author: Follett, L:

text:
    Mary D. Hatch and Another, as Executors, etc., of Mart D. Sanford, Deceased, Appellants, v. The Fourth National Bank of the City of New York and Others, Respondents; James H. Fay, Appellant.

      A check or money received in good faith in payment of a debt — no obligation to refund the same to a person defrauded thereof— when it can be followed and recovered.

    A bank receiving in good faitli a check or money, which it applies in payment of its .claims against the person from whom it has been received, is not liable to refund the amount thereof to the owner of the check or money, although the check or money was wrongfully given to the bank by the person to the payment of whose obligation it was applied.
    If a person defrauded of money or securities is able to trace the money, or the avails of the securities, into an account or into property owned by the wrongdoer or his assignee for the benefit of creditors, or into the hands of one who has not received the money or the avails of the securities in good faith and for value, he is entitled to recover the same.
    Appeal by tbe plaintiffs, Mary D. Hatcli and another, as executors, etc., of Mary D. Sanford, deceased, from the whole, and by the defendant James H. Fay from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 12th day of July, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiffs’ complaint upon the merits.
    The defendants George H. Mills, William P. Robeson and Albert H. Smith, for some time before November 15, 1890, were partners under the name of Mills, Robeson & Smith, and were 1 engaged in business as banekrs and brokers. The defendants A. Morton Ferris, William A. Kimball and Floyd Ferris were and are bankers and brokers transacting business under the firm name of A. M. Ferris & Kimball. On November 14, 1890, Mary D. Sanford owned 100 shares of the Adams Express Company, then worth $15,000, held under a certificate issued to her, which on that day she sealed in a.n envelope and deposited with Mills, Robeson & Smith to be safely kept by them until November 17,1890. Upon receiving the certificate, Albert H. Smith, without the knowledge or consent of the plaintiffs’ testatrix or of any of his partners, opened the envelope, abstracted the certificate therefrom and took the same to A. M. Ferris' & Kimball, together with a certificate for eight shares of Chicago, Cincinnati, Cleveland and St. Louis preferred stock, worth $800, which certificate .he raised to eighty shares, of the apparent value of $8,000. At the same time he delivered to said A. M. Ferris & Kimball two Union Pacific first mortgage bonds, of $1,000 each. Smith executed a transfer of the certificate and pledged all of these securities with A. PI. Ferris & Kimball as security for a loan of $20,000, for which sum they gave their cheek, payable to the order of Mills, Robeson & Smith. In the afternoon of November fourteenth Smith indorsed the check in the firm name and deposited it to the credit of the firm with the Fourth National Bank.
    July 2, 1890, the defendant James IT. Fay owned a bond of $1,000, issued by the Plobile and Ohio Railroad Company, which he placed in an envelope on which his name was indorsed and delivered it to Mills, Robeson & Smith for safe-keeping, which said firm safely kept until November 14, 1890, when the defendant Albert IT. Smith feloniously took the bond from the envelope and delivered it to the firm of IT. L. Hotchkiss & Co. as security for the payment of a loan for $10,000, for which sum Mills, Robeson & Smith received the check of Hotchkiss & Co. This check was also indorsed by Pfills, Robeson & Smith, and November 14; 1890, was deposited with the Fourth National Bank.
    On the 7th of November, 1890, Fay was the owner of a bond for $1,000, issued by the Chicago, Burlington and Quincy Railroad Company, which had been left by him with Mills, Robeson & Smith for safe-keeping, and on the date mentioned they pledged it with the Fourth National Bank as collateral security for the loan of $50,000, hereinafter described.
    On November fifteenth Fay delivered to Mills, Robeson & Smith a check, payable to his order, for $400, to be collected for his account, which the firm on that day deposited to its credit with the Fourth National Bank.
    Prior to November 7, 1890, the defendant Georgiana L. Crabb was the owner of 100 shares of the London and New York Investment Company, and of five bonds issued by the International and Great Northern Railroad Company for $1,000 each, which she had deposited for safe-keeping with Mills, Robeson & Smith, who wrongfully, on the 7th of November, 1890, pledged them to the Fourth National Bank as collateral security for the loan of $50,000, hereinafter mentioned.
    At the close of business on November 13, 1890, Mills, Robeson & Smith had to their credit in the Fourth National Bank $20,003.43, and, on the day following, they deposited to the credit of said account $266,642.88, making a total deposit of $286,646.31. Against this the firm drew checks, which were paid, to the amount of $256,327.90, leaving $30,318.41 to the credit of the firm at the close of business November 14,1890. November 15,1890, the firm deposited to the credit of said account $1,774.50, making a total of $32,092.91. On that day the bank paid checks of said firm amounting to $15,772.14, leaving a credit to- the firm of $16,320.77 at the close of business November fifteenth, and, the following day, the bank collected a check for $200, which was also passed to the credit of the firm.
    Mills, Robeson & Smith had for some time been a customer of the Fourth National Bank. On the 17th of April, 1890, they borrowed from said bank $50,000, as security for which- they delivered a note of which the following is a copy:
    “ $50,000. New York, April 17, 1890.
    “ On demand, for value received, the undersigned promise to pay to the Fourth National Bank of the city of New York, or order, at its banking office in New York city, in funds current at the New York Clearing House, with interest from the date hereof, at the rate of five cent per annum, fifty thousand dollars, having deposited with the said bank, as collateral security for the payment of this and any other liability or liabilities of the undersigned to the said bank, due or to become due, or which may hereafter be contracted or existing, the following property, viz.: As per mem. on envelope of this date of an estimated market value of $61,600, and the undersigned agree to deliver to the said bank additional securities to its satisfaction should the market value -of the said securities as a whole suffer a decline of five per centum, and also hereby give to the said hank a lien for the amov/nt of all the said liabilities upon all the property or securities given tonto or left i/n the possession of the said hank by the undersigned, and also upon any bala/nce of the deposit account of the undersigned with the said Hank.

      “ On the non-performance of this promise, or upon the non-payment of any of the liabilities above mentioned, or upon the failure of the undersigned forthwith, with or without notice, to furnish satisfactory additional securities in case of decline as aforesaid, then, and in either such case, full power and authority are hereby given to said bank to sell, assign and deliver the whole of the said securities, or any part thereof, or any substitutes therefor, or any additions thereto, or any other securities or property given unto or left in the possession of the said bank by the undersigned for safe-keeping or otherwise, at any brokers’ board or at public or private sale, at the option of the said bank or its president or cashier, without either advertisement or notice, which are hereby expressly waived. If such securities or property are sold at public sale the said bank may itself purchase the whole or any part thereof, free from any right of redemption on the part of the undersigned, which is hereby waived and released. In case of sale for any cause, after deducting all costs and expenses of every kind for collection, sale or delivery, the said bank may apply the residue of the proceeds of the sale or sales so made to pay one or more or all of the said liabilities to the said bank, as it or its president or cashier shall deem proper, whether then due or not due, making proper rebate for interest on liabilities not then due, and returning the overplus,.if any, to the undersigned, who agree to be and remain liable to the said bank for any deficiency arising upon such sale or sales. The undersigned do hereby cmthorize and empower the said bank, at its option, at any time, to appropriate and apply to the payment and, extinguishment of any of the above-named obligations or liabilities, whether now existing or hereafter eontraeted, any and all moneys now or hereafter 'in the hands of the said bank, on deposit or otherwise, to the credit of or belonging to the undersigned, whether the said obligations or liabilities are then due or not due.

