection of a suitable depot on the ten lots conveyed to them.
    The defendants in their answer, int&r alia, admit the passage by their board of directors of the resolutions set forth in the complaint, and aver that the sum of $1,000 mentioned therein was paid to the plaintiff in satisfaction for the land occupied by them for connecting their railroad with the bridge. They aver that the residue of the resolutions and agreement was never performed by the plaintiff. That he became- embarrassed, and that the whole of his real estate (including the ten lots referred to in the resolutions, and the tavern mentioned in the complaint) was sold at sheriff’s sale and purchased by various persons, whereby the agreement between them and the plaintiff had become wholly inoperative and was entirely abandoned. They deny that the plaintiff made to them in December, 1840, a conveyance of the ten lots as alleged in the complaint, and aver that if such a conveyance was ever made by him, it was never accepted by the company. They also deny that any such final arrangement or agreement was made by them in June, 1847, as the complaint alleges.
    There was a reply to this answer, the contents of which it is deemed unnecessary to state, except that it contains an admission that the real estate of Hall, at Harlem, had been sold by the sheriff, and subsequently conveyed by him to one Isaac Adriance; avers that Adriance held the same as a trustee for the plaintiff, and denies that the agreement between him and the defendants was ever abandoned, or was at all affected by the sheriff’s sale and conveyance. Charles H. Hall died in January, 1852; in Hay, 1852, the cause was referred to Hurray Hoffman, Esq., as sole referee.
    Upon the trial before him it was proved that all, or nearly all, the real estate of Hall, at Harlem, including the ten lots upon which the defendants were to erect a dep6t, and the tavern mentioned in the complaint, was sold by the sheriff under an execution issued upon a judgment in favor of the Heehanics’ Bank against Hall for $4,611 40, and the sale having become absolute, was conveyed by the sheriff to Isaac Adriance, to whom the certificates given to the purchaser upon the sale had been, for a valuable consideration, duly assigned. That Adriance, subsequently, by a deed dated 28th of May, 1846, recorded April 13,1847, for the consideration of $2,400, conveyed to the defendants the block of ten lots referred to in the original agreement between Hall and the defendants.
    It was also proved that Charles H. Hall, by a deed dated 9th November, 1839, and acknowledged and recorded on the 13th of the same month, had conveyed the same ten lots to Daniel P. Hall in fee. D=. P. Hall, however, deposed that this conveyance had been made to him for a nominal consideration, and for the sole purpose of enabling him to raise money thereon to pay off certain judgments against C. H. Hall; and that being unable to raise such money he afterwards, by a deed dated the 1st of May, 1840, conveyed the premises, at the request of O. H. Hall, to his son Charles M. Hall, who had since died intestate.
    There was no evidence that Adriance had purchased or held the property conveyed to him by the sheriff in trust for C. H. Hall, but it was proved that the latter continued in possession of the tavern by his tenants until his death, and that as landlord, he would have received for it a much higher rent than that actually paid to him had the defendants erected the contemplated depdt upon the ten lots conveyed to them.
    In May, 1853, the referee made the following report:
    In pursuance of an order of this Court, dated the 24th day of May, 1852, I, the subscriber, the Referee named therein to hear and determine the action, do report, determine, and adjudge as follows:
    That the' following facts, material and pertinent to the issue, have been established by the evidence laid before me, and I accordingly find the same.
    That the agreement set forth in the complaint, and called therein “Preliminaries,” and purporting to be signed by William P. Hallett, J. W. Tompkins, and Charles Henry Hall, with the endorsement of Samuel R. Brooke thereon, was duly executed' by such several parties, and further was confirmed by the Board of Directors of the New York and Harlem Railroad Company, on the 30th day of December, 1840.

      That such confirmation was contained in the resolutions of the said Company, also set out in the complaint, and duly proven before me.
    That no conveyance was made of the ten lots of land mentioned in such instruments as to be conveyed, and lying on the east side of the Fourth Avenue, on which a depot was to be built, until the 13th day of April, 1847, when a deed of such lots was delivered to the defendants, executed by Charles Henry Hall, dated the 30th day of December, 1840, and acknowledged on the 8th of April, 1847; and another deed of the same property was delivered to them by Isaac Adriance and wife, dated the 25th day of Hay, 1846, and acknowledged on the 8th day of June, 1846,.both which deeds were recorded on the said 13th of April, 1847.
    That in each of such deeds, after the description of the premises, is contained a clause in the words or. to the effect and purport following, to wit: For the purposes and use on which to erect a permanent depdt for the accommodation of steam-engines, cars, and general purposes of a railroad company, in compliance with the contract made between the parties, under date of the 30th day of December, 1840.
    That various deeds and documents. have been produced before me, in order to show that the title to the property called the Tavern Stand, on the western side of the Fourth Avenue, was at no time after the said 30th December, 1840, down to the death of the said Charles Henry Hall, vested in him, but was either in David P. Hall or in Isaac Adriance, during such period. That I have not examined or concluded upon the effect of such deeds and documents, because of the facts and conclusions thereupon next stated.
    I find that the said Charles Henry Hall did continue in possession of such tavern stand and premises, and was in such possession, and was exercising acts of ownership in relation to the same, on and after the said 13th of April, 1847. In particular, I find that the said Charles Henry Hall did, on the 11th day of Harch, 1848, enter into a written agreement, dated that day, with one Thomas T. Jackson, to lease to him the aforesaid tavern stand and premises, for a period of three years, from the first day of Hay ensuing, at a certain rent therein specified, and that the said Charles Henry Hall did adjust and receive a portion of the rent so reserved, and all the rent which was paid thereunder prior to his death.
    That as matter of law, I have concluded that the said Charles Henry Hall was entitled, on the supposition that he was tenant at will merely of the said Isaac Adriance, or any other person, to all the rents which might accrue during the continuance of the said tenancy, or permission of possession; and I find that such tenancy at will, if his title was such and no more, was not terminated during his life.
    I also find that the said Charles Henry Hall filed his complaint in the present action on the first day of May, 1850 ; that he died on or about the eighth day of January, 1852; and that the said action was shortly after revived by the plaintiff, as his administrator.
    I also report, as a conclusion of law, that the measure of damages for the neglect to fulfil the contract before stated, is the loss of the additional rent which would have been received for the tavern stand, had it been complied with, and that, in this case, such damages may be assessed down to the time of trial; and I have assessed and allowed the same accordingly.
    And I report, adjudge, and determine that the plaintiff is entitled to recover ;• and I adjudge that he do recover from the defendants the sum of sixteen hundred and sixty-six dollars and sixty cents.
    All which is respectfully submitted.
    Murray Hoffman-, Referee.

    Hew York, May 10,1853.
    Upon this report judgment was entered for the plaintiff for $2089 95 damages and costs.

      C. W. Sandford, for the defendants,
    moved for the reversal of the judgment, and the dismissal of the complaint, upon the following points.
    1. The complaint should have been dismissed for the reasons set forth upon the motion.
    H. The evidence shows that Hall never performed the agreement of the 30th December, 1840, and could not perform the same for -want of title. 1. The property was sold by the sheriff on the 21st December, 1840, and was conveyed to Adriance 22d April, 1842. 2. The property was sold by Adriance to the defendants 13th April, 1847.
    HI. The referee erred in awarding damages to Hall’s administrator for a breach of a contract which Hall never performed on his part, and which he never could perform.
    IV. Ho damages were sustained by Hall; if any were sustained, they were sustained by Adriance and Benson,- who owned the tavern property.
    V. Judgment should be entered for defendants, upon the report of the referee. . •

      Jas. R. Whiting, for the plaintiff,
    in contending for the affirmance of th§ judgment, relied upon the following points and authorities.
    I. The contract of the company with Hr. Hall is not a covenant. It is a parol agreement founded upon an adequate consideration. Its validity is not questioned by the defendants.
    H. The plaintiff seeks under the pleadings,. damages for the non-performance of that part of the agreement which requires the defendants to build a depdt on the ten lots conveyed to them.
    HI. It is not necessary that Hr. Hall should have had any estate in fee in the lands to be benefited by the agreement. It is enough that he had the possession.
    IV. But he had the title, and was in the actual possession, at the time of the making of the agreement, as well of the ten lots conveyed, as of the tavern and garden.
    V. The sale by the sheriff did not divest him of the title; he had the right of redemption, under the statute, for one whole year; and the right of other creditors to redeem from the purchaser, existed for three months after that (4 R. S. old ed., p. 370, § 43 ; 2 R. S. 4th ed., p. 618, § 52).
    VI. The defendants cannot set up such a legal and involuntary transfer of title, as an excuse for the non-performance of their agreement; especially as the purchaser under the sheriff’s sale, never took or claimed possession under the sale.
    Vil. The allegation of the answer is, that the sheriff sold, not that he conveyed, the lands; and there is no allegation that the plaintiff ever lost his title, or right of redemption.
    VEIL If the reply is resorted to, as evidence of a conveyance, then the whole reply must be taken together as one admission ; and by it, it appears that the redemption by Adriance was in trust for Mr. Hall.
    IX: The fact of Hall’s continuance in possession down to the expiration of Jackson’s lease in 1851, and to the day of his death, is very clearly proved.
    X. The company, by the reception of Hall’s deed, are estopped from denying his title ; and if they were not, Adriance’s deed, on the face of it, declares it to be given in compliance with Hall’s contract, and recognises and admits it to be in force, and puts an end to the idea of its being abandoned (Doe dem. Knight v. Lady Smythe, 4 M. & S. 347; Doe dem. Britton v. Mills, 2 B. & Adolph. 17; Doe v. Magem, 3 Mov. & Rob. 56 ; Veal v. Warner, 1 Wm.’s Saunders, 325 ; Packard v. Sears, 6 Ad. & Ellis, 475, pr. Lord Denman).
    XI. Hall did not agree to make them a perfect title to the ten lots. He only agreed to give a deed therefor; and the giving of his own deed was a perfect compliance with the terms of the agreement (Gazley v. Price, 16 Johns. R. 267).
    XII. The conveyance of the ten lots was not the consideration of the contract for the depót. The contract would bind the company, whether Hall owned those lots or not. The real consideration of the agreement was the conveyance of the land and right of way on the 4th Avenue, and the diverging line on Hall’s land. The benefit that Hall was to derive from the agreement, was to arise from the depdt.
    XIII. If Hall liad but a mere naked possession claiming title to the tavern and garden, and had an imperfect title, and no possession of the lots on which the depot was to be built, and gave his deed for the land; it would be a compliance with his contract.
    XTV". The breach of the agreement occurred by the defendant’s neglect to establish a depót on those lots within a reasonable time after the making of the agreement. The giving the deed was not a condition precedent to the making a depót on those lots. (Perdage v. Cole, 1 Wm.’s Saunders, 320 ; Peters v. Opie, 2 J. C. 352.) Covenants are dependent, when two concurrent acts are to be done. The intention of the parties, whether the acts are to be concurrent or not, is to be the criterion; not technicalities. (1 T. R. 645. S. P. McCreelish v. Churchman, 4 Reade 26, 35; 4 Cow. 4, 10; Barnes v. Madan, 2 Johns. 145.) Rules for ascertaining the intent. (1 Wm.’s Saund. 319, Note C.) The intention of the parties is to be discovered rather from the order of time in which the acts are to be done, than from the structure of the instrument, or the arrangement of the covenants. (Goodwin v. Linn & Butts, 4 Wash. C. C. R. 714; Slocum & Hogan v. Despard, 8 Wend. 615, 619; Spaake v. Shepherd, 6 H. & J. 81, 85; Hopkins v. Young, 11 Mass. 302.) If part of the consideration has been accepted and enjoyed, and the plaintiff has no other remedy than on the agreement, and his defect be compensable in damages, plaintiff may recover, without alleging performance of the residue. (Lewis v. Weldon, 3 Randolph, 71, 81; Muldrow v. McClelland, 1 Little, 1, 3; Tompkins v. Elliot, 5 Wend. 496.) If part of the consideration have been executed, at the time the contract is made, the covenants .which form the residue are independent. (Stevens v. Curlins, 3 Bin. N. C. R. 355; Franklin v. Miller, 4 Ad. & Ellis, 599.)
    XV. The words “ so conveyed” in the agreement, are words of designation only, as to the place where the depót should be established.
    XVI. The struggle by Hall was, to prevent their removing the turn-table and depot across the river; and to prevent this, the injunction was obtained. And when the Company promised to put a depót on those lots opposite, he withdrew his opposition to the road. The situation of the parties and the subject of the controversy, are to be taken into consideration in construing the agreement.
    XVH. The time when the depót was to be placed there, was the essence of the contract; and we are entitled to all the damages allowed by the report (De Wint v. Wiltse, 9 Wend, 325; Sedgwick on Damages, 103, 110; Knox v. Plummer, 4 Peters’ R. 182; Davis v. Allen, Anthon’s N. P. Cases, 94; Hambleton v. Veere, 2 Saunders, 109; Bodsall v. Stillebras, 11 Ad. & Ellis, 301; Trig v. Northcot, Little’s Select Cases, 414; Robinson v. Bland, 2 Burr. 1087; Fish v. Falley, 6 Hill. 54).
    XVJLLI. Adriance could not maintain any action upon this agreement. It in no wise likens itself to a covenant. If it did, it would not run with the land, so as to pass to the purchaser (Spencer’s Case, 5 Coke, 17, to be found in 1 Smith’s Leading Cases and Notes, 92; Thursby v. Plant, 1 Wms. Saund. 240, 21 Wend. 120).
    It is purely personal. It would have been available to a mere tenant of the tavern, if founded on any consideration, however small. The lowest light, also, in which Hall can be regarded, viz. as Adriance’s tenant at will, entitled him to recover rent until interfered with (Hayward v. Sedgley, 2 Shep. 439; Little v. Palistier, 2 Greenl. 6).
   By the Court. Oakley, Ch. J.

We are all of opinion that the motion made before the Referee, for the dismissal of the complaint, ought to have been granted. The evidence wholly failed to sustain the allegations, which the plaintiff was bound to prove.

In order to sustain the allegations in the complaint, it was necessary to prove that the agreement made in December, 1840, between Hall and the defendants remained in force, that it was fully performed by him, and that he sustained damage from the neglect or refusal to perform on the part of the defendants. The proof, however, showed that the agreement, through the default of Hall himself, became inoperative and void: that it was never performed by him, and that no damages were, or could have been sustained by him from its alleged violation.

He made the agreement as owner of the fee. It was only while he remained such owner that he was capable of executing it, and there is no pretence for saying, that during the continuance of his ownership, there was any breach of the agreement on the part of the defendants, that could entitle him to maintain an action. The defendants were certainly not bound to erect a depdt until the lots upon which it was to be erected were, in fact, conveyed to them, and the evidence conclusively shows that no such conveyance was received by them, until that made by Adriance, in 1849. Many years, however, before this time, Hall had ceased to be the owner. The conveyance by the sheriff to Adriance in April, 1842, extinguished ■ his title, and by a necessary consequence, annulled the. agreement between him and the defendants. As from that time, if not before, he was incapable of executing the agreement on his part, he could have no right to claim its execution by the Company. His performance was a condition precedent to their liability, and from April, 1842, until his death, he was unable to perform. The agreement between him and the defendants was just as effectually dissolved by the conveyance made by the sheriff to Adriance, as it would have been, had the conveyance been made by himself.

The clause in the conveyance from Adriance to the Company, which was somewhat relied on in the argument before us, is not a covenant, but a mere declaration of the use or purpose to which the lots, thus conveyed, were meant to be applied. We cannot regard it either as a revival of the agreement of 1840, or as a confession that this agreement was still subsisting ; and were it possible for us to give it this construction, the unanswerable objections still remain, that the agreement was not performed by Hall, and consequently that there was no consideration proceeding from him that could create an obligation to him on the part of the Company, and that no damages which the law can notice were, or could have been sustained by him from the refusal or neglect of the Company to perform. He had no estate or interest whatever, legal or equitable, in the 'tavern and other property, the value of which is alleged to have been injuriously affected by the failure of the defendants to erect the contemplated depot. The loss of the benefit that .might have resulted to this property, had the depdt been built, was in judgment of law a loss to Adriance as the owner of the fee; and the possibility or probability that Hall, through the indulgence of Adriance, would'have shared in this benefit, is plainly no foundation for an action. If there was no contract between Hall and the defendants which they have broken, no legal right of his which they have violated, the claim for damages sustained by him must be groundless. Whether Adriance himself would be entitled to any relief against the Company, is a question which we are not required to consider, and in relation to which we are not to be understood as intimating an opinion.

Even could this action be maintained, the referee certainly erred in allowing damages for the period that had elapsed between the death of Hall and the time of trial; but, instead of granting a new trial upon this ground, we think ourselves bound, holding as we do, that upon the evidence the action is not"maintainable at all, not merely to reverse the judgment, but to dismiss the complaint.'

Judgment on report reversed, and complaint dismissed with costs.


source: Caselaw Access Project

author: By the Court. Bosworth, J.

license: Public Domain

text:
    Kennedy, Respondent, v. The New York and Harlem Railroad Company.
    The court very reluctantly interferes with the verdict of a jury or the finding of a referee on questions of fact. But when the finding of a referee on a question of fact is made on the testimony of a single witness, and that testimony is, in its material parte, so suspicious in its nature, and so highly improbable in its details, as to produce a strong conviction that injustice has probably been done, the court, in furtherance of justice, will set aside the report, and allow a second trial on such terms as it deems just with reference to the peculiar facts and circumstances of the case.
    (Before Oakley, 0. J., Bosworth and Slosson, J.J.)
    Jan. 26;
    Feb. 11, 1854.
    This case came before the court upon an appeal by the defendant from a judgment entered on the report of a referee. The action was brought to recover the value of the contents of a trunk, put by the plaintiff on board of defendant’s cars, about the 15th of April, 1852. The action was tried on the 22d and 29th of January, 1853. The only witness who testified particularly as to the contents of the trunk was. James G-. Kennedy, a brother of the plaintiff. During his examination on the 22d of January, he testified that he helped pack the trunk, or stood by and saw it done ; and three or four days after the loss of it he made a written list of the articles in the trunk, but had forgotten to bring it with him, but he could testify to the articles from recollection. The hearing was then adjourned to the 29th of January, on which day he produced the said list, and which was as follows:—

      List of a/rtioles of clothmg lost by the ET. T. and JEL. Et. JR. Comgoam/, belonging to flahvbiff.

    4 pair of pants, (2 pr. at $5, and 2 pr. at $3,) . $16 00
    1 black satin vest, . 5 00
    5 shirts at $1, . 5 00
    1 frock-coat at $18, . 18 00
    1 do. at $15,. 15 00
    2 pair socks, 25c. pair, 0 50
    1 satin apron and rosette, 2 50
    1 neckerchief, .... 1 50
    1 silk pocket handkerchief, 0 75
    1 hat and clothes brushes, 1 00
    1 razor, glass, and pair steelyards, 2 00
    3 pair of suspenders, 1 00
    1 pair of shoes, 2 00
    1 cap, ..... 1 00
    1 chest,..... ■ 2 50
    1 trowel, : 0 44
    $7419
    On his cross-examination, he farther testified thus : I wrote this paper three or four days after the loss, and I did not write it after this suit was commenced. I never showed this paper to any one till last night; I kept it in my trunk; I never showed it to the lawyer for the plaintiff. My brother calculated the things, but I never showed this paper to any one ; but after the judgment in the Superior Court, my brother showed me his list, the bill of particulars, and that time I never showed any list to my brother, nor to his lawyer; I showed it to my foreman, and I showed it to my boss, and I did not show it .to any one else.
    The judgment in the Superior Court, referred to by the witness, was a judgment that had been taken in this action by default.
    The plaintiff’s bill of particulars, in this action, was put in evidence, and was as follows.

      List of articles of clothing, die., m the int'wnk or chest belonging to plaintiff, and lost by the defendants.

    4 pair pants, 2 pair at $5, and 2 pair at $3, . $16 00
    1 black satin vest, at $5,...... 5 00
    5 shirts, at $1,...... 5 00
    1 frock-coat, at $18, . . . ... 18 00
    1 do. at $15,.....15 00
    2 pair socks, at 25 cents,..... 50
    1 satin apron and rosette, .... 2 50
    1 neckerchief,......." 1 50
    1 silk pocket handkerchief, .... 75
    1 hat brush,....... 50
    1 clothes brush,...... 50
    1 razor and glass,......1 00
    1 pair steelyards,......1 00
    3 pair suspenders,...... 1 00
    1 pair shoes,....... 2 00
    1 cap,........100
    1 small trowel,...... 37J
    1 chest,........ 2 50
    ->$74 12J
    The referee found, as matters of fact, that the trunk contained clothing and apparel of the value of seventy dollars, and that the trunk was worth $2. He reported in favor of the plaintiff, the sum of $72, on which report judgment was entered. The defendant appealed from the finding that the trunk contained articles of the value of $72, on the ground that the evidence was nót only insufficient to justify the report, but was entirely unworthy of credit.

      C. W. Sandford, for Appellant.

      F. A. Paddock, for Respondent.
   By the Court. Bosworth, J.

The court reluctantly interferes with the verdict of a jury, or the finding of a referee, on questions of fact. They have better opportunities to come to a correct conclusion, as they hear and see the witnesses, than a court, which judges only from a report of the testimony, which cannot always be so taken as to make the same impressions upon those who read it, as upon .those who heard it;

There are some things connected with the testimony of James G-. Kennedy, which may be susceptible of a; satisfactory explanation, but which unexplained, of uncorroborated, are calculated to excite great distrust as to its accuracy. His testimony was given on the 29th of January, 1853. He presented a statement of the articles said to be in the trunk at the time it was lost. He testified that this statement was in his own handwriting, that he made it three or four days after the loss, which occurred on the 13th of April, 1852, that he never showed the paper to any one, until the evening of the 28th of1January, 1853. He never showed it to the plaintiff, or' to his attorney. He says he made out the list, because he knew of the loss of baggage in England, and that they did not pay without suits. This, in the form in which he testifies he wrote it, is entitled: “ Lawrence Kennedy v. Hew Yobk and Harlem Rail Road Company.—’List of articles of clothing lost by the H. Y. and H. R. R. Company, belonging to the plaintiff.” Then follows an enumeration of the articles lost, with his estimate of the value of each. It enumerates every article contained in the bill of particulars furnished by the plaintiff, and no other. Every article, separately valued, is valued in both at the same price, except a trowel, which is 44 cents in one, and 37J in the other. In the statement of the witness, in one or two instances, two or more small articles are estimated in the aggregate, while in the bill of particulars tbey aPe estimated separately; but in such cases, his estimate of the aggregate value exactly corresponds with the aggregate of the several estimated values in the bill of particulars. The coincidence is extraordinary. Why the precaution of making such a list was exercised, and the list was preserved, without his showing it to the plaintiff or his attorney, or without his alluding, in his conversation with them, to the fact of his having made it, cannot be understood without explanations. If the testimony of this witness is rejected, the other testimony would not be sufficient to justify the report of the referee, tinder such circumstances, we think another trial should be allowed to the parties, and that the. trial should be by a jury. An order will be entered reversing the judgment, and setting aside the report of the referee. But the granting of a new trial must be upon the condition that the defendant pay the costs of the reference and of the subsequent proceedings. : If these terms be not accepted, the judgment must be affirmed with costs.