author: Eabl, J.,

text:
    Mary Price et al., Respondents, v. Septimus Brown et al., Appellants.
    A person cannot acquire title to land, which is uninclosed,unoccupied and unimproved, by taking a deed thereof from one not the owner and then going upon the land and asserting his ownership, or making occasional entries upon the land for grass or sand.
    (Submitted February 6, 1886;
    decided March 2, 1886.)
    The nature of this action, and the material facts are stated in the opinion, which is given in full:

      “ This action was brought to recover damages for a trespass alleged to have been committed by the defendants upon land. The plaintiffs claimed title to the land, and the defendants claimed that the land was owned by Louisa A. Carll, and justified their acts under her.
    “ In order to maintain their action it was incumbent upon the plaintiffs either to prove a good paper title to the land or the possession thereof which was wrongfully invaded by the defendants.
    “ The land was a piece of inclosed sandy beach upon Long Island Sound, and the title thereof seems to have been in dispute for many years. The plaintiffs attempted to prove their paper title as follows: A deed from Platt Scidmore to his children Hannah A. Scidmore and Brewster P. Scidmore, dated September 17, 1818, conveying a piece of land described as follows : 1 Piece or parcel of salt or sedge meadow lying and being in Crab meadow, bounded on the west by the beach or sound; on the east by the meadow of Joel Scidmore; on the south and west by the creek, containing six acresdeed from Brewster Scidmore and Abigail his wife, to Henry Keteham, dated April 21, 1835, conveying the.same land by the same description; deed from Henry Keteham and his wife, formerly Hannah A. Scidmore, to Lewis Keteham dated May 31, 1852, conveying the same piece of land by the same description except that it is bounded north instead of west by ‘the beach or sound will of Lewis Keteham dated May 7, 1870, in which he devised to John E. Hudson land as follows : ‘A piece of meadow lying at Crab meadow which I bought of Henry Keteham containing six acres, bounded on the east by the meadow of the late Joel Scidmore, on the south and west by the creek and on the north by the beach or soundwill of John E. Hudson dated November 17, 1880, in which he devised land to the plaintiffs as follows : ‘ The tract of meadow and sand situated at Crab meadow and devised to me by the last will and testament of Lewis Keteham, deceased.’ There is no certainty that the land described in these deeds and wills is the same land described in the complaint as follows : ‘Northby Long Island Sound, east by land of Scidmore or Ann M. Parrot, the eastern boundary being a straight line from the sound to the creek, on the south and south and west by Crab meadow creek.’ It does not appear that Platt Scidmore had any title to the land or that he held any conveyance thereof, or that he or Brewster P. Scidmore ever possessed the same, or performed any acts of ownership thereon, or exercised any dominion whatever over the same; and it does not appear that this barren sand beach was in the actual possession of any of the grantors named in the deeds put in evidence by the plaintiffs at the times of the execution of such deeds, or that it was in the possession of the persons who executed the wills at the times of the execution of such wills or the deaths of the devisors. The plaintiffs’ paper title therefore utterly fails, and it remains only to be inquired whether upon the evidence they had such a title founded upon possession as enabled them to maintain this action against the defendants.
    “ Henry Ketcham received his deed of the land in 1835 and executed the deed to Lewis Ketcham in 1852, and during all that long period all he is proved to have done upon the land was to dry some grass thereon a number of times which he had cut upon the Crab meadow. Lewis Ketcham, who took his deed in 1852, and died more than twenty years thereafter, performed about the same acts upon the land. Some of the grass dried upon the beach by Lewis and Henry Ketcham may have been cut upon the beach, about a half acre of poor grass being cut each year for several years, and the whole process of cutting and drying talcing but a short time in each year. Subsequently Hudson and the plaintiffs took and sold some sand from the beach on several occasions. From time to time the Ketchams, Hudson and the plaintiffs asserted their title to the lands, which, however, was disputed.
    “ I have now given all the acts of dominion and ownership which the plaintiffs and those under whom they hold exercised over the land. They never inclosed, cultivated or improved the land in any way, and never had, so far as appears, the actual possession of the place where the alleged trespass was committed. A person cannot acquire title to an uninclosed, unoccupied, unimproved parcel of land by taking a deed thereof from one not the owner, and then merely going upon the land and there asserting his ownership; nor can he acquire the title by taking such a deed and then making an occasional foray ■upon the land for grass or sand, and thus committing trespass against the real owner. (Miller v. L. I. 12. 12. Go., 71 N. Y. 380.)
    “We think the defendants gave evidence of their title full as significant as that given by the plaintiffs of their title. As to their paper title it was as follows: Deed from Zopher Scidmore to Nathaniel Seidmore, dated August 30, 1815, conveying land described as follows: ‘ On the south by Augustine Fleete’s meadow, on the east by the highway that leads to the landing; on the north by the sound, and to run west as far as to include all my right between the east boundary line and Crab meadow gut or inlet.’ It does not appear that the grantor owned the land described or that he ever possessed the same. The grantee died intestate December 28, 1847, and his heirs, by a deed dated February 1, 1869, conveyed the same land to Louisa A. Carll, under, whom the defendants justified. Nathaniel Seidmore claimed to own the beach, and exercised various acts of ownership thereon. He collected and sold paving stones therefrom, cut wood and pastured his cattle thereon, and took, removed and gave permission to others to take seaweed therefrom; and once he sued a person for cutting wood thereon. It does not appear that after his death his heirs did any thing upon the beach prior to their conveyance to Mrs. Oarll. All this evidence failed to show any title or possession in Mrs. Oarll which would enable her to sue any one for trespass upon this beach.
    “We are, therefore, of opinion that the plaintiffs should have been nonsuited and that the judgment should be reversed and new trial granted, costs to abide event.”

      Thomas Young for appellants.

      JY. 8. AokerVy for respondents.
   Eabl, J.,

reads for reversal and new trial.

All concur.

Judgment reversed.


source: Caselaw Access Project

author: Per Owriam

license: Public Domain

text:
    Stephen F. Dowling, Appellant, v. Joab L. Clift, Survivor, etc., Respondent.
    (Argued February 8, 1886;
    decided March 2, 1886.)
    Affirmed on opinion below, and on the ground that as the principal question presented was one of fact, this court was concluded by the determination thereof, by the referee, affirmed by the General Term.

      F. A. Lyma/n for appellant.

      William G. Tracy for respondent.
   Per Owriam

opinion for affirmance.

All concur, except Ruger, Ch. J., not voting.

Judgment affirmed.


author: Per Gwriam

text:
    John A. Husson, Respondent, v. William G. Oppenheim, Appellant.
    (Argued February 9, 1886;
    decided March 2, 1886.)
    This action was upon a contract. The questions presented here were simply as to the construction of the contract and the sufficiency of the evidence to sustain the findings of the trial court.

      Marh Cohn for appellant.

      Moore <& Moore for respondent.
   Per Gwriam

opinion for affirmance.

All concur.

Judgment affirmed.


text:
    Myra E. Favor. Respondent, v. Anthony W. Dimock et al., Appellants.
    (Argued February 9, 1886;
    decided March 2, 1886.)

      George Putmam Smith for appellants.

      Harry Wilber for respondent.
   Agree to affirm on opinion below.

All concur.

Judgment affirmed.


text:
    Charles Rothschild et al., Respondents, v. Charles Werner et al., Appellants.
    (Argued February 10, 1886;
    decided March 2, 1886.)

      A. J. Simpson for appellants.

      Edwa/rd S. Papallo for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Danfobth, J.,

text:
    The Fuller Electrical Company, Respondent, v. Benjamin Lewis et al., Appellants.
    (Argued February 11, 1886;
    decided March 2, 1886.)
    This was an action in the nature of a creditor’s bill brought by plaintiff as a judgment creditor of the defendant Lewis, to reach property alleged to belong to him individually and also the proceeds of certain real estate which belonged to a firm of which he was a member, and which the complaint alleged was conveyed by the firm to defendant Thompson by conveyance absolute on its face, but which was intended simply as a mortgage to secure an indebtedness of the firm. The real estate was subsequently sold by Thompson. It appeared that at the time of the conveyance the firm was insolvent and largely indebted.
    The judgment among other things adjudged that the conveyance was intended as security only, and that the interest of Lewis in the property be subject to the payment of plaintiff’s judgments, and that plaintiff was entitled to recover the amount thereof of defendant Thompson. Held error.
    The court say:
    “ Not only do the pleadings admit individual property in the judgment debtor, but that fact is also found. Upon what principle then can the property of the firm be subjected to the payment of the individual debt of one partner? We know of none; yet by compelling Thompson to respond to the judgment, that result is reached. Nor is the plaintiff’s case altered by the clause of the judgment which declares the surplus in Thompson’s hands to be in trust for the firm, and the interest of Lewis therein subject to the judgment.. There is nothing to warrant that conclusion. The firm is found to be indebted and to be insolvent. Its property, therefore, insufficient to pay its debts. It would be a fraud upon the joint creditors to apply any portion of its property to the payment of a debt for which neither they nor their property were liable, and if the property is insufficient to discharge the partnership debts, there would be no interest left to the individual partner, or for his creditors. As the case stands, the plaintiff must be content with the appropriation of the individual property of Lewis. The appeal of Thompson should, therefore, succeed, and as to Mm, the complaint be dismissed, with costs to be paid by the respondent. So far as the judgment relates to property other than that conveyed to Thompson by Lewis, Barry and Fay, viz.: Shares in the capital stock of The Brooklyn, Flatbush and Coney Island Railroad Company, and other individual property held or owned by Lewis, the judgment should be modified by directing the appointment of a receiver thereof, with the usual powers of receivers in such cases, and as so modified, affirmed without costs of this appeal to Lewis or to the respondent.”

      H. C. Place for appellants.

      8. Sidney Smith for respondent.
   Danfobth, J.,

reads for reversal of judgment, and dismissal of complaint as to defendant Thompson, and for modification, and as to residue, for modification as above stated.

All concur.

Judgment accordingly.


author: Rugeb, Ch. J.,

text:
    James H. Chambers, Appellant, v. William H. Appleton et al., Respondents.
    (Argued February 12, 1886;
    decided March 2, 1886.)
    The principal questions in this case were as to the construction of a contract, and as to whether the evidence sustained findings of the referee.

      G. A. C. Barnett for appellant.

      Fd/wa/rd W. Paige for respondents.
   Rugeb, Ch. J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Peter Townsend, Respondent, v. Cassius H. Read et al., Appellants.
    (Argued February 12, 1886;
    decided March 2, 1886.)