    “ MILLS, ROBESON & SMITH.”
    Among the securities deposited as collateral to said note were the five International and Great Northern bonds of the value of $5,000, which were the property of Georgiana L. Orabb, and a bond of $1,000, issued by the Chicago, Burlington and Quincy Railroad Company, which was the property of James IT. Fay.

      On tlie 7th of November, 1890, Mills, Robeson & Smith borrowed $5,000 of said bank, giving a note which is a copy of the one hereinbefore set forth, except as .to date, amount, rate of interest and securities pledged. With this note there were pledged 100 shares of the London and New York Investment Company, which were the property of Georgiana L. Crabb.
    On the 15th of November, 1890, Mills, Robeson & Smith made a general assignment for the benefit of creditors to defendant William Watson, they having for several months previous thereto been insolvent.
    On the 17th of November, 1890, the Fourth National Bank demanded of Mills, Robeson & Smith that they pay their aforesaid notes — one for $50,000 and the other for $5,000 — together with the interest due upon them, which they failed to do, and, on the same day, the bank charged the amount due on them to the account of Mills, Robeson & Smith. The demand was made and the notes charged before the bank had notice or knowledge that any of the parties to this action, other than Mills, Robeson & Smith, and Watson, their assignee, claimed to have or had any interest in the securities or in the amount to the credit of said firm. Afterwards, and before December 5, 1890, the bank sold all of the securities pledged as security for said two notes, except the bond of the Chicago, Burlington and Quincy Railroad Company,, owned by James H. Fay. From the sale of the securities pledged the bank realized $11,289.38, which added to $16,320.77, the balance to the credit of the account of Mills, Robeson & Smith, and the check for $200, which was collected November 16, 1890, amounts to $57,810.15. After deducting the amount due on said two notes there remained in the hands of the bank, to the credit of the account, $2,361.19, and the bond issued by the Chicago, Burlington and Quincy Railroad Company. Among the securities sold by the bank were 100 shares of the London and New York Investment Company and five bonds of the International and Great Northern Railroad Company, which belonged to Georgiana L. Crabb. By the judgment she was awarded $2,361.19, the amount standing to the credit of the account, and she does not appeal. The judgment also awarded to James H. Fay the bond for $1,000, issued by the Chicago, Burlington and Quincy Railroad Company, but it did not award him §030, the value of the bond of the Mobile and Ohio Railroad Company, pledged by Mills, Robeson & Smith with IT. L. Hotchkiss & Co., or for the check for $400 deposited by him with Mills, Robeson & Smith November 15, 1890, and by them, on the same day, deposited with the bank. Fay appeals from that part of the judgment denying his claim to recover these two items. It was ■also adjudged that the plaintiffs were not- entitled to recover any sum as against the bank, and the complaint was dismissed, with costs. The plaintiffs appeal from the whole of the judgment.

      George W. Wingate, for the appellant.

      Hamid Wilcox, for Fourth National Bank, respondent.

      Henry II. Mam,, for Georgiana L. Crabb, respondent.
   Follett, L:

The appeal of the-plaintiffs will be first considered, and it will be convenient to separate the facts relating to their claim from the facts relating to the claim of Fay, the other appellant.

November 15, 1890, the plaintiffs’ testatrix was the owner of 100 shares of the Adams Express Company, which were worth $15,000, for which she held a certificate, which she sealed in an envelope, and •on that day delivered to Mills, Robeson & Smith for safe-keeping. On the same day Mills, Robeson & Smith borrowed $20,000 of A. M. Ferris & Kimball, receiving their check for that amount, which was on that day cleposited with the Fourth National Bank and credited to the account of Mills, Robeson & Smith. Smith, one of the members of the firm, unlawfully opened the envelope in which the certificate of the plaintiffs’ testatrix was sealed, abstracted it and feloniously transferred it, with eight preferred shares of the ■Chicago, Cincinnati, Cleveland and St. Louis Railroad Company as collateral security for the loan, to A. M. Ferris & Kimball, who took the securities in good faith and without notice of the rights of the plaintiffs’ testatrix-, and the’bank received the check in due course ■of business and in good faith and without notice that the loan had been obtained by the felonious acts of Smiih.

It should be borne in mind that Mills, Robeson & Smith did not assume to sell to A. M. Ferris & Kimball the shares in the Adams Express Company, and no part of the $20,000 loaned by A. M. Ferris & Kimball to Mills, Robeson & Smith was derived from the shares, but from the note of the borrowers secured in part by the shares. The shares were not transferred to the bank, nor did any money derived from a sale of them pass to the bank, and we know of no authority for the position that a bank receiving in good faith a check or money under such circumstances, which has been applied in payment of its claim against the person from whom it was received, can be made liable to refund the amount to the owner of the security wrongfully pledged as collateral to the person or firm loaning the money to the wrongdoer. The right of the bank is the same as it would have been had Mills, Robeson & Smith received payment of the check for $20,000 from the drawee and afterwards deposited the money with the bank. The authorities supporting the right of the bank to the avails of the check are clear and numerous. (Justh v. Bank, 56 N. Y. 478; Stephens v. Board of Education, 79 id. 183; Goshen Nat. Bank v. State, 141 id. 379; Straus v. T. N. Bank, 122 id. 379; School District in Greenfield v. First Nat. Bank, 102 Mass. 174.)

Hutchinson v. The Manhattan Co. (9 Misc. Rep. 343) is quite different from the case at bar. In that case the plaintiff held a bill, payable to his order, which he indorsed, Pay to W. L. Patton & Co. or order,” and delivered it to the indorsee for collection only, who indorsed it, “ For deposit to the credit of W. L. Patton & Co.,” and delivered it to the defendant with which they kept an account. The defendant refused to credit the draft to W. L. Patton & Co., but received it for collection. On the next day ~W. L. Patton & Co. made a general assignment, and, on the day following the assignment, the defendant collected the draft and then credited the avails thereof to the account of ~W. L. Patton & Co.

The Manhattan Company never became the owner of the bill, for it refused to credit it, but received it for collection only, and before it was collected "Wl L. Patton & Co. made an assignment for the benefit of creditors, and it was held that the lien given the Manhattan Company by ~W. L. Patton & Co. upon all securities given into, or left in their possession by W. L. Patton & Go., did not give the bank a lien upon a draft received for collection only. Had the Manhattan Company credited W. L. Patton & Co. with the draft on the fourth of May, when delivered, an entirely different question would have been presented.

It seems quite unnecessary to distinguish from. this case those cases in which plaintiffs defrauded of money and securities are able to trace the money or the avails of the securities into an account, or into property owned by the wrongdoer or his assignee, for the benefit of creditors, or into the hands of one who has not received the money or the avails of the securities in good faith and for value. It seems to us clear that the plaintiffs failed to establish any right to' recover from the bank any part of the moneys which it had applied in payment of the indebtedness of Mills, Robeson & Smith to it,, and the rule .that defeats the plaintiffs’ action is fatal to the claim of James II. Fay.

The question now arises, who has the better right, the plaintiffs- or Georgiana L. Crabb, to the balance, $2,364.19, standing to the credit of Mills, Robeson & Smith ?

As before stated, none of the avails of the shares of the plaintiffs’ testatrix were traced to the bank, for her shares were not sold by the wrongdoers. On the contrary, the securities of Georgiana L,' Crabb were pledged by the wrongdoers to the bank, which securities were sold by it after the failure of Mills, Robeson & Smith, and the avails were credited to their account. She directly traced the avails of her securities into the possession of the bank and into the account. As between her and the plaintiffs she has established the right to the balance standing to the credit of the firm.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Eollett, J.: O’Brien, J.:

license: Public Domain

text:
    John Gray and Another, Respondents, v. The Central Railroad Company of New Jersey, Appellant.

      Executoi'y contract foi' the sale of specific personal property — breach thereof by the vendee — remedies of the vendor — • measure of damages.

    Upon the failure of a vendee to perform an executory contract for the purchase of specific personal property, the vendor may sell it and recover the difference between tne contract price and the price for which it is sold, or he naay retain the property and recover his damages for the breach of contract, and where the vendor elects to sue for the damages (claiming to hold the property as his own) the damage is the difference between the contract price and the actual value of the property at the time of the refusal of the vendee to accept it.
    The vendor of personal property has three remedies against the vendee in default: He may store the property for the buyer and sue for the purchase price, or he may sell the property as agent for the vendee and recover any deficiency resulting, or he may keep the property as his own and recover the difference-between the contract price and the market price at the time and place of delivery. These three remedies are not concurrent, but upon default the person injured must make his election, and the remedy which he has elected to pursue must be determined from the complaint in the action brought by him. (Per O'Brien, J.)
    Appeal by the defendant, The Central Railroad Company of New Jersey, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 3d day of July, 1894, upon the verdict of a jury/ rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 26th day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Robert W. De Foi'est and Robert Thorne, for the appellant.

      Jacob F. Miller, for the respondents.
   Eollett, J.:

This action was brought to recover damages for the alleged failure of the defendant to perform an executory contract for the -purchase of a steamboat. On the l'Tth of December, 1866, the parties entered into the following contract:

“ Office of tiie President,
“ Central Railroad of New Jersey, 103 Liberty St.
“ John Taylor Johnston, PresH.
“New York, Peo. Vlth, 1866.
“The Central Railroad Company of New Jersey agree to buy the steamboat £ John Adams,’ from J. & R. J. Gray, for the sum of fifteen thousand dollars cash, providing, upon trial, they are satisfied with the soundness of her machinery, boilers, etc.; and the said J. & R. J. Gray agree to sell the above boat for the above price.
“ JOHN TAYLOR JOHNSTON,
Prest.
« J. & R. J. GRAY.”
The defendant refused to take the boat and pay the price agreed. After the refusal of the defendant to accept it the plaintiffs evidently contemplated selling it and suing the defendant for the difference between the contract price and the amount that the boat should bring when sold.
On the 9th of January, 1867, they gave the following notice:
“ Law Offices of Miller & Peet, i
“192 Broadway, cor. John St. j
“New York, Jem. 9, 1867.
¿í The Central Railroad Compemy of PTew Jersey:
Take notice, that the steam ferryboat John Adams will be sold at public auction at the Merchants’ Exchange salesrooms, 111 Broadway, N. Y., on 22d instant, at 12 m., by E. H. Ludlow & Co., auctioneers, and that you will be held liable for any difference between the amount of said sale and the amount for which said boat was sold to you by us, with all costs, expenses and charges.
“ Yours,
“J. &R. J. GRAY,
“ Per Miller & Peet,
Attys.”

The boat was not sold at auction, pursuant to this notice, but on the 22d of April, 1867, it was sold at private sale to Samuel Lap-ham for $8,000.

Upon the failure of a vendee to perform an executory contract for the purchase of specific personal property the vendor may sell it and recover the difference between the contract price and the price for which it is sold, or he may retain the property and recover his damages for the breach, the measure of which is the difference between-its actual value at the time of the breach of the contract and the contract price. (Dustan v. McAndrew, 44 N. Y. 72; Hayden v. Demets, 53 id. 426; Bridgford v. Crocker, 60 id. 627.)

This action is for the recovery of damages for the failure of the defendant to take and pay for the vessel. On the trial but little evidence was given bearing, upon the question of the actual value of the vessel at the túne it is asserted the defendant should have received it. It was shown that the plaintiffs sold the boat April 22, 1867, for $8,000, and, perhaps, the vessel was so described that there was sufficient evidence to authorize the jury to determine its actual value, but that question was not submitted to them.

One of the plaintiffs testified: “ Q. Didn’t you testify on the former trial, Mr. Gray, in response to the question : ‘ Did you not regard the boat at that time ’ (referring to the time of this transaction) as reasonably worth $15,000 ? ’ did you not testify, ‘ I regard her as worth more?’ A. What time have your reference to, Mr. De Forest ? Q. I have reference to about the time of this trial trip, when she was ■ laid up in Hoboken. A. What I meant when I made the response to that question was that when she was sold to the New Jersey Central railroad she was worth more than $15,000 ; she was sold below her value ; that was the meaning of that answer. Q. And that is what you mean now ? A. That is what I mean now. Q. And that is your present opinion ? A. That is my own judgment.”

In this case under the complaint the measure of damages was the difference between the contract price and the actual value of the vessel. In instructing the jury on the question of damages the court charged that if the plaintiffs were entitled to a verdict they were entitled to the difference between the contract price — $15,000 — and $8,000, the amount for which they sold the boat, with interest, for which sum a verdict was rendered; To this instruction the defendant excepted and asked the court to charge:

“ 10. That the measure of damages is the difference between contract price ap.d the actual value of the boat at the time of the refusal to take her.”
13. That if on the evidence the boat appears to have been worth the contract price at that time, then plaintiffs cannot have a verdict for more than nominal damages.” These requests were refused and the defendant excepted. By these requests the attention of the court was specifically called to the true rule of damages applicable to the issue in this case, and it was error to instruct the jury that the measure of damages was the difference between the contract price and the price for which the boat was subsequently sold.

Eor this error the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., concurred.

O’Brien, J.:

The plaintiffs, against the persistent objection and exception of the defendant, were permitted to recover the difference between the contract 2>rice and the 2>rice that the steamboat brought upon a resale, and this recovery is sought to be sustained upon the authority of Van Brocklen v. Smeallie (140 N. Y. 70, 75). That case lays down no new rule of damages, but restates what has been frequently held, as shown in the cases referred to by Mr. Justice Follett. It must be regarded, therefore, as settled law, as said in Van Brocklen v. Smeallie, that “ the vendor of personal property has three remedies against the vendee in default: The seller may store the property for the buyer and sue for the purchase price, or may sell the property as agent for the vendee and recover any deficiency resulting; or may keep the property as his own and recover the difference between the contract price and the market price at the time and place of delivery.”

These remedies are not concurrent, but upon default the person injured must make his election, and the remedy which he has so elected must be determined from his complaint. Here the plaintiffs, as shown by the complaint, elected to treat the property as their own, and brought their action for damages, and under such complaint the only damages recoverable are the difference between the contract price and the market value. Notwithstanding such election, however, and without proper allegations in the complaint, the plaintiffs were permitted to sue upon one theory and recover upon another.

I concur, therefore, with Mr. Justice Follett that, under the complaint ancl against tlie objection of the defendant, the plaintiffs could not recover tlie difference between the contract price and the price which tlie steamboat brought upon a resale, and that for this reason tlie judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Judgment and order reversed, new trial granted, with costs to appellant to abide event.


author: Van Brunt, P. J.:

text:
    Augustus D. Shepard, Respondent, v. The Metropolitan Elevated Railway Company and Another, Defendants. Western Union Telegraph Company, Appellant.

      JSasements — severance of, from the realty by a reservation in a deed thereof ■— such reservation gives the grantor no right of action — he cannot maintain an action far the taking of the easements.

    The easements appurtenant to real estate, taken for the purposes of the operation and maintenance of an elevated railroad upon the street upon which such, real estate abuts, cannot be severed from the principal estate so as to afford to the party in whose favor they are attempted to he reserved any right of action; a reservation of such easements, contained in a deed of such premises, leaves no right of action in favor of the grantor of the property.
    An action must he brought in' the name of the real party in interest, and the Action of one party bringing an action in his own name to the use of another is no longer permitted.
    A conveyance absolute in form, Arsfc passing all the estate therein described, together with the appurtenances, and then containing a reservation to the grantor of the easements taken by reason of the operation and maintenance of an elevated railroad, does not reserve to the grantor any right of action, nor can he enforce an action as to future damages against such railroad in his own name, nor can he compel his grantee to prosecute such an action for his beneAt.
    The right to recover the damages to a thing, the title to which has been parted with, cannot he reserved.
    Appeal b.y tlie "Western Union Telegraph Company from an order of tlie Supreme Court, made at tlie New York Special Term and entered in tlie office of the clerk of the county of New York on the 25th day of June, 1894, denying the petition of the appellant to be made a party to the action.

      Pttsh Taggart, for the appellant.

      W. Q. Pcdlcha/m, for the respondent.
   Van Brunt, P. J.:

This action was brought to obtain au injunction restraining the defendants from the further maintenance and operation of the defendants’ elevated railway in front of premises on Trinity place, together with damages for the maintenance and operation of said railroad in the past. The plaintiff acquired his title to the premises on or about the 29th of March, 1889, by a deed which contained these words: Damages to said premises arising by reason of the elevated railroad as now constructed and operated in front of said premises have been reserved to the "Western Union Telegraph Company, a former owner.”

The reservation referred to was in the following language: “ The party of the first part hereto (the petitioner) reserves all claim or right of action against the Metropolitan and Manhattan Elevated Railroad Companies, or either of them, for any and all injury or damage dene to the aforesaid property, or to' the value or uses thereof in the .past, present or future, by reason of the construction and operation of the elevated railroad in front of the said premises as they are now constructed and operated.”

The appellant presented its application to the court to be made a party to the action, and in its petition alleged facts which it claimed would entitle the petitioner, if it were necessary, to a reformation of these deeds by the insertion of further language reserving to the petitioner any sum of money that might be appraised or agreed upon under the power of eminent domain as compensation for the extinguishment of the claims and rights of action above mentioned.

The petition further represented that by reason of the fact that the easements taken by the defendants were inseparable from the land to which they were appurtenant, the legal title thereto had passed to the plaintiff, subject, nevertheless, to the said reservation, and were held by him in trust for the petitioner, to the extent necessary to carry into effect thejntent of said reservation ; that plaintiff repudiated the said trust and refused to recognize the interest of the petitioner in the subject of the action and was acting in hostility thereto; that petitioner was thereby exposed to an injury for which no adequate relief could be obtained by a separate action.

The prayer of the petition was that the petitioner be made a party plaintiff in the action and control the prosecution thereof, and receive tbe fruits thereof, or, in the alternative, that petitioner be made a party defendant, and have leave to interpose an answer, and to seek such relief against the other parties to the action, in respect to the subject-matter thereof, as in law and equity it might be entitled to receive.

The motion was denied- upon the merits, and from the order thereupon entered this appeal is taken.

It is conceded by the counsel for the appellant that the petitioner has no cause of action by itself against the defendants for the damages sustained by the erection and operation of their elevated railroad by reason of the reservation contained in the deed above referred to. But it is urged that the plaintiff: in this action, having taken title with notice of such reservation, took the same subject to a trust to enforce the pétitioner’s claim for damages which was reserved.

It seems to us that there are several difficulties in the way of the establishment of the petitioner’s claim upon any ground whatever. It lias been distinctly held that these easements cannot be severed from the principal estate so as to form the basis for the establishment of any right. It has been further held, as is conceded by the appellant, that such a reservation as was contained in the appellant’s deed left no right of action in favor of the grantor in the deeds containing such reservation.

It is a well-established rule in our jurisprudence that an action must be brought in the name of the real party in interest, and the fiction of one party bringing an action in his own name to the use of another is no longer permitted. Yet the necessary result of the appellant’s contention is, that the plaintiff is to maintain this action to his use as the real party in interest. If the appellant’s contention is correct, it is the proper plaintiff, and the present plaintiff is not. Now, it admits that it has no cause of action as against the defendants, because of its conveyance of the premises to which the easements forming the subject-matter of this action are appurtenant. And this position is emphasized by the admission of the appellant, that adequate equitable relief by the recovery of permanent damages cannot be had except by tendering to the railway companies a clear legal title to the easements taken. Now, where in the contract of any of the predecessors in title of the plaintiff is there any obligation upon their part to convey anything to anybody at the request and dictation of the appellant ? There is no such agreement. The appellant relied upon its reservation, and such reservation imposed no duty upon its grantee. Its grantee got that which was granted, which seems to have been the substance, and the appellant has reserved that which has proven to be the shadow; and now it seeks to clothe this shadow with a material body by compelling its grantee to do something which he has nowhere covenanted or agreed to do.

Our attention is called to the case of McGean v. The Manhattan Railway Company (133 N. Y. 9). But that seems to have no bearing upon the case at bar, because the sole ground upon which the plaintiff iri that case had any standing in court or any claim for damages, was because he owned the title to the center of the street, and expressly excepted from the grant the lands contained in the street. The court expressly stated that the grantee of the plaintiff took his conveyance with a reservation to the plaintiff of the fee of the street and the permanent damages to the adjoining property, and that, presumably to the extent of the rights thus reserved, the cost of the property to him had been proportionately diminished; and that he was estopped by the reservation in his deed, which was to be given the same effect as a direct grant, from asserting any title to any part of the cause of action or to the rights which the defendants would acquire under the judgment which would put them in privity of title with the plaintiff. There the fee of the land was reserved upon which the easement existed.

In the case of Kernochan, v. N. Y. El. Ry. Company (128 N. Y. 559) it was expressly held that it is not possible to except easements from the operation of the conveyance so as to preserve the title thereto unimpaired in the original owner ; that they are incapable of a distinct and separate ownership, and the owner of a lot ■cannot reserve them upon a sale, but they must of necessity pass to the purchaser as appurtenant to the premises, and with them passes to the purchaser also the right to any remedy for their invasion.

In the case at bar there is no claim that any part of the street was reserved out of .this grant by the appellant as was the fact in the case of McGrean. It is a conveyance absolute, passing all the ■estate together with its appurtenances, and then containing this reservation, which the courts have held cannot be enforced as to future damage, because it is an attempt to reserve a right of action for damage to a thing the title to which has been parted with.

We are of opinion, therefore, that no trust relation was established between the appellant and its grantees, and that under no principle of law can this appellant compel this plaintiff to sue in his name for its benefit.

The order should be affirmed, with costs.

Follett and O’Brien, JJ., concurred.

Order affirmed, with costs.


author: Yan Brunt, P. J.:

text:
    Max Hartman and Others, as Administrators, etc., of Isaac Hartman, Deceased, and Others, Respondents, v. The Manhattan Railway Company, Appellant.

      Denial of a motion to compel an election not accompanied by a demand for a trial by jury — when unavailing on appeal — •waiver of the right to a trial by jury.

    The denial oí a motion, made by the defendant to compel the plaintiff to elect whether he would proceed with the trial of the'action on the theory that the defendant’s acts were in the nature of a continuing trespass, or that they were acts in the nature of a continuing nuisance, if unaccompanied by a demand for a trial by juiy, is of no avail to secure a reversal of the judgment rendered in favor of the plaintiff upon the decision of the court, as it is within the power of the court, where no rights of a defendant are infringed, either to grant or not to grant the motio.n to compel such election.
    Hnless a defendant is entitled to, and actually demands, a jury trial, no rights are infringed by the denial of the motion to compel an election.
    Where no demand is made for a trial by jury, upon the trial of an action before the court, the right to a jury trial is waived, under subdivision 4 of section 1009 of the Code of Civil Procedure.
    Appeal by tbe defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 11th day of June, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

      Julien T. I)avies-mid Tí. L. Maynard, for the appellant.

      Henry G. Atwater and G. I. Pashley, for the respondents.
   Yan Brunt, P. J.:

This action was commenced in October, 1890, by one Isaac Hartman to procure an injunction against the further maintenance and operation of tbe elevated road in front of tbe premises No. 340 .Bowery, of which he was the owner, and to recover damages for the trespasses already committed by such maintenance and operation. Isaac Hartman died intestate on the 28th of March, 1891, and thereafter the action was revived in the names of his administrators and the heirs at law who are the present plaintiffs. On the 24th of June, 1891, the heirs at law conveyed the premises to one Mercadante, and in January, 1892, Mercadante also commenced an action for damages. The recovery in this action was allowed for the damages sustained by the operation of the elevated railroad from a date six years prior to the commencement of this action down to June 24, 1891, the date of the conveyance of the premises by the heirs of said Isaac Hartman- to said Mercadante.

Upon this appeal it is urged that the court erred in refusing to dismiss the complaint as to the equitable cause of action and in refusing to direct that the issue as to past damages be sent to the Circuit for trial by a jury. Without discussing the question as to- the right of the defendant to a trial by jury upon the subject of past damages, the right to recover fee damages having been lost by a conveyance of the premises, it is sufficient to say that no such question is raised by the record. We fail to find any demand for a jury trial. At the opening of the case the defendant’s counsel moved to dismiss the complaint upon the gtound that it did not state facts sufficient to constitute a cause of action. This was a motion to dismiss generally. The counsel for the defendant then moved to compel the plaintiffs to elect as to whether they would proceed with the trial of the action on the theory that the defendant’s acts were in the nature of a continuing trespass, or acts in the nature of a continuing nuisance. Such a demand of election unaccompanied by a demand for a trial by jury is of no avail. It was within the jurisdiction of the court, where no rights of the defendant were infringed, either to grant the motion for election or not; and unless the defendant was entitled to and demanded a jury trial no rights were infringed by the denial of the motion to compel an election. No such demand accompanied the motion for an election.

The defendant’s counsel then moved to compel the plaintiffs to elect as to whether they would proceed with the trial of this action upon the theory that they owned the fee in the street in front of the premises in suit-, or whether they had only an easement therein. These motions having been denied the trial proceeded, and our attention has not been called to, and we have been unable to find, any place where a demand for a jury trial was made in respect to past damages prior to the trial of the issues upon that point.

When the plaintiffs rested the defendant again moved to dismiss the complaint upon the ground that the plaintiffs had failed to prove facts sufficient to constitute a cause of action. Then the record says : Counsel for the defendant renewed the motion to send this case to the Circuit on the ground that it appears that the plaintiff has not the title to the property.” But no such motion had been previously made so far as we have been able to find; and even at this time no demand for a jury trial was made. It is clear, therefore, that the record contains no demand upon the part of the defendant for a jury trial, even if it was entitled to the same. Under these circumstances it seems that, by subdivision 4 of section 1009 of the Code of Civil Procedure, the right to a jury trial was waived.

It follows that the judgment appealed from must be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.


author: Parker, J.:

text:
    Anthony Dey, as Ancillary Executor, etc., of Charles S. Scott, Deceased, Plaintiff, v. Ferdinand Greenebaum, Defendant, Impleaded with Others.

      Landlord and tenant — presumption from the possession by a third person of the leased premises — effect of the reservation of a right of re-entry —request for the direction of a verdict, after one for the submission of a specific question.

    Where a person, other than a lessee, is shown to be in the possession of leased 'premises, paying rent therefor, the law will presume that the lease has been assigned to him. Such presumption may be rebutted by showing that a different relation exists between the person in possession of the leased premises and the lessee, such as that of sub-tenant, agent or occupant of a part of the premises under a license from the lessee, who retains the possession originally given to him by his lessor.

      Where the lessee reserves to himself an interest in the premises, such as the right of re-entry for breach of covenants, there is no such devolution of title as will create a privity of estate between the original lessor and the sub-lessee.
    Where a lease prohibits an assignment or underletting of the leased premises, the presumption is that a person, other than the lessee, in the possession thereof, occupies the same lawfully, and, in the absence of evidence to the contrary, it may be assumed that he occupies-under the lessee pursuant to a license.
    The request by the defendant in an action that a verdict be directed in his favor, does not submit all questions of fact to the court, where, before the plaintiff asked for a direction of a verdict in his favor, and before the court had passed upon the question, the defendant asked leave to go to the jury upon a specific question of fact.
    Motion by the defendant, Ferdinand Greenebaum, for a new trial on a ease containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court on the 13th day of June, 1894, after a trial at the New York Circuit.

      L. S. Jlulse, for the plaintiff.

      Charles Goldzier, for the defendant.
   Parker, J.:

Judgment was taken against two of the defendants, Bernard C. Cunningham and Max J. Marks, on default. The third defendant, Ferdinand Greenebaum, answered.

The action is brought to recover judgment for the alleged breach of covenants contained in a lease of premises made by plaintiff’s testator to Cunningham and Marks.

The provision in the lease relating to such covenants is as follows: “ The said parties of the second part hereby covenant and agree that for and in consideration of the reduced rent at which said premises are leased, and the allowance of two months before the payment of rent shall commence, to take the said premises in their present condition, and at their own sole cost and expense to put said premises in substantial, thorough and perfect repair by repairing the brick work where necessary, putting an entire new roof (including beams and planking) on extended part of building, repair and put in good order the floor of the second story of said building and a -new floor in main part of first story of said building (over cellar). Also, to put new leader from the roof of said building, and connect same with sewer pipe in cellar. And also, to make and do any and all other repairs which may be necessary or required. And to keep the said premises in thorough repair during the continuance of this lease at their own sole cost and expense without calling upon or requiring the party of the first part to do anything.”

The defendant Greenebaum was not a party to the lease. After its execution, Cunningham and Marks entered into possession of the premises, which were used by them in their business, which was that of manufacturing extracts and sugar coloring. They formed a partnership with James M. Rorke, who put in the business a certain amount of money, advanced to him by the defendant Greenebaum. Subsequently Cunningham and Rorke went out of the business, and Greenebaum purchased an interest therein. He was at the time, and continued to be, engaged in other business, and, according to his testimony, he never saw the building which was the subject of the lease, nor the lease itself, which he says was never spoken of to him by either of the lessees. But the plaintiff has recovered a judgment against him on the ground that the covenant to repair contained in the lease is one running with the land, which would bind an assignee upon an assignment of it to him, defendant being held to be such an assignee because of his alleged possession of the premises.

The rule undoubtedly is, that where a person other than the lessee is shown to be in possession of leased premises, paying rent therefor, the law will presume that the lease lias been assigned to him. (Armstrong v. Wheeler, 9 Cow. 88; Bedford v. Terhune, 30 N. Y. 453; Stewart v. L. I. R. R. Co., 102 id. 601.

This presumption maybe overthrown by showing that a different relation exists between himself and the lessee, such as sub-tenant, agent or occupant of a part of the premises under a license from the lessee who retains the possession originally given him by his lessor, etc. It has been held that where the lessee reserves to himself an interest in the premises, such as the right of re-entry for a breach of covenants, there is no such devolution of title as will create a privity of estate between the original lessor and sub-lessee. (Ganson v. Tifft, 71 N. Y. 55; Collins v. Hasbrouck, 56 id. 157.)

In all of the cases to which our attention has been called, in which the presumption of assignment was said to arise, the original lessee had gone out of possession, in which he was succeeded by the person sought to be charged as assignee.

In this case the premises were leased to Max J. Marks and Bernard C. Cunningham, who entered into possession, and Marks thereafter continued in possession until the end of the term.

The lease prohibits an assignment or underletting, and since the presumption is that the defendant occupied lawfully (Frank v. Erie & Gen. Val. R. R. Co., 122 N. Y. 197), it would seem to be proper to assume, in the absence of evidence to the contrary, that he occupied under both tenants in common pursuant to a license.

The defendant Greenebaum’s relation to the matter, as told by himself and Rorke, was that Rorke, desiring to go into business with Marks and Cunningham, Greenebaum advanced him money for the purpose, and subsequently purchased his interest, Cunningham and Rorke going out. That nothing was said to him about a lease; that he never saw it or the premises covered by it, his personal attention being given to another business, and that the lease was not in fact assigned to him.

Biit assuming that Greenebaum’s membership in a firm occupying premises leased by one of the firm and another person prior to Greenebaum’s becoming connected with such lessee in business, raised a presumption of an assignment of the lease to Greenebaum, then, we think, defendant’s evidence presented a question for the jury as to the character of the occupancy.

It has been repeatedly held that the presumption of an assignment arising from occupancy may be rebutted. (Welsh v. Schuyler, 6 Daly, 412; Quackenboss v. Clarke, 12 Wend. 555; Astor v. Lent, 6 Bosw. 617; Mason v. Breslin, 40 How. 436.)

The case of Frank v. Erie & Gen. Val. R. R. Co. (supra) is cited by the plaintiff as in conflict with these authorities. The court said : “ It is claimed that the supposed assignee may rebut this presumption by proving that he never had any assignment, and there is authority for the position. This, we think, is open to question, provided proof of that fact involves proof of entry without right or as a trespasser.”

The court intimates that these cases might, perhaps, be questioned in so far as they may be said to authorize proof of a wrongful entry in rebuttal of the presumption. But the suggested limitation lias no application in this case. The evidence offered by the defendant tends to show an occupation conjointly with one of the original lessees, and in view of their relations as described in the evidence presumptively with his permission.

Plaintiff’s first point is that the defendant’s counsel, by asking for a direction of a verdict in his favor, submitted all questions of fact to the court.

But that rule has no application to this case, because before the plaintiff had asked for a direction in his favor, and necessarily before the court had passed on the question, the defendant asked leave to go to the jury “upon the question of fact whether or not the defendant had an assignment of this lease and assumed any of its obligations.”

The court denied the motion and allowed an exception.

After that the plaintiff asked for and obtained a direction in his favor.

The defendant’s exceptions should be sustained and a new trial ordered, with costs to the defendant to abide the event.

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

Defendant’s exceptions sustained, new trial ordered, with costs to defendant to abide event.


text:
    Samuel W. Milbank, as Receiver of the A. de Riesthal Company, Appellant, v. Helene de Riesthal and Another, Respondents, Impleaded with Others.

      Bffeat of section 48 of chapter 688 of the Lcnos of 1893 —preferences by an insolvent corporation — suffering judgment to be tabeen against it with an intent to give a preference — promissory note of a corporation, valid, though not signed as required by its by-laws —■evidence of intent to prefer, sufficient to invalidate a judgment.

    The first portion of section 48 of chapter 688 of the Laws of 1893 absolutely prohibits the transfer of any corporate property to an officer, director or stocknolder of a corporation, which shall have refused to pay any of its obligations when due, upon any other consideration than the full value of the property paid in cash. This portion of the section has for its object the prevention of preferences to a* particular creditor or creditors over other creditors of a corporation, which is either insolvent or the insolvency of which is imminent. It does not declare invalid all transfers of property or payments made to creditors of an insolvent corporation, but only such as are made with the intent of giving a preference to certain creditors over others.
    While such statute seeks to accomplish the end aimed at by imposing a restraint upon the action of the corporation, its officers, directors and stockholders, nevertheless the consequences of action on their part, in contravention of the statute, is visited upon the creditor whose preference is attempted by them.
    The statute, however, does not attempt to restrain creditors of a corporation from pursuing the remedies which the law affords to procure satisfaction of their claims. The vigilant creditor is not threatened by it with certain loss of the expense of legal proceedings, if at the time of the entry of judgment the debtor corporation should be insolvent, or its insolvency imminent. He is not required to determine at his peril the question of the insolvency or threatened insolvency of the debtor corporation before commencing legal proceedings or entering the judgment in which they may result.
    When an act is done by an individual, the consequences of which are known beforehand, such person will be held, by such act, to have intended the accomplishment of such consequences.
    Where certain promissory notes were executed by the officers of a corporation, who had been accustomed to sign its notes, namety, its president and treasurer, and the money procured thereon was borrowed for the corporation by its president, went into its treasury and was used for its benefit, such notes are valid and enforcible against the corporation, although the by-laws of the corporation provided that they should be signed by the secretary thereof.
    It is sufficient to invalidate a judgment recovered by a creditor against a corporation, if the corporation suffers it to be taken with the intent of giving a preference to such creditor.
    The mere fact that the officers of the corporation do not oppose a creditor in his effort to get a judgment against the corporation, where there exists no defense to the action, but remain passive, is not alone sufficient to create the inference that the judgment was suffered with the intent of giving such creditor a preference. But the inference may arise from evidence of an affirmative character, tending to show the existence of such a desire on the part of the officers of the corporation, having knowledge of its situation. Such evidence may consist of acts done or words spoken by the officers of the corporation, under such circumstances as to manifest a wish or plan to create a preference in behalf of the prosecuting creditor.
    A conversation had by a witness with the president of the corporation, in the absence of the judgment creditor, wherein it appeared that the president was attempting to secure a settlement of the business affairs of the corporation with its creditors on a basis which would secure to the judgment creditor a preference, is admissible in evidence to show such desire, wish or plan on the part of the corporation and its officers.
    Appeal by the plaintiff, Samuel W. Milbank, as receiver of the A. de Riesthal Company, from'a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 21st day of May, 1894, upon the decision of the court rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.

      George Putnam /Smith, for the appellant.

      Ohauneey S. Truaas and Herbert G. Hull, for the respondents.
   Parker, J.:

The object of this suit was to obtain a judgment declaring void certain judgments obtained by the defendants, Helene de Riesthal and William C. Bowers, against a corporation known as the A. de Riesthal Company, of which the plaintiff Milbank is now the receiver.

The ground upon which the complaint predicated the plaintiff’s demand for relief was that such judgments were invalid because in contravention of section 48 of chapter 688 of the Laws of 1892, known as the Stock Corporation Law.

June 1, 1893, the defendant Bowers loaned the A. de Riesthal Company §3,000, receiving therefor a promissory note payable on demand. Subsequently payment was demanded and refused, and immediately thereafter an action was commenced to recover on the note, to which the defendant did not interpose an answer, and in due course, and on September 1, 1893, judgment was entered in favor of the plaintiff for the amount due, with costs. On the same day the defendant Helene de Riesthal entered judgment against the corporation in an action brought on two promissory notes, the principal sum of which aggregated §8,000. That she had advanced such sum to the corporation, and taken its demand notes therefor, is not disputed. As in Bowers’ case, the judgment thus entered was in an action commenced by the service of a summons, of which the corporation took no notice. So far as the record discloses, the officers of the corporation were passive.

The trial court found as a fact “ That neither the said defendant corporation, The A. de Riesthal Company, nor any of its officers or directors, did or performed any act or thing to aid or assist the said defendants, Helene de Riesthal and William C. Bowers, in obtaining their respective judgments against the defendant corporation.”

The first question is, whether these judgments are condemned by section 48-of the Stock Corporation Law. That portion of it which is pertinent to the present inquiry reads : “No conveyance, assignment or transfer of any property of any such corporation, by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation,, shall be valid.”

Our attention has not been called to any case arising since the passage of the act in which this question has been brought to the attention of the court.

The first part of section 48 absolutely prohibits the transfer of any corporate property to an officer, director or stockholder of a corporation, which shall have refused to pay any of its obligations when due, U]ion any other consideration than the full value of the property paid in cash. But that portion of the section which we have quoted has for its object the prevention of preferences to a particular creditor or creditors over other creditors of a corporation which is either insolvent or its insolvency is imminent. It does not declare invalid all transfers of property or payments made to creditors of an insolvent corporation, but only such as are made with the intent of giving a preference to the creditor over other creditors.

While the statute seeks to acconrplisli the end aimed at by restraint upon the action of the corporation, its officers, directors and stockholders, nevertheless the consequences of action on their part in contravention of the statute, is visited upon the creditor whose preference is attempted by them. But it does not attempt to restrain creditors from pursuing the remedies which the law affords to procure satisfaction of their claims. The vigilant creditor is not threatened by it with the certain loss of the expense of legal proceedings if at the time of the entry of judgment the debtor corporation should be insolvent or its insolvency imminent. He is not required to determine at his peril the question of the insolvency or threatened insolvency of the debtor corporation before commencing legal proceedings or entering the judgment in which they shall result.

And while the restraint of the statute is put upon the corporation, its officers and stockholders, allowance is made for the fact that corporations apparently insolvent are occasionally saved by care and prudence in the management of their affairs, and that frequently insolvency is not expected by its officers, but is suddenly brought about by some unexpected loss; hence, the further condition, that the acts described in the section must have been done with the intent to prefer the creditor affected in order to render them void.

This corporation was insolvent on the 1st day of September, 1893, when the judgments of' these defendants against it were entered.

If at about that time 'the corporation had transferred to such, creditors certain of its property in payment of their claims, the general legal proposition, that when a positive act is done, the consequences of which are known beforehand, the party will be held to have intended those consequences, would undoubtedly support the inference that the transfer was for the purpose of giving such creditor a preference over other creditors.

But where the corporation sued has no defense, affords its creditor no assistance and interposes no hindrance, taking no action whatever in the premises, can it be held that the entry of the judgment permits the inference that the judgment suffered” was with the intent of giving a preference to such judgment creditor? We think not, and this position is supported by a carefully considered opinion delivered by Mr. Justice Miller in Wilson v. City Bank (17 Wall. 473). From this opinion we quote : The creditor sued them and recovered judgment, and levied execution on their property. They afforded him no facilities to do this, and they interposed no hindrance. * * * There is nothing morally wrong in their course in this matter. They were sued for a just debt. They had no defense to it and they made none. To have made an effort by dilatory or false pleas to delay a judgment in the State court would have been a moral wrong and a fraud upon the due administration of the law. There was no obligation on them to do this, either in law or in ethics. -* * * It is also argued that inasmuch as to lay (lie) by and permit one creditor to obtain judgment and levy on property necessarily gives that creditor a preference, the debtor must be supposed to intend that which he knows will follow. The general legal proposition is true, that where a person does a positive act, the consequences of which lie knows beforehand, that he must be held to intend those consequences. But it cannot be inferred that a man intends, in the sense of desiring, promoting or procuring it, a result of other persons’ acts when he contributes nothing to their success or completion, and is under no legal or moral obligation to hinder or prevent them.” In Nat. Bank v. Warren (6 Otto, 539-541) the court said : This action goes upon the theory that the mere non-resistance of a -debtor to judicial proceedings against him when the debt is due, and there is no valid defense to it, is the suffering and giving a preference under the Bankrupt Act. This theory is exju-essly repudiated in the case of Wilson v. City Bank (17 Wall. 473).”

Other evidence was necessary to require of the trial court the inference essential to support a judgment in favor of the plaintiff.

No evidence was received by the court tending to show the existence of a desire to prefer the defendant creditors, aside from the fact that the officers of {lie corporation remained entirely passive touching the efforts of Bowers and Helene de Riesthal to obtain judgments for the several amounts due them, unless the plaintiff’s position be well taken, that the corporation had a legal defense to the notes held by them. The appellant insists that the corporation could have successfully defended the actions, on the ground that the notes which were given at the time the loans were made were not signed by the secretary, as required by the by-laws of the corporation.

The by-laws do seem to provide that the secretary shall sign all notes and other obligations of the company.

It is quite evident, however, that this was a mistake of the scrivener who copied the by-laws into the minute book.

Article 3 of the by-laws relates to the duties of the officers of the corporation. Section 1 to those of the president; section 2 to those of the vice-president; section 3 to those of the treasurer, and section 4 to those of the secretary. In section 3, relating to the duties of the treasurer, may be found the following: “ The treasurer shall present his financial statement at each annnal meeting, and also whenever directed by the president or by the board of directors. The secretary shall also sign all certificates of stock, and all notes and other obligations of the company.”

It would seem that the word secretary must have been inadvertently used, instead of the word treasurer, to the duties of whom that section relates. But, assuming that the by-laws made it the duty of the secretary to sign all notes and obligations of the corporation, we are nevertheless of the opinion that the corporation had no defense. The notes were executed by the officers of the corporation who had been accustomed to sign its notes, to wit, the president and treasurer.

The money was borrowed for the corporation by its president; it went into its treasury, and was used for its benefit. (Kraft v. Freeman P. & P. Assn., 87 N. Y. 628; Smith v. Martin Anti-Fire Car-Heater Co., 47 N. Y. St. Repr. 26; Bank of Attica v. Pottier & Stymus Mfg. Co., 17 id. 327; Second Nat. Bank v. P. & S. Mfg. Co., 18 id. 954; Chemical Nat. Bank v. Colwell, 29 id. 726.)

Now, while the evidence justifies the decision of the trial court, we still think the judgment must be reversed, because of the refusal of the court to admit testimony offered for the purpose of showing the existence of a desire on the part of certain officers of the corporation to prefer these defendants. We find from the record that in a number of instances the plaintiff attempted to introduce testimony tending in that direction. This testimony consisted in part of conversations had between the witness and the president and vice-president of the corporation after the summons in each of the actions had been served, but before the entry of the judgments. At these interviews the fact that the summons had been served was discussed, and the plaintiff offered to show that at one of them the president of the corporation, who was the1 husband of one of the judgment creditors, ■ in the presence of his counsel and the witness and the counsel for the witness, produced a paper writing which the witness was requested to sign, which purported to secure a preference for Mrs. de Riesthal; that the paper related to the settlement of the business of the A. de Riesthal Company, and contained a condition that Mrs. de Riesthal should be preferred for $6,000.

As the president then had in his possession a summons, which had been served upon the proper officer of the corporation, in an action to recover $8,000 brought by Mrs. de Riesthal, the fact, if fact it was, that the president of the corporation was attempting to secure a settlement of the 'business affairs of the corporation with the creditors on a basis which should secure to her a preference of $6,000, would seem to furnish some evidence, at least, that certain of the officers of the corporation desired to prefer Mrs. de Riestlial.

Objection was made to the admission of this testimony on the ground that the defendants, Bowers and Mrs. de Riestlial, were not present at such interviews. On this ground the evidence was excluded. Evidence of a like character, and tending in the same direction, was frequently brought to the attention of the court, but it was all excluded on the same ground.

"We need not refer to it, as that to which we have already alluded is sufficient to present the question.

If it were necessary, in order to support a judgment invalidating a judgment suffered by an insolvent corporation to be taken against it by default, that a conspiracy should be proved to have existed between the creditors and the officers of the corporation, there would be force in the objection made by the counsel for the defendants on the trial, but as we read the statute it is sufficient to invalidate the judgment if the corporation suffered it to be taken with the intent of giving preference to such creditor. The mere fact that the officers of the corporation do not oppose the creditor in his effort to get the judgment, but remain passive, is not alone sufficient to require the inference that the judgment was suffered with the intent of giving such creditor a preference. But the inference may be supported on additional evidence of an affirmative character, tending to show the existence of such a desire on the part of the officers of the corporation having knowledge of the situation. Evidence tending to prove such a desire on the part of the officers may consist of acts done, or words spoken under such circumstances as manifest a wish or plan to effectuate a preference in behalf of the prosecuting creditor. Of such a character was the evidence rejected by the court, and the exception taken to its exclusion calls for a reversal of the judgment.

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

Van Brunt, P. J., and Eollett, J., concurred.

Judgment reversed, new trial granted, costs to appellant to abide event.


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    James J. Ward, Appellant, v. The Metropolitan Elevated Railroad Company and Others, Respondents.

      Unrecorded release of easements to an elevated railroad —■ rights vested in the releasee, valid as against a purchaser — duty of inquiry by the purchaser