      Christopher Fine for appellants.

      I. T. Williams for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


author: Finch, J.,

text:
    Jeffrey McColl, Appellant, v. Josiah J. Frith et al., Respondents.
    (Argued February 10, 1886;
    decided March 2, 1886.)
    Decided on the facts.

      G. S. P. Stillman for appellant.

      Etibward M. Shepard for respondents.
   Finch, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Jane C. Coleman, Respondent, v. Oliver C. Wright, Appellant.
    (Argued January 27, 1886;
    decided March 9, 1886.)

      Theodore Bacon for appellant.

      George W. Miller for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Ezra B. Weston, Respondent, v. Moses Chamberlain, Appellant.
    (Argued February 4, 1886;
    decided March 9, 1886.)

      Samuel Hand for appellant.

      Joseph A. Shoudy for respondent.
   Agree to reverse judgment unless plaintiff stipulates to reduce the amount of damages to $550 with interest from August 24, 1864, in that event to affirm.

All concur; no opinion.

Judgment accordingly.


author: Earl, J.,

text:
    In the Matter of the Opening, Widening and Improvement of Flushing Avenue in Long Island City.
    (Argued March 2, 1886;
    decided March 9, 1886.)
    This was a motion to vacate an order appointing commissioners of estimate and assessment in the matter above entitled.
    The following is the mem. of opinion:
    “ The Flushing Avenue Improvement Commissioners appointed by the act chapter 326 of the Laws of 1881, gave notice that they would apply to the Supreme Court at a Special Term thereof, to be held at the Kings county court-house in the city of Brooklyn on the first Monday of July, 1881, on the opening of the court on that day, or as soon thereafter as counsel could be heard, for the appointment of three commissioners of estimate and apportionment for the purpose of widening and improving Flushing avenue, as provided in various acts of the legislature in relation thereto, and to make assessments therefor. The first Monday of July was the Fourth of July, and that being a legal holiday, no court was opened or held ; but on the next day, J uly fifth, the motion was made and an order was granted and entered appointing the commissioners, no one appearing in opposition thereto. The claim is now made on behalf of these appellants that that order was improperly granted on the fifth of July, as the court was not formally opened on the fourth and adjourned until that time. It appears by the affidavit made by the clerk of the Special Term of the Supreme Court that he gave due notice and made proclamation that the court would be adjourned to the following day, Tuesday, July fifth. The General Term has construed this affidavit to mean that the notice was given and proclamation made on the fourth, and thus that the court was regularly adjourned in pursuance of the statute, and that, therefore, the order was regularly made on the next day. (Code, §§ 35, 36.) But even if this construction of the affidavit be erroneous and the notice was given and proclamation made by the clerk on the second of July, as claimed by the appellants, and even if there was no notice or proclamation of any kind at any time, the appointment of the commissioners on the fifth of July was at most a mere irregularity, and the order was not void. It does not appear that these appellants or any other persons were misled or that they appeared on the fourth. If they had appeared on that day it would have been quite easy for them to ascertain, by inquiry of the clerk or otherwise, the public and notorious fact that the court was not to be held on the fourth but that it would be open on the fifth. The affidavits used to oppose this motion show that these appellants had notice of the order soon after it was made, and yet they delayed until the fourteenth day of October — more than three months after the order was entered — before they made the motion to vacate it. In the meantime the commissioners appointed had gone on under the order with the knowledge of these appellants and substantially completed their report, and much expense in the execution of their duties had been incurred. Under such circumstances it could well be held that the appellants were precluded by their own loches from any right to raise the question of irregularity.

      “ The appellants also claim that the order appointing the commissioners was illegal and void for the reason that the act authorizing the improvement of Flushing avenue was unconstitutional and void, for various reasons alleged by them. They did not have the absolute right to prevail on their motion upon the constitutional grounds alleged by them, even if those grounds were well taken. The court could deny the relief claimed by them upon this motion, on the ground of loches, without passing upon the constitutional questions, as it was substantially decided in the Matter of the Application of Emily P. Woolsey, one of these appellants (95 N. T. 135). But there is a still more satisfactory ground for denying the motion made by these appellants. They are but two of the many persons affected by the order made. So far as appears, all the other persons whose lands were taken, and against whom assessments were made, have acquiesced in the order; and at the time this motion was made, as has been already stated, the commissioners of estimate and assessment had substantially completed their report. This order cannot be set. aside as to these appellants and left to stand as to all the other parties interested. The appointment of these commissioners must stand as made or be wholly vacated. Many of the other parties may have consented to the order and acquiesced in it, or may have so acted under it as to have estopped themselves from denying its validity. Under such circumstances it is impossible to perceive how the court could set aside the appointment of these commissioners in part and leave it to stand in part. And upon this ground it was competent for the Supreme Court to deny this motion.
    “ If the act, for the purposes of which these commissioners were appointed, is unconstitutional and void, these appellants can raise the constitutional questions when their lands are taken, or when it is attempted to enforce any assessment against them; and it is better and wiser that they should be left to their remedy by action and not be permitted to pursue it by motion to vacate the order of which they complain.
    “ For all these reasons, therefore, we are of opinion that the order of the General Term should be affirmed, with costs.”

      Frank F. Blackwell for appellants.

      G. W. Cotterill for respondent.
   Earl, J.,

reads for affirmance.

All concur.

Order affirmed.


text:
    Helen A. Babcock et al., Respondents, v. Oliver M. Arkenburgh, as Testamentary Guardian, etc., Impleaded, etc., Appellant.
    (Argued March 2, 1886;
    decided March 9, 1886.)

      Robert F. IAttle for appellant.

      Everett P. Wheeler, Jr., for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    The Mutual Life Insurance Company of New York v. Martin Schwaner, Individually, and as Executor, etc., et al.
    (Argued March 2, 1886;
    decided March 9, 1886.)

      James O. De La Mare and A. J. Yartderpoel for appellant.

      Charles W. West for respondent.
   Agree to affirm on opinion of Daniels, J., in court below.

All concur.

Order affirmed.


text:
    Arnold Davidson, Respondent, v. John F. Betz et al., Appellants.
    (Argued March 2, 1886;
    decided March 9, 1886.)

      Samuel Untermyer for appellants.

      James M. Gifford for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Ann Maria Deen, Respondent, v. William Milne, as Executor, etc., Appellant.
    (Argued March 2, 1886;
    decided March 9, 1886.)

      Edward G. Perkins for appellant.

      Joseph A. Shoudy for respondent.
   Agree to dismiss appeal; no opinion.

AH concur.

Appeal dismissed.


text:
    The People, ex rel. Daniel Evans, Respondent, v. Alfred C. Chapin, as Comptroller, etc., Appellant.
    Where a person entitled to a legacy or distributive share of a decedent’s estate is unknown, and the money has been paid into the State treasury pursuant to the directions of the Code of Civil Procedure (§ 2747), it is not money of the State, or belonging to any of its funds, or funds under its management within the meaning of the provision of the State Constitution (Art. 7, § 8), which prohibits the paying out of such moneys “ except in pursuance of an appropriation by law,” and upon compliance with the requirements of the Code and production of a certified copy of order directing payment of the legacy or distributive share to a claimant, it is the duty of the comptroller to draw his warrant therefor without such an appropriation.
    (Argued March 2, 1886;
    decided March 9, 1886.)
    This was an appeal from an order of General Term affirming an order of Special Term, which awarded a writ of peremptory mandamus, requiring the State comptroller to draw his warrant upon the State treasurer for the amount of moneys paid into the treasury by the administrator of the estate of Patrick Fox, deceased. The persons entitled to the moneys being unknown, the surrogate required them to be paid into the treasury, in pursuance of section 2747 of the Code of Civil Procedure.
    Upon, petition of the relator claiming to be entitled to the fund and upon report of a referee to whom the matter was referred, who reported that the relator was entitled to the whole of the fund, an order was granted in accordance with the provisions of said section, directing the payment thereof to relator. The comptroller, however, upon presentation of a certified copy of the order, refused to draw his warrant upon the treasurer for the amount on the ground that no appropriation had been made by the legislature for the payment.

      D. O’Brien, Attorney-General, for appellant.

      William J. Ludden for respondent.
   Agree to affirm on the ground that money paid into the State treasury, pursuant to section 2747 of the Code of Civil Procedure, is not money of the State or money belonging to any of its funds, or any of the funds under its management, within the meaning of section 8, article 7 of the State Constitution, and is not, therefore, subject to the prohibition of that section.

All concur ; no opinion.

Order affirmed.


text:
    Constance B. Price, Appellant, v. Dewitt C. Holman et al., Executors, etc., Respondents. Same, Appellant, v. Stephen Brown et al., Executors, etc. Respondents.
    (Argued March 2, 1886;
    decided March 9, 1886.)

      M. A. Sheldon for motion.
   Motions to dismiss appeals granted.

All concur.

Appeals dismissed.


text:
    William T. Ryle, Respondent, v. William P. Brown, Appellant.
    (Argued March 1, 1886;
    decided March 16, 1886.)

      Delos MoOurdy for appellant.

      Preston Stevenson for respondent.
   Agree to affirm; no opinion.

All concur.

J udgment affirmed. ■


text:
    The Second National Bank of Paterson, New Jersey, Appellant, v. Alfred P. Dix et al., Respondents.
    (Argued March 1, 1886;
    decided March 16, 1886.)
    The complaint was dismissed as to two of the defendants on trial. The court held that the case should have been submitted to the jury.

      Preston Stevenson for appellant.

      Thomas S. Moore and Delos MoOurdy for respondents.
   Earl, J.,

reads for reversal and new trial.

All concur, except Danforth, J., not voting.

Judgment reversed.


text:
    Rome, Watertown and Ogdensburg Railroad Company, Appellant, v. James E. Smith, Respondent. Same, Appellant, v. Carroll Phippany, Respondent.
    (Submitted March 2, 1886;
    decided March 16, 1886.)

      These were appeals from orders of General Term affirming orders of Special Term denying motions to continue temporary injunctions.
    The actions were brought to restrain defendants, who were town collectors, from collecting certain taxes assessed upon the property of plaintiff, which it claimed to be invalid because of defects in the affidavits attached to the assessment-rolls.

      Wm. B. Mornblower for appellant.

      Edmund L. Pitts and John Qu/neen for respondents.
   Agree to affirm without passing upon the validity of the original affidavits attached to the assessment-rolls.

All concur.

Orders affirmed.


author: Miller, J.,

text:
    In the Matter of the Application of The New York, West Shore and Buffalo Railway Company to acquire title to lands.
    (Argued March 2, 1886;
    decided March 23, 1886.)
    These were proceedings to acquire title to certain uplands on the west bank of the Hudson river under the General RaiL road Act. The owner of the land sought to be condemned, objected to the report of the commissioners fixing the damages, alleging that the railroad company proposed to build a solid embankment across a bay, and in front of the premises of the owner, cutting off a wharf belonging to her from the river, and depriving her of the use thereof, and that no damages were awarded to her therefor.
    The following is the mem. of opinion:
    “ It is claimed that the building of the embankment and the laying of the railroad track across the bay, thus cutting off the dock of the appellant, is a violation of section 28, chapter 140, Laws of 1850; that this dock has been used by appellant and her ancestors for more than forty years for freighting purposes, etc.; that the railroad company have built a solid embankment, on which trains are running, across the bay, which has cut off all communication between appellant’s wharf and the water inside and the river outside of the embankment.
    “ This point does not arise upon the papers presented on this appeal. The petition asks to take only a piece of upland described in the schedule by courses and distances, and as containing four and fourteen one-hundredths acres, more or less. The respondent did not apply for any right to cross the bay or in any way interfere therewith. It only sought to take a piece of upland which was described in the petition.

      “ In regard to the taking of this land there can be no valid legal objection to the proceedings. As to any interference otherwise the remedy is not by an appeal from the order in this matter. If the petitioner has erected a nuisance in front of the appellant’s wharf, which unlawfully interferes with her rights and privileges, she can proceed by an action at law against it for damages, or by an equitable action to remove the same. She has no redress upon this hppeal.
    “No other question is raised which requires examination.
    “ The order should be affirmed, with costs./’

      Edward Wells for appellant.

      Calmin Frost for respondent.
   Miller, J.,

reads mem. for affirmance.

All concur.

Order affirmed.


text:
    Benjamin Bronk, Respondent, v. The Boston and Albany Railroad Company, Appellant.
    (Argued March 3, 1886;
    decided March 23, 1886.)

      John Cadma/niov appellant.

      Samuel Ed/wamds for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Edwin P. Merritt et al., Appellants, v. Henry W. H. Fitzgerald, Respondent.
    (Submitted March 3, 1886;
    decided March 23, 1886.)

      S. F. Kneelwnd for appellants.

      Samiuel A. Noyes for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Thomas C. Simonton et al., Appellants, v. Frederick P. Hays et al., Respondents.
    (Submitted March 3, 1886;
    decided March 23, 1886.)

      D. H. Bolles for appellants.

      George H. Phelps for respondents.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Thomas J. Pope et al., Respondents, v. James McNider, Appellant.
    (Argued March 3, 1886;
    decided March 23, 1886.)

      Adolph L. Scmger for appellant.

      W. W. Niles for respondents.
   Agree to affirm; no opinion.

All concur, except Finch, J., dissenting.

Judgment affirmed. .


text:
    Alida F. Flint, Appellant, v. Calvin H. Bell, Respondent.
    (Argued March. 4, 1886;
    decided March 23, 1886.)

      O. W. Smith for appellant.

      Amasa J. Pa/rTcer for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Mary Perry, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
    (Submitted March 4, 1886;
    decided March 23, 1886.)

      Edmund B. Wynn for appellant.

      D. Magone for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Per Curiam, mem.

text:
    Annie M. Woolley et al., Appellants, v. Francis B. Baldwin, Respondent.
    A failure upon the part of a county treasurer to collect a bond and mortgage in his hands as such, is not alone sufficient to create a liability against him, facts must be shown establishing a neglect of duty on his part.
    (Submitted March 4, 1886;
    decided March 23, 1886.)

      This action was brought to recover damages for a failure on the part of defendant to collect a bond and mortgage, which defendant, as county treasurer, received from his predecessor in office.
    The complaint was demurred to, and defendant had judgment upon the demurrer.
    The following is the mem. of opinion :
    “The appellants claim that the complaint shows gross negligence on the part of the defendant as trustee, in not enforcing prompt payment of the interest, or else foreclosing the mortgage at once.
    “ The complaint shows that when the defendant came into office as county treasurer, in 1879, he received, as such, a bond and mortgage of $5,000, in which the plaintiffs, as infants, were interested to the extent of. $3,775.90 ; that the interest thereon was in arrears from November 1, 1876, and that although the property had greatly depreciated in value and was worth less than the amount of the mortgage, and although the mortgagor was insolvent, the defendant collected no interest on the mortgage and did not commence a foreclosure on the same until May, 1880. The complaint also alleged that the mortgage was due May 1, 1877, and further, that upon the foreclosure sale the property was sold for $1,105, of which the plaintiffs received $454.74, leaving a balance of $4,435.67 due them. It contained no averment that the defendant had any knowledge as to the value of the property or of the insolvency of the mortgagor.

      “ The question then is, whether the delay in commencing the foreclosure for sixteen months after he came into office, when two years interest was due thereon when he took his office, renders the defendant liable, without alleging in the complaint that he was chargeable with negligence in not ascertaining the value of the property, the insolvency of the mortgagor, and in omitting to foreclose the mortgage.
    “ Not alleging the facts or any of them renders the complaint defective in not showing on its face that the defendant was chargeable with a neglect of duty. As it stands, it does not charge negligence, but merely avers a failure to collect, which, of-itself, is insufficient to create a liability on the part of the defendant and makes out no cause of action.
    “ The judgment should be affirmed with leave to the plaintiff to amend on payment of costs.”

      Horace Seco?', Jr., for appellants.

      John J. Armstro?ig for respondent.
   Per Curiam, mem.

for affirmance.

All concur.

Judgment affirmed.


author: Daotobth, J.,

text:
    The People of the State of New York, Respondent, v. Peter Louis Otto, Appellant.
    (Argued March 6, 1886;
    decided March 23, 1886.)
    Defendant was convicted of murder in the first degree.
    The following is an extract from the opinion :
    “We are all agreed that no point is stated on which this appeal can prevail. First. As to the juror, Alger. Upon his ■examination as t'a the competency, it appeared that at the time of the murder he read some notice of the circumstances in one newspaper, and more recently in another, but he had no < formed impression about it,’ or ‘ firm opinion.’ Such opinion or. impression as he had he could lay aside, and ‘ sit as a juror in this case and render an impartial verdict according to the evidence.’ The prisoner challenged for cause. Assuming that the challenge was sufficient in form (§ 380, Code of Crim. Pro.), it was for the trial court to determine whether the juror entertained such opinion or impression as would influence his verdict. (§ 376, subd. 2.) It was apparent that he had no prejudice against the prisoner, and his mind was free to receive the evidence and decide upon it fairly and impartially ; he was, therefore, qualified to sit.”
    After a consideration of the testimony given on the trial, the (Court reached the conclusion that “ there was abundant evidence of premeditation and deliberation,” and that the verdict properly rendered.

      H. J. Swift for appellant.

      George T. Quinby for respondent.
   Daotobth, J.,

reads for affirmance.

All concur.

Judgment affirmed.


author: Peer Ov/riam.

text:
    The People of the State of New York, Respondent, v. Agnes Loehfelm, Appellant.
    Where land has been dedicated to the use of the public as a highway, to make it such, no formal laying out is necessary; all that is necessary is for the public to accept it as laid out and dedicated by the owner.
    The acceptance may be proved by long public use or by acts and conduct of the public authorities recognizing and adopting it as a highway.
    Where, upon the trial of an indictment for a nuisance in obstructing a city street, it was proved that a map was made by the owner of the land, laying out the street and dedicating it to the public use; that a resolution was passed by the common council directing a survey of the street as thus dedicated, and ordering the removal of obstructions therefrom; also that the city authorities put down water pipes and built a sewer through the same, and assessed the costs upon adjoining property, and that the public used and traveled it to its full width, except where prevented by obstructions ; held, that the evidence was sufficient to authorize the submission of the question to, and to justify a finding by the jury that the street was a public highway; that it was not necessary to show a public record of it as such, or a judgment establishing it.
    (Argued March 6,1886 ;
    decided March 23, 1886.)
    Appeal from judgment of the General Term of the Superior Court, entered upon an order made June 8, 1885, which affirmed a judgment of the Criminal Term of the said court entered upon a verdict.

      Defendant was indicted under the Penal Code (§ 385), for a misdemeanor in maintaining a public nuisance—an obstruction in a public street in the city of Buffalo, known as Beach street.
    The facts appear sufficiently in the opinion.

      Frank R. Perkins for appellant.
    A dedication without acceptance .does not make a public street. (Cowen’s Treatise, §§ 1280, 1281; Dill, on Mun. Corp., § 642; Niagara Falls Co. v. Bachman, 66 N. Y. 261.) The line established by actual use as the line of a street will prevail as against the different line established by the original line of the street. (Dill, on Mun. Corp., § 639; Wendell v. People, 8 Wend. 183; Schoonmaker v. Davis, 44 Barb. 463; Glover v. Shields, 32 id. 374; Perrin v. N. Y. C. R. R. Co., 36 N. Y. 120 ; Bissell v. N. Y. C. R. R. Co., 23 id. 62.) The city of Buffalo has power to remove all encroachments upon or obstructions to its public streets. (Charter City of Buffalo, chap. 519, Laws of 1870, title 9, § 5.) It must cause its public streets to be ascertained, established and the boundaries thereof settled and defined and recorded in a book to be kept by the city clerk in his office. (Id., §§ 12, 13.) Without such definite designation of boimdaries and public record, fixing and locating the street, no indictment will lie for obstructing the place. (Clements v. West Troy, 16 Barb. 252 ; Trustees of Jordan v. Otis, 37 id. 5; U. S. v. Schwarz, 4 Cranch [Cir. Ct.], 160; U. S. v. Emery, id. 270; U. S. v. King, 1 id. 444; Oswego v. Oswego Canal, 6 N. Y. 257; Bissell v. N. Y. C. R. R. Co., 26 Barb; 630; N. Y., N. H. & H. R. R. Co. v. New Haven, 46 Conn. 257; Detroit v. D. & M. R. R. Co., 23 Mich. 173, 209.)

      Tracy O. Becker for respondent.
    There could be no public street and highway, for obstructing which an indictment can be maintained, unless the dedication was formally made, and the lines of the street recorded as provided by the city charter in the office of the city clerk. (Charter, title 14, §§ 12, 13, p. 104; id., title 9, p. 101, §§ 1, 2.) “ Grading,” as applied to streets, means their reduction to a certain degree of ascent or descent. (Smith v. Washington, 20 How. [U. S.] 135-148; 2 Dill, on Mun. Corp., § 782, n. 1.) A dedication and acceptance may occur so as to make a public street within the meaning and intent of the common law and the statutory provisions against public nuisances, by the acts of the parties and the circumstances of the case, without an actual recording of the boundary lines of such streéts. (Dill, on Mun. Corp. [3d ed.], § 642 and notes; Cook v. Harris, 61 N. Y. 448.) No particular length of time is required to make a dedication valid and irrevocable. (Denning v. Rome, 6 Wend. 651; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Holdane v. Trustees Village of Cold Spring, 21 N. Y. 474; McMannis v. Butler, 51 Barb. 436; McCarthy v. L. S. & M. S. R. R. Co., 76 N. Y. 592; Porter v. Lambier, 5 Denio, 9, 10, 20; Jarvis v. Dean, 3 Bing. 447; City of Cincinnati v. Lessee of White, 6 Peters [U. S.], 431; Dill, on Mun. Corp., § 635 [501]; Hunter v. Sandy Hill, 6 Hill, 407; In re Thirty-second St., 19 Wend. 128 ; In re Twenty-ninth St., 1 Hill, 189-191; In re Furman St., 17 Wend. 649; 8 id. 85; 20 id. 96; 2 Seld. 257; Wiggins v. McCleary, 49 N. Y. 346; St. Vincent Asylum v. City of Troy, 76 id. 108.) The same jury may pass upon the question of existence of & public highway and the obstruction of it. (Lambier v. People, 5 Denio, 9; Smith v. State, 3 Zabr. [N. J.] 712.) Acceptance of a city charter, which includes an addition previously laid off, amounts to an acceptance of, the streets and alleys therein. (Requa v. City of Rochester, 45 N. Y. 129, 132; Des Moines v. Hall, 24 Iowa, 234.)
   Peer Ov/riam.

This conviction must be affirmed. The dedication of Beach street to the use of the public for its full width of sixty-six feet was proved by the map of the original owner and is not disputed. The debate has been over the acceptance by the public and the character of the proof necessary to establish that fact. The rule appears to be established that the acceptance may be proved by long public use or by the acts and conduct of the public authorities recognizing and adopting the highway. (Cook v. Harris, 61 N. Y. 448 ; Holdane v. Trustees of Cold Spring, 21 id. 474; McMannis v. Butler, 51 Barb. 436.) Such use and such acts were proved in this case. The common council directed a survey of Beach street as the land-owner had mapped and dedicated it and the establishment of its lines; which was done, and its boundaries distinctly marked, and obstructions upon its limits ordered to be removed. The authorities built a sewer through it and assessed the cost upon adjoining property and put down water, pipes; and the public used and traveled it to its full width except where prevented by obstructions. Upon facts like these, the question of acceptance was submitted to the jury who found the street to be a public highway. No formal laying out was necessary in such a case. The dedication dispensed with the need of that, and all that remained was for the public to say whether they would accept it as laid out and dedicated by the land-owner. That often becomes a question of fact, and was treated as such in this case. The argument that there must be a regular record of the road, or a judgment establishing it, before an obstruction can be prevented or punished, assumes that an acceptance cannot be otherwise proved, and is further answered by the cases which hold that the acceptance by the public which establishes the highway, and the obstruction to it may be found by one and the same jury. (Cook v. Harris, supra; People v. Lambier, 5 Denio, 9.)

We find no error in the record, and the judgment should be affirmed.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    James Byrnes, Respondent, v. Matthew Byrnes, Appellant.
    In 1871 plaintiff entered into defendant’s employment under an agreement that he was to receive for his services $14 per week, $9 to be paid and $5 to remain in defendant’s hands on interest until plaintiff should want it .or .should leave the service. Plaintiff continued in said employment until 1881. In an action to recover the amount of wages retained, it appeared that in,1874 plaintiff made a special deposit with defendant of §100, and that after he left defendant’s service, he brought an action to recover that sum and obtained judgment therefor, which was paid. Held, that the claim for the $100 was a separate and independent cause of action, and said j udgment was not a bar to this action.
    Plaintiff in the former action, for the purpose of being permitted to sue as a poor person, made an affidavit that he was pot worth $100 besides wearing apparel and furniture and the subject-matter of that action. Plaintiff testified that he swore to the affidavit without actually knowing its contents or understanding the force of the language used therein. Plaintiff could not read or write. Defendant’s counsel requested the court to charge that if plaintiff did not know the contents of the affidavit he was guilty of perjury; this was refused. Held no error.
    While it is perjury for one knowingly and willfully to swear to a fact as true about which he knows nothing, the swearing to an affidavit, the contents of which the deponent does not know, is not necessarily perj ury ; to constitute the crime he must have willfully made the affidavit, knowing that he did not know its contents or the facts alleged.
    Plaintiff produced on the trial a letter purporting to have been written by the defendant, and attempted to prove it by him, but he denied substantially having written it, and without further proof it was received in evidence ; subsequently it was clearly proved that defendant wrote the letter. Held, that the error in receiving it was cured by the subsequent proof.
    Defendant was afterward asked by his counsel to give what explanation he could of a material portion of the letter; this was objected to and excluded. Held no error ; that while standing upon a denial of the genuineness of the letter, defendant could not be permitted to state what he meant by a passage therein.
    (Argued March 6, 1886;
    decided March 23, 1886.)
    Appeal from judgment of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made May 22, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    The nature of the action and the material facts are stated in the opinion.

      Wm. H. Arnoux for appellant."
    Plaintiff under the agreement with defendant became a simple creditor at large; the defendants debtor with the right to use the moneys for his own use and benefit; and the moneys were a loan. (Butler v.
      Sprague, 66 N. Y. 392; Jordan v. Nat. Shoe & Leather Bk., 74 id. 467, 473; Ætna Nat. Bk. v. Fourth Nat. Bk., 46 id. 86.) The moneys arising from the wages, in connection with ' the other sum of $100, made an entire and single claim, arisiP out of the same general contract, which could not be split dy» and the judgment on the merits recovered by plaintiff on par t of the claim is a bar to the recovery upon the remainder. (Law v. McDonald, 62 How. Pr. 340; Jex v. Jacob, 7 Abb. N. C. 452; McIntosh v. Lowe, 40 Barb. 550; Badger v. Titcomb, 15 Pick. 409; Guernsey v. Carver, 8 Wend. 492; Bendernagle v. Cocks, 19 id. 207; Butler v. Sprague, 66 N. Y. 392.) The judge erred in his refusal to charge the jury that swearing t/ an affidavit without knowledge of its contents was perjury. (Pratt v. Price, 11 Wend. 127; People v. McKinney, 3 Park. 511; State v. Whittemore, 50 N. H. 245; 9 Am. Rep. 196 ; Rex v. Crossley, 7 Term R. 315; State v. Dayton, 3 Zabr. 49 ; Rex v. Hailey, 1 C. & P. 258; Reg. v. Christian, 1 Curt. Marsh. 388 ; Gurnee's Case, Star Chamber, 9 Jac. 1, cited in 3 Coke’s Inst. 166; 1 Bishop on Crim, law, § 524; State v. Gates, 17 N. H. 373.) It is not for the defendant to point out in. a jury trial the harm that immaterial evidence might do, but is for the plaintiff to establish that the immaterial evidence could not possibly have been detrimental to defendant. (2 Philips on Ev. [4th Am. ed.] 10, 12; Worwall v. Parmelee, 1 N. Y. 519; Shorter v. People, 2 id. 192; Taylor v. Church, 8 id. 452 460; Erben v. Lorillard, 19 id. 302; Ashley v. Marshall, id. 494; Brisbane v. Parsons, 33 id. 332; Starbird v. Barrows, 43 id. 200.) It must clearly appear that the partyconffljj plaining could by no possibility be in jured by the error. (Stokes v. People, 53 N. Y. 164; Wilson v. Wilson, 4 Keyes, 413; Anderson v. Rome, etc., R. R., 54 N. Y. 334; Meade v. Spaulding, 2 Alb. Law Jour. 49; Everts v. Everts, 62 Barb. 577; Petrie v. Howe, 4 S. C. 85.)

      B. F. Sawyer and Douglas A. Levien, Jr., for respondent.
    The judgment in the District Court was not a bar to this action. (Perry v. Dickerson, 85 N. Y. 345; Secor v. Sturges, 2 Abb. Pr. 69; 16 N. Y. 548; Reformed Pres. Church v.
      Brown, 54 Barb. 191.) A verdict will not be set aside on bill of exceptions, although there was error on the trial, if the 'error was such that it could do no legal injury. (Shorter v. People, 2 N. Y. 192; Wilson v. Wilson, 4 Keyes, 413.)
   Earl, J.

The plaintiff alleges that in May, 1872, he entered into the employment of the defendant, his uncle, under an agreement whereby he was to have for his wages the sum of $14 per week, $9 of which was to be paid to him, and $5 of which was to remain in the hands of the defendant upon interest for his benefit -until he should want it or leave the defendant’s service, and that he remained in the employment of the defendant from •that time until 1881; and this action was brought to recover the $5 per week thus left in the hands of the defendant with interest. The defendant in his answer denied the alleged O agreement, and alleged that the compensation of the plaintiff while in his service was to be $9 per week, and that he had paid him in full for all his services, and alleged other matter. The action came to trial before a judge and jury, and, while upon the trial the case developed some extraordinary features growing mainly out of the conflict between the evidence of the plaintiff and of the defendant as witnesses, yet there was sufficient evidence to uphold the verdict of the jury in favor of the plaintiff.

Upon this appeal it is claimed by the learned counsel for the defendant that various errors were committed upon the trial, for which the judgment should be reversed, and we will particularly notice the most important.

Fwst. In 1874 the plaintiff made a special deposit of $100 with the defendant, and in April, 1881, he sued the defendant in one of the District Courts in the city of New York to recover that $100, and he recovered judgment against him for’ that amount which was subsequently paid; and it is contended on behalf of the defendant that that judgment is a bar to the maintenance of this action. The claim is that that $100 specially deposited with the defendant, and so much of the plaintiff’s wages as were left with the defendant under the agreement made in 1872, constituted but one cause of action, and hence that the- plaintiff was bound to include all his claims against the defendant in one action, and that having sued and had judgment for a portion of his cause of action, the whole cause of action was merged in that judgment, and that that judgment is a bar to the maintenance of this action, upon principles decided in Guernsey v. Carver (8 Wend. 492), Bendernagle v. Cocks (19 id. 207), Jex v. Jacob (7 Abb. N. C. 452), and other cases. But we think the plaintiff’s claim for the $100 specially deposited with the defendant in money was a separate arid independent cause of action, and that, therefore, a recovery in the first action was not a bar to this within the principles laid down in the case of Secor v. Sturgis (16 N. Y. 548). The $100 was deposited under a separate agreement. It had no connection whatever with the agreement for the rendition of services by plaintiff for the defendant under which the defendant was permitted to retain the $5 per week from his wages. In Secor v. Sturgis, the rule was laid down thus: “ The true distinction between demands or rights of action which are single and entire, and those, which are several and distinct is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts; ” and that “ there must be either an express contract, or the circumstances must be such as to raise an implied contract,embracing all the items, to make them, where they arise at different times, a single or entire demand or cause of action.” There was nothing here to bring the claim embraced in this action and the 'claim embraced in the prior action within this rule.

Second. In the District Court action the plaintiff, for the purpose of being permitted to sue as a poor person, made an affidavit that he was not worth $100 besides wearing apparel and furniture over and above the subject-matter of that action. According to the plaintiff’s own evidence, he swore to that affidavit without actually knowing its contents or understanding the force of the language therein contained. The defendant’s counsel requested the court to charge that if the plaintiff did not know the contents of the affidavit to which he swore he was guilty of perjury, but the court declined to so charge, and defendant’s counsel excepted. It is now claimed that there was error in this refusal. While it is undoubtedly perjury for one knowingly and willfully to swear to a fact as true about which he knows nothing (1 Bishop on Crim. Law, 524, State v. Gates, 17 N. H. 373), yet it is not necessarily perjury for one to swear to an affidavit of which he did not know the contents. He may have thought he did know, and he may honestly have believed that he knew. This plaintiff could not read or write, and he was bound to rely upon others as to the contents of the affidavit. He might honestly have believed that the affidavit contained matter which it did not contain and have supposed that he knew its contents ; and hence he was not necessarily guilty of perjury, although in fact he did not know the contents. In order to fasten upon him the guilt of perjury, he must have known, at the time he verified the affidavit, that he did not know its contents, and he must have willfully made the affidavit, knowing that he knew nothing about its contents or the facts alleged. The facts contained in this request, therefore, even if sustained by the evidence, did not necessarily show that the plaintiff was guilty of perjury.

Third. The plaintiff produced upon the trial a letter purporting to have been written by the defendant to plaintiff’s father in Ireland, in which, speaking of the plaintiff, he said: “ James is well and is laying by one pound a week,” and he attempted to prove this letter by the defendant, and the defendant denied substantially having written it; and without further proof at the time the court received the letter in evidence. _ If there had been no. evidence subsequently given proving the genuineness of the letter, there would undoubtedly have been error in its reception; but subsequently very plain proof was given by another witness that the letter was actually written by the defendant and was in his handwriting. We think, therefore, that if there was error in receiving the letter when it was first put in evidence, the error was cured by evidence subsequently, given.

Fourth. Subsequently the defendant was asked by his counsel to give what explanation he could give of that part of the letter which stated that the plaintiff was laying by a pound a week. This was objected to by the plaintiff and excluded. We think this ruling was correct. The defendant had denied writing the letter, and while he was standing upon this denial and claiming that the letter was not genuine, he could not be permitted to state what he meant by any passage contained in it.

The learned counsel for the appellant claimed that various other errors were committed upon the trial. We have examined all the alleged errors and do not think that any of the defendant’s exceptions were well taken. We see no reason for reversing the judgment, and it should, therefore, be affirmed, with costs.

All concur.

Judgment affirmed.


author: Danforth, J.

text:
    Oscar C. Ferris, Respondent, v. William R. Spooner, as Assignee, etc., Impleaded, etc., Appellant.
    0. executed to plaintiff a bond ana mortgage dated July 15,1883, nominally to secure the payment of $37,000 on demand. It appeared they were in fact given to secure advances to be thereafter made under a contract of the same date between the parties, by which plaintiff agreed to loan 0. $37,000, “ provided he forthwith erect ” three houses on the mortgaged premises, the money to be advanced in specified sums as the work progressed, the whole of which was to be done within a year. If C. proceeded with the work so as to be entitled to the first advance within ninety days from the date of the agreement and to each subsequent advance in like time after the preceding one, it was agreed that no demand should be made for payment until ninety days after 0. had become entitled to the last advance. Prior to November, 1883, plaintiff advanced $11,500 under the contract. On November fourth, C. abandoned his contract leaving the houses in an unfinished condition, and made a general assignment for the benefit of creditors. In an action to foreclose the mortgage, commenced November 38, 1883, held, that when O. abandoned the contract, plaintiff was discharged from all obligations either to advance further sums or to delay foreclosure, and that, therefore, the action was not prematurely brought; also that a demand was not necessary before bringing suit.
    (Argued March 8, 1886;
    decided March 23, 1886.)

      Appeal from judgment of the Court of Common Pleas in and for the city and county of New York, entered upon an order made January 18, 1884, which affirmed a judgment in favor of plaintiff, 'entered upon a decision of the court on trial without a jury.
    This action was for the foreclosure of a bond and mortgage, executed by one Coggeshall to plaintiff on the 15th of July, 1882.
    The bond purports to have been given as security for the payment of $27,000 with interest on demand, but it appeared before the trial court that the obligor was not in fact indebted to the plaintiff and received no money from him at the time of its execution. The real consideration was expressed in certain instruments bearing even date with the bond and mortgage, and by which "the plaintiff agreed to loan Coggeshall $27,000, “ provided he forthwith erect ” three houses upon the mortgaged premises, the money to be advanced in certain sums as the work progressed; but it was agreed that no part of the loan should be made unless his title, at the time such advances became due, was “ satisfactory to the plaintiff,” nor after twelve months from July 15, 1882, unless the houses were then complete, and on the other hand, if he should proceed with the erection of the buildings so as to become entitled to the first advance within ninety days from the date of the agreement,' and to each subsequent advance in like time after the preceding one, then no demand should be made for the payment of the mortgage until ninety days after he had become entitled to the last advance on the loan.
    Between the 29th of September and the' 30th of October, 1882, the plaintiff advanced $11,500, but on the 4th of November, 1882, the defendant Coggeshall abandoned his contract to erect the houses and left the same in an unfinished condition. On the same day he made a general assignment of all his property (in value less than $200) to the defendant Spooner for the benefit of his creditors. The action was commenced on the 28th of November, 1882, and the ■ debtor and Spooner, his assignee, were made defendants. They answered jointly, but upon trial the above amount was found due and judgment of foreclosure and sale granted.

      W. T. Birdsall for appellant.
    So much of the paroi proof offered as tended to explain the transaction was as 'clearly admissible as were the agreements, one of which was under seal and the other not. (Code of Civ. Pro., § 840.) The clause in the agreement not to demand or foreclose for certain specified periods constitutes a defense. (Code of Civ. Pro., §§ 500, 501, 3339; N. Y., S. L. & V. Co. v. Helmer, 77 N. Y. 64; Seligman v. Dudley, 14 Hun, 186.)

      G. M. Thompson for respondent.
    The bond bteing payable on demand was in legal effect due presently and no demand was necessary. (Gillett v. Balcolm, 6 Barb. 370; Wheeler v. Warren, 47 N. Y. 519; Wenman v. Mohawk Ins. Co., 13 Wend. 268.) The agreement not to demand or foreclose for a limited time does not change the legal effect of the bond as understood by the parties. Breach of such a covenant is no defense to an action on the instrument. (Winans v. Hudson, 6 Wend. 472.)
   Danforth, J.

The appeal to this court is by Spooner as assignee. In substance he contends that the action is premature—that he might within the ninety days limitation go on with the contract, and at any rate that the plaintiff could not have payment or foreclosure until it expired. - But the plaintiff’s agreement to advance money and his promise to delay foreclosure were both dependent upon the undertaking of Coggeshall to erect the houses; when,- therefore, he repudiated the further performance of the contract, the plaintiff was discharged from all obligation to do either and set at liberty to enforce ■ his securities for the money already advanced. (Hochster v. De La Tour, 2 E. & B. 678.) A previous demand of payment was not essential to a cause of action. (Gillett v. Balcolm, 6 Barb. 370.) The appellant’s position is no better than that of his assignor, and the other points made by him seem to us unimportant.

We think the judgment was right and should be affirmed.

All concur.

Judgment affirmed.


author: Miller, J.

text:
    Bailey Hobbs, Appellant, v. The City of Yonkers, Respondent.
    In July, 1877, plaintiff was appointed city treasurer of the city of Yonkers, defendant. Before his appointment he signed a paper by which he agreed that if confirmed as treasurer he would pay into the city treasury all of his fees and percentages, in excess of §2,000 per annum. By the city charter as it then stood (Chap. 35, Laws of 1873), the city treasurer ' was entitled to a percentage on all payments made by him. In 1878 the charter was amended (Chap. 119, Laws of 1878), by authorizing the common council to fix the compensation of the treasurer on or before the commencement of his term, ata sum not exceeding §2,000. It was provided also that the term should commence on the'first Tuesday of June, 1878. No action was taken by the common council to fix the compensation and no new appointment was made; plaintiff continued in office until November 29,1881. Plaintiff rendered an account each year, crediting himself with §2,000 as and for his compensation; the accounts were adjusted and settled, this sum being allowed to him, and during his term he made no claim to any further compensation. At the close of his term he rendered a final account and turned over to his successor the balance so shown in his hands. In an action to recover a balance alleged to be due plaintiff for fees and commissions, held, that although the agreement made by plaintiff was invalid, yet he had a right to release the city from all claims beyond the amount agreed upon, and his accounts as presented and settled were equivalent to such release and discharged defendant from further liability ; also held, that so far as the compensation accruing after the first Tuesday of June, 1878, was concerned, it was to be presumed that the common council omitted to fix plaintiff’s salary in reliance upon his agreement, and he was estopped from claiming more.
    Plaintiff claimed that the city treasurer was not entitled to retain any thing for his fees, but must be paid from the city treasury by warrant of the common council, and that, therefore, the accounts as allowed and settled were illegal. Meld, that it did not rest with plaintiff to raise the objection.

      People, ex rel. v. Bd. of Police (75 N. Y. 38); People, ex rel. v. Trench (91 id. 265); Kehn v. The State (93 id. 291), distinguished.
    (Argued March 9,1886;
    decided March 23, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made May 13, 1884, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury. (Reported below, 32 Hun, 454.) •

      This action was brought to recover a balance alleged to be due plaintiff for his fees as city treasurer of the city of Yonkers.
    The material facts are stated in the opinion.

      Matt. E. Ellis for appellant.
    The plaintiff was a public officer; his compensation was fixed b.y statute and attached to his office, and having faithfully performed his duties he is entitled to the statutory allowances during the period of his services. (Laws of 1873, chap. 35, title 2, part 1; Laws of 1875, chap. 578, §§ 7, 21; People, ex rel. Satterlee, v. Board of Police, etc., 75 N. Y. 38; People, ex rel. Ryan, v. French, 91 id. 265.) The right to the compensation grows out of the rendition of the services, and not out of any contract between the government and the officer, that the services shall be rendered by him. (Connor v. Mayor, etc., 5 N. Y. 285; Smith v. Mayor, etc., 37 id. 518.) It is not the actual fact of payment, but the rate authorized to be paid which is the test. (Taylor v. Mayor, etc., 67 N. Y. 88.) Nor does the continual practice of the board to /make such deductions, however general, control the true construction of the law, or impair the right plainly given thereby. (People, ex rel. Ryan, v. French, 91 N. Y. 265; Kehn v. The State, 93 id. 291.) The agreement with defendant was wholly illegal. (Satterlee v. Board of Police, 75 N. Y. 38.) The plaintiff is not estopped by the defenses interposed,of agreement executed, voluntary payment, waiver, or account stated. (Lake v. Artisans' Bank, 3 Keyes, 276; Flower v. Lance, 59 N. Y. 610; Kerr’s Law of Fraud and Mistake, 70, 81, 82; Underwood v. Farmers' Ins. Co., 57 N. Y. 506; Buffalo v. Makey, 15 Hun, 204; Walker v. Gilbert, 2 Robt. 214.) The reports were not an “ account stated ” that would bar recovery. (Alb. Law Jour., Feb. 2, 1884; Texas & St. L. R. v. Smith, Texas Ct. of App., Nov., 1883; Stenton v. Jerome, 54 N. Y. 480; Astley v. Reynolds, 2 Strange, 915.) . There was no waiver. (Phyfe v. Eimer, 45 N. Y. 102.) The transaction was against public policy, absolutely void, and not binding upon the plaintiff so as to preclude the recovery of his statutory fees remaining unpaid. (Hofheimer v. Campbell, 59 N. Y. 274; Haswell v. Mayor, etc., 81 id. 255; Wood v. Mayor, etc., 73 id. 556; Connor v. Mayor, etc., 5 id. 285; Satterlee v. Board of Police, 75 id. 38; Kneetle v. Newcomb, 22 id. 249.)

      Theodore Fitch for, respondent.
    If the agreement had been illegal or originally voidable, it could not be ignored, after having been fully executed. (Willitts v. Sun Mut. Ins. Co., 45 N. Y. 45; Train v. Gold, 5 Pick. 380; Hilton v. Southwick, 17 Me. 303; L'Amereux v. Gould, 7 N. Y. 349; Flower v. Lance, 59 id. 603; Town of Verona v. Peckham, 66 Barb. 103; White v. Baxter, 71 N. Y. 254; Sands v. Crooke, 46 id. 564.) Where an illegal contract is executed, the courts will not aid zparticeps criminis in impeaching it, or setting it aside, or pleading ultra vires. (Knowlton v. C. & E. Spring Co., 57 N. Y. 518; Mosely v. Mosely, 15 id. 334; Whitney Arms Co. v. Barlow, 63 id. 62; Rider Life Raft Co. v. Roach, 97 id. 378; Atlantic State Bank v. Lavery, 82 id. 29.) The plaintiff cannot avail himself of the doctrine of ultra vires. (Rider Life Raft Co. v. Roach, 97 N. Y. 378; Bissell v. Mich. S. R. R. Co., 22 id. 258; Davis v. Old Colony R. R. Co., 131 Mass. 258.) It was competent for the plaintiff to waive the statutory provisions as to fees, and to repay to the city the whole or any portion thereof. There was no consideration of public policy to prevent such action on his part. (Phyfe v. Eimer, 45 N. Y. 102; Embury v. Connor, 3 id. 50 ; Baker v. Braman, 6 Hill, 47; Kimball v. Munger, 2 id. 364; Kneetle v. Newcomb, 22 id. 249, 252; Nellis v. Clark, 20 Wend. 24; Perkins v. Savage, 15 id. 412; Armstrong v. Toler, 11 Wheat. 258; Hodge v. Hoppock, 75 N. Y. 491; Dunn v. Hornbeck, 72 id. 80; In re Application of Cooper, 3 id. 507.) There were accounts stated and settled which bar recovery for any amount claimed in this action by the plaintiff. (Stenton v. Jerome, 54 N. Y. 480; Volkening v. De Graef, 81 id. 268.) An account stated cannot be opened except in a direct action in a court of equity, and then only when the party objecting shows clearly that he has been misled by fraud, mistake, or manifest error. (Harley v. Eleventh Ward Bk., 76 N. Y. 618; Bullock v. Boyd, 2 Edw. Ch. 292; 1 Story’s Eq. Jur., §§ 526, 527.)
   Miller, J.

On the 15th of June, 1877, the common council of the city of Yonkers passed a resolution consenting to and advising the appointment of the plaintiff as treasurer of said city. At the suggestion of some of the members of the common council, one of their number presented to the plaintiff a paper stating, in substance, that if the plaintiff was confirmed as treasurer he agreed to pay into the city treasury all fees and percentages received by him as such treasurer, in excess of $2,000 per annum. The plaintiff signed the paper, which was returned to the common council and ordered to be placed on file, and thereupon the mayor appointed the plaintiff as city treasurer. On the 9th of July, 1877, the plaintiff duly qualified as said city treasurer and gave the bonds required by law, and continued to act as such treasurer until November 29, 1881, and until his successor was appointed and had qualified.

The appointment of the plaintiff was made in pursuance of chapter 35, Laws of 1873, which authorized the mayor to make the appointment with the approval of the common council. At this time the compensation fixed by law was one per cent on all payments made by him. By chapter 119, Laws of 1878, the city charter was amended, and, among other things, the common council was authorized to fix and limit the amount of compensation of the city treasurer at a sum not exceeding $2,000 a year, on or before the commencement of his term of service, and it provided that the amount of fees and percentages received by him in any one year, in excess of the sum so fixed and limited by the common council, shall be retained to the use of the city. The statute also provided that the term of the city treasurer should commence on the first Tuesday of June, 1878, and at any time thereafter the common council had the right to. fix the salary of the plaintiff at $2,000 a year. After the last-named time the common council allowed the plaintiff to continue in office over three years, and until his successor was appointed, without fixing his salary, as they had a right to do, evidently relying upon his agreement to serve for $2,000 a year. But for that agreement it is fair to assume they would have adopted a resolution fixing the salary. The plaintiff having assented to the arrangement, the amount named in the agreement may be considered as the salary to which he was entitled, the same as if it had been fixed by the common council, and he is estopped from claiming that the salary was not $2,000 for the time aftér the first Tuesday of June, 1878. Under the circumstances it may fairly be assumed that he acted as if his salary had been fixed at that sum. lio point was made on the trial that the plaintiff could, in any event, have recovered more than $2,000 for the first year ending on the first Tuesday of June, 1878, and no distinction was made between what salary accrued before and what after that date.

When the plaintiff was appointed, he was entitled to a percentage on all moneys received by him, and no authority existed in the common council to change the compensation thus fixed, and the writing signed by the plaintiff was, of itself, inoperative for any such purpose. I'Tor was any sum afterward fixed by action of the common council or any new appointment of the plaintiff made. He remained in office until his successor was appointed, discharging the duties as he had previously done and receiving a compensation of $2,000 a year therefor. Each year he rendered an account and paid all his receipts into the city treasury, except that he retained the sum of $2,000 annually, which was allowed him for his compensation. Upon this basis his accounts were adjusted, and during the whole of his term as city treasurer he made no claim for any further compensation than the amount which had been agreed upon.

The agreement was a voluntary one, and there is no sufficient ground for claiming that any fraud or deceit was practiced by means of which the plaintiff was induced to forego his right to the full compensation provided by law for his services, and to accept the amount fixed in lieu thereof. The agreement thus entered into was fully'performed and executed. It was not an executory agreement against which a party could set up any legal defense and justify his refusal to perform the same. All of its conditions had been carried into effect and executed before this action was commenced, with the consent and approval of all the parties. As we have seen, the plaintiff had settlements with the common council annually upon the basis of this agreement, assuming that it was valid and effectual, and thus he precluded himself from repudiating the same.

Conceding that the agreer lent was illegal and invalid, the plaintiff had a perfect right tó release the city from all claims he had for services beyond the amount which he had agreed to accept. Had he executed -an instrument to that effect purporting to be in full of all demands on account of his fees, no serious question could arise that it would be effectual for such a purpose and that he would preclude himself from asserting any further right to compensation. He has substantially and really by his conduct in the transaction of the business done all this, and by his repeated settlements, in which he has accepted the compensation agreed upon, virtually discharged the defendant from any'further liability. These accounts stated and rendered to the common council, and assented to by them as correct, are an effectual bar to any recovery in this action. At the close of his term of office he rendered his final account, and at the end thereof accepted a receipt from his successor to the effect that he had paid over to him several thousand dollars belonging to the city.

These annual accounts, which were presented by the plaintiff to the common council and accepted by them as correct, contained the elements of accounts stated which are equivalent to an acknowledgment that he has received full compensation for his services and to a release for any further claim on account thereof. Such an account stated cannot be disturbed except by an action in equity for that purpose, showing that the party had been misled by fraud, mistake or manifest error. This is not established, and there is no valid ground for setting aside the settlements which have been made between the parties.

The counsel 'for the appellant relies upon certain cases decided by this court to establish the principle that an officer of a municipal corporation cannot be compelled to take less compensation for his services than that fixed by statute, viz.: (People, ex rel. Satterlee, v. Board of Police, 75 N. Y. 38; People, ex rel. Ryan, v. French, 91 id. 265; Kehn v. The State, 93 id. 291.)

These cases are clearly distinguishable from the one now. considered. The plaintiff here received into his hands sufficient to pay the amount of fees to which he was entitled, which were fixed by law, and voluntarily paid the same over to the city less the amount agreed upon. He made repeated annual reports, each one of which was equivalent to an account stated, and finally he made a settlement of his entire claim by accepting a receipt for the balance in his hands, thus carrying into effect the agreement he had made, and virtually releasing the city from any additional or further claim. He has thus by his own acts estopped himself from claiming the benefit of the principle decided in the cases cited. There was no such characteristic in any of these cases cited, as is presented in the case at bar, and they are not applicable to the facts appearing in the record before us.

Conceding there was no consideration for the original arrangement, the plaintiff had a right to surrender any claim he might have by reason of its illegality and discharge the same.

The appellant claims that the city treasurer could retain nothing for his fees; that they must be paid from the city treasury by warrant of the common council if his accounts should be found to be correct, and it was, therefore, illegal for the common council .to allow the plaintiff to appropriate the moneys mentioned in his annual reports as salary. The answer to this position is that the plaintiff adjusted his accounts in this form, consented to and received his pay as already stated, and made a full settlement of his claims for services as treasurer, and it does not rest with him now to insist that the payments were illegal because no warrant was issued for what he received, even if it was entirely apparent that such warrant was required by law.

Humerous other questions are raised which we have examined, but we are unable to perceive in any of the rulings upon the trial any ground for reversal of" the judgment.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Rapallo, J.

text:
    Ralph Newell, Appellant, v. Richard Whigham et al., Respondents.
    A sheriff’s return to a writ of possession is not conclusive as to the execution of the writ.
    As against á mortgagee of a leasehold interest, who is not in possession of the demised premises, to set the six months statute of limitations running (2 R. S. 506, § 35), and cut off his right to redeem, the execution of a writ of possession, issued in an action of ejectment brought by the landlord because of non-payment of rent, must be an open, visible and notorious change of possession ; a merely nominal and secret execution of the writ is not sufficient.
    In an action to foreclose a mortgage upon a leasehold interest, in which the assignee of the landlord defended on the ground that the mortgage had been cut off by the execution of a writ of possession in an action of ejectment brought by the landlord for non-payment of rent, and by a failure of the mortgagee to redeem within six months, it appeared that the deputy of the sheriff, to whom the writ was issued, went upon the premises and notified W., the assignee of the lease, who was in possession, of his business; he did not go into the house upon the premises, but reached in, took a chair, set it out and wént off; it did not appear that the chair was removed from the premises; W.’s family were there at the time, and remained there, and lie continued in actual occupation thereafter. It did not appear that any person was put in charge or possession on the part of the plaintiff in the ejectment suit, or that W., or any person on the premises, attorned to the plaintiff or to any one in his behalf, or undertook to hold for or under him. The sheriff made return that he had executed the writ by delivering possession to the plaintiff in the ejectment suit. Held, the evidence did not justify a finding that the writ was executed.

      Witbeclc v. Van Rensselaer (64 1ST. Y. 27), distinguished.
    The complaint set forth the recovery of judgment in the ejectment suit, and alleged a tender and payment into court of the amount of rent in arrear, with the costs and charges to which the plaintiff in that action was entitled ; also that plaintiff here was ready and willing to pay said rent and charges. It was claimed by defendants that the effort to redeem was ineffectual, as the amount tendered was insufficient, and that, therefore, the complaint was properly dismissed. Held untenable; that as the statutory limitation as to time to redeem had not expired at the time of trial, the insufficiency of the amount tendered did not authorize a dismissal of the complaint; that as the complaint contained an offer to pay all the back rents, costs and charges, the court could have required the payment of the proper amount as a condition of granting relief.
    (Argued November 25,1885;
    decided March 26, 1886.)

      Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made November 21, 1882, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.
    The nature of the action and the material facts are stated in the opinion.

      Isaac H. Maynard for appellant.
    The statute imposing a short bar at six months to a common-law right of redemption should receive a strict construction. (Doe, ex dem. Hitchens, v. Lewis, Burr. 619; Hill v. Barclay, 18 Ves. 60; 2 Platt on Leases, 477; Woodfall’s Landl. and Tenant [7th ed.], 655, 656; Hasbrouck v. Paddock, 1 Barb. 635; Mitchell v. Smith, 53 N. Y. 413.) The plaintiff’s right to relief is not barred by the statute above quoted, because no valid execution was ever issued and executed on the judgments against Whigham. (Code of 1848, §§ 283-290.) The executions were a nullity as to the plaintiff, because they commanded the sheriff to return them to the court instead of to the clerk, and within twenty-one days after they were issued, instead of sixty, as required by the statute. (Old Code, § 290.) The execution should have been issued by the assignee, and it should have directed the delivery of the possession to him. (Herman on Executions, 44; Code, § 289, subd. 4.) The proof shows that the writ of possession was never actually executed. (Herman on Executions, 530, 531, 553; Witbeck v. Van Rensselaer, 64 N. Y. 27.) The return of the sheriff is not conclusive. (Browning v. Hanford, 5 Denio, 289; Baker v. McDuffie, 23 Wend. 586; Fitch v. Devlin, 15 Barb. 47.) The plaintiff’s time to redeem did not begin to run, because the costs in the ejectment suits were never finally adjusted. (Old Code, § 311; Sherman v. Wells, 14 How. 522, 526, 527; Chapman v. Plymouth Society, 42 Barb. 441; Sherman v. Postley, 45 id. 348.) The defendants are now estopped from insisting that there was a forfeiture of the lease, under the judgments in ejectment against Whigham,by the order which Hr. Y oilmans procured to be entered September 26,1873. (Dwight v. St. John, 25 N. Y. 203; Riggs v. Purcell, 74 id. 374; Bennett v. Couohman, 48 Barb. 73.) Mr. Youmans by Ms stipulation dated October 30, 1873, waived the forfeiture, if any had been incurred, by his previous attempt at re-entry. (Collins v. Hasbrouck, 56 N. Y. 157; Shearman v. Niagara Ins. Co., 46 id. 526; Galagher v. Nichols, 60 id. 438; Harris v. Thorpe, 8 Paige, 422.) The provisions of the statute relating to the redemption of lands from a forfeiture on account of the non-payment of rent have no application to the stipulations, and do notin any manner restrict or limit the jurisdiction of the court to grant relief to a party whose failure to comply with the terms of the stipulations is excusable. (2 Story’s Eq. Jur. [5th ed.], §§ 1314-1321; Skinner v. Dayton, 2 Johns. Ch. 525; Livingston v. Tompkins, 4 id. 415; Spaulding v. Hollenbeck, 39 Barb. 79; Giles v. Austin, 62 N. Y. 486; S. C., 46 How. 269; 38 N. Y. Supr. [J. & S.] 215-235.) The plaintiff’s right to a retaxation of costs in the ejectment suits against Whigham is expressly recognized in the order of September 23, 1873, and an application for such retaxation provided for. (Union Bank v. Bush, 36 N. Y. 636.)

      William Youmans for respondents.
    The plaintiff having failed to pay the costs and rent in arrear within six months from the 27th day of June, 1872, the date of the execution of the writs, is barred and foreclosed from all relief in law or in equity. 2 R. S., part 3, chap. 8, title 9, art. 2, p. 506, §§ 33, 34, 35, 36; Wiibeck v. Van Rensselaer, 2 Hun, 55; affirmed, 64 N. Y. 27.) The writs of possession were in the form prescribed by 3 B. S. [5th ed.] 595, and may be returnable immediately. (18 Q. B. 806 ; Herman, on Executions, 534 ; Budd v. Bingham, 18 Barb. 498,499.) The time, allowed the plaintiff to redeem the premises from the consequences of the judgments in ejectment, began to run at the time of the eviction of the defendant in ejectment under the writs of possession. (Witbeck v. Van Rensselaer, 2 Hun, 55; S. C., 64 N. Y. 27.) The costs in the two actions of ejectment against Whigham having been taxed and re taxed on notice, in the manner provided by statute, became conclusive upon the defendant therein, and those in privity with Mm, and cannot be attacked collaterally. (Pitman v. Mayor, etc., 3 Hun, 370; Supervisors v. Briggs, 2 Hill, 135; S. C., 2 Denio, 26; White v. Coatsworth, 2 Seld. 137, 143; Van Schaick v. Winnie, 8 How. 5; Nellis v. De Forest, 6 id. 413; Hanna v. Dexter, 15 Abb. 135; Wait’s Ann. Code, 626, notes e, h; 3 Wait’s Sup. Ct. Pr. 558, 559; 11 How. 160; 1 id. 195.) In proceedings in equity, if fraud is not alleged in the pleadings, no proof can properly be received. (Bailey v. Rider, 10 N. Y. 363.) An issuable fact not alleged, though proved, cannot form the basis of a decree, the judgment must be seeundum allegata. (Field v. Mayor, etc., 6 N. Y. 179; Wright v. Delafield, 25 id. 266 ; Arnold v. Angell, 62 id. 509.)
   Rapallo, J.

The plaintiff was mortgagee of the lessee’s interest in two tracts of land in the Kortright patent held under a perpetual lease from Kortright, reserving rent. This action was brought to foreclose the mortgage on the lease. The defendant Youmans succeeded to Kortright’s title to the foe and the rents, and held such title up to January 17, 1873.

The plaintiff’s mortgage was dated July 4,' 1864, and record ed August 15, 1864, and was given to secure the payment of the sum of $1,657.25 and interest. It covered one hundred and fifty acres of land in lot 86, and five acres and seventeen rods in lot 101 of the Kortright patent. The complaint was in thh ordinary form in an action for the foreclosure of a mortgage on leasehold property, except that, in addition to the usual averments, it alleged that in February and March, 1871, Eliza Cruger and William Youmans, who were at that time the owners of the fee, recovered separate judgment, in ejectment for non-payment of rent, against the tenant in possession of the one hundred and fifty acre lot, and that on the 28th of June, 1872, they issued executions or writs of possession on said j udgments to the sheriff of Delaware county, who, on the 14th of November, 1872, filed in the office of the clerk of the court his return to said executions, stating that he had delivered possession of the premises to the plaintiffs as required by the writs. The complaint then went on to allege that at the time last mentioned Youmans was the owner of both of the judgments and of Kortright’s title, and set forth proceedings for the re-taxation of the costs in the ejectment suits and a stay of those proceedings. That the costs amounted to $1,085.55, but were by an order entered in December, 1871, ordered to be re-taxed, and that proceedings under that order had been stayed. That if re-taxed, in accordance with the opinion delivered by the court on the decision of the motion,, the costs would amount to only the sum of $260. That the rent in arrear on the Kortright lease, up to the time of the commencement of this action, was $400 and had been tendered by the plaintiff to the landlord, and that the plaintiff had, before the commencement o'f this action, paid into court all the rent in arrear and all costs and charges legally incurred by the plaintiffs in the ejectment suits, and tiiat the plaintiff in this action was ready and willing to pay said rent and charges.

The relief asked was the usual foreclosure, and a special judgment that the plaintiff’s mortgage should not be affected by the judgments in ejectment; that those judgments might be adjudged paid; that the mortgaged premises be sold and the plaintiff be paid the amount due on his mortgage, and his costs and the amounts, paid by him for arrears of rent and costs. The answer alleged that writs of possession were issued on the judgments, and that on the 27th of June, 1872, the sheriff of Delaware county dispossessed the occupants of the farm and gave the possession thereof to the defendant William Toumans, Jr., then owner, etc., who then and there became possessed thereof arid continued, etc. The court dismissed the complaint on the sole ground that the plaintiff’s mortgage was cut off by the judgments in ejectment and executions executed thereon, and his failure to redeem within six months after executions executed.

It appears from the findings that, the executions were returned on the 14th of November, 1872, as having been executed on the 27th of June, 1872, arid that on the 18th of November, 1872, the attorney for the present plaintiff received notice of the filing of the return. It does not appear that the plaintiff had any notice of the execution of the writs before that time; and within less than three months afterward, viz., on the 30th day of January, 1873, he endeavored to redeem his interest as mortgagee, from the judgments in ejectment, by tendering to Youmans for back rent and costs, with interest, the sum of $750, and on his refusal to accept that sum the plaintiff paid the amount into court, and on the nineteenth of February following brought this action, making Youmans a defendant as holder of the judgments for costs, and also Martha Whig-ham, to whom Youmans had, on the 17th of January, 1873, conveyed the fee of the land, Martha being the wife of Itichard Whigham, the grantee of the mortgagor, who had taken his deed subject to the plaintiff’s mortgage-as is expressed in the deed. The defendants now claim, and the court below held, that the plaintiff’s mortgage was cut off and his effort to redeem was ineffectual, first, because it was too late, and second, because the amount tendered was insufficient.

If the tender was too late and the six months limited by the statute had expired, the amount tendered became immaterial, but if the statutory limitation as to time had not expired, even at the time of the trial of the action, then the insufficiency of the amount tendered would not authorize a dismissal of the complaint,.for it contains an offer to pay all the hack rents, costs and charges,-and the court could have required the payment of the proper amount as a condition of granting relief. It is, therefore, unnecessary now to go into the question of the right of the plaintiff to a re-taxation of the costs and their reduction under the various orders and stipulations set out in the case. The decision of this appeal must turn upon the question whether the six months limitation had expired.

The plaintiff contends that it had not expired, for various reasons, some of which were considered and passed upon in the court below, and many of which do not appear to have been there raised. First, he contends that the executions were void by reason of numerous departures from the requirements of the Code of 1848. Further, that the six months did not begin to run until the execution was returned and filed November 14, 1872, as it was not fully executed until that time, the command to make return not having been obeyed. Also that the executions were only partial, not being executions on the whole of the judgments, which included the costs awarded, and which should have been collected from the judgment debtor; but a more decisive point than all these is that the executions were never executed, possession of the premises not having been taken by the sheriff or delivered to the person entitled. If this point is well taken it is decisive of the case without reference to the others.

The facts and circumstances attending the alleged execution of the writs were proved on the trial without objection, and' were found by the trial judge, and the question is, therefore, fully presented to us whether they disclose, an execution of the writs sufficient, under the statute, to cut off the rights of amort- . gagee not in possession.

Richard Whigham in 1870, and while the ejectment suits were pending, conveyed the leasehold title to his son James M. Whig-ham, subject to the plaintiff’s mortgage, which James II. in and by the deed to him assumed to pay. It is found that at the time when the writs of possession were claimed to have been executed, James M. Whigham was in possession of the premises. The trial judge, in his seventh finding of fact, states, among other things, that writs of possession oh the judgments pf Oruger and Toumans were issued to the sheriff of Delaware county, and that on the 27th of June, 1872, said sheriff executed said writs as by them commanded, .and made and signed returns in each case iú the following form r “ Delaware County, ss. :

I, Edward Griffith, sheriff of Delaware county, do duly certify that I have executed this writ by delivering the possession of the premises therein described to the plaintiff William Toumans, Jr., this 27th day of June,. 1872.

EDWARD A. GRIFFITH, Sheriff.

By Alexander Shaw, Under Sheriff of Delaware County.”

The plaintiff duly excepted to so much of this seventh finding of fact as states that the sheriff executed said writs.

The part of the finding thus excepted to is contrary to the evidence and to the fifteenth finding of fact.

The evidence, and the whole evidence on the subject outside of the sheriff’s return, is that of James M. Whigham, the party in possession. He testified that he succeeded his father, the defendant in the ejectment suits, in the possession of the premises, and was there at the time the writs of possession were claimed to have been served. That he thought Deputy Sheriff Shaw and Charles McPhail, a clerk of Youmans, came there. Shaw told his business and asked witness what he should set out. Witness told him to set the woman out if he wanted to, and he said he did not want to do that, and he did not go into the house at all, but reached in and took out a chair and set it out and went off. That witness’ family were there at the time and remained there after that. That he had stated all that was done.

It does not appear that even the chair was removed from the demised premises. The witness further testified that after the alleged dispossession he met Youmans and talked about a settlement with him, and he said to witness: Go home and keep still until the time runs out, and we will beat the old devil out of his mortgage there up to the head of the river, beside Gilbert & Maynard.”

This conversation was denied by Youmans, and the trial court held that the questions of fraud and collusion to cut off the plaintiff’s mortgage could not be tried in this action for the reason that they were not alleged in the complaint, and that is one of the questions raised by the appellant on this appeal. But the evidence as to what took place at the time of the alleged execution of the writ of possession is not in any respect controverted, and by the fifteenth finding of fact the trial court found that at the date of the execution of the writs of possession, James M. Whigham was in possession and he was not, nor were his movables all removed from said premises, and he continued in actual occupation of said premises until about January 17, 1873, the date of the deed from William Youmans to Martha Whigham, since which time she and her husband Richard have been in possession of said premises.

It is not found, nor is there any evidence whatever, that any person was put in charge or possession on the part of the plaintiffs in the executions, or that James M. Whigham or any person on the premises attorned to the plaintiffs in the executions, or to any oné on their behalf, or undertook to hold for or under them, or in any manner recognized title or possession in the.m.

On these facts it clearly appears that there was no change whatever in the possession, and that what was done amounted simply to a notification to the tenant that the sheriff held writs of possession. He put no one out and no one in.

The ordinary rule in regard to the execution of a writ of possession is that the plaintiff must be put into full and complete possession. That the possession to be given by the sheriff is a full and actual possession, and' that where the plaintiff is put into possession under circumstances plainly intimating that such possession is but formal and momentary, and he is accordingly ousted on the same day, such putting into possession is insufficient, and that the writ of possession will not be regarded as fully executed until the sheriff and his officers are gone and the plaintiff is left in quiet possession. (Herman on Executions, 531, 532, 533; Kingsdale v. Mann, 6 Mod. 27; 2 Tidd’s Pr. 1247.)

In the ease now before us there was not even a formal delivery of possession to any one, even for a- moment. The sheriff’s deputy went away without disturbing the tenant, and leaving him in full and undisturbed possession.

The statute (2 R. S. 506) sets the six months’ limitation running against the lessee or his representatives or assigns from the time possession shall have been taken by the landlord under execution, etc. (§ 33), and against a mortgagee of the lease or any part thereof, not in possession, of the demised premises, from the time when execution on the judgment shall have been executed (§ 35); and any person claiming any interest in the lease may file his bill in equity for relief until the time thus limited has expired. In the case of a mortgagee out of possession, who is not chargeable with notice of the proceedings against his mortgagor, stronger grounds exist for requiring that, for the purpose of cutting off his mortgage, the writ of possession should be executed by an open, visible and notorious change of possession, than in the ease of the tenant or the defendant in the judgment; and a merely nominal and secret execution of the writ should not be held sufficient to bar him.

One of the arguments used by the learned trial judge in answer to the plaintiff’s claim that the time should run only from the filing of the return was, that by the law of this State, possession of real estate by a person was as effectual a notice to the world of his rights in the land, as a recorded title. This argument would apply where the landlord was put in visible possession of the land under 'a writ of possession, but it is difficult to see its application where the change of possession is claimed to have been effected by such a proceeding as is shown in the present case.

It cannot be maintained that the return of the sheriff filed on the 14th of November was conclusive as to the execution of the writs of possession on the twenty-seventh of June. (Browning v. Hanford, 5 Denio, 586; Baker v. McDuffie, 23 Wend. 289; Fitch v. Devlin, 15 Barb. 47.)

In Witbeck v. Van Rensselaer (64 N. Y. 27), the court found as a conclusion of fact that the plaintiff had been put in possession under the writ, and this court held that the finding was sustained by the sheriff’s return, together with the facts proved at the trial, which were that the sheriff went on the premises, accompanied by the agent for the assignee of the plaintiff in the ejectment; that the defendant was absent, and the only person in apparent possession was one Carver, the defendant’s hired man ; that the sheriff demanded possession of him, and declared his intention of removing him. He occupied a small house on the farm, and on the demand being made, he signed a written surrender of the premises to the assignee of the plaintiff, and an acknowledgment that he held them as tenant at will of the assignee of the plaintiff. The sheriff and plaintiff’s agent then went on various portions and lots of the farm, and the sheriff assumed to deliver possession thereof to the agent. This court in its opinion relied upon those facts, as well as upon the return, to sustain the finding of the trial court. Here no such facts exist, and the finding shows that the plaintiff’s assignee was never put in possession, but that, on the contrary, the assignee of the defendant was in the actual occupation, and so continued without being in any manner disturbed, or making any attornment.

Many other points were raised on this appeal. The complaint should not have been dismissed as to the five acres and seventeen rods in lot 101, and probably would not have been if the plaintiff had asked for judgment as to those five acres, which he did not do, and we do not, therefore, make that point a ground of reversal. The consideration of the numerous other points raised by the appellant is. rendered unnecessary by the conclusion we have reached in respect to the execution of the writs of possession.

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

All concur.

Judgment reversed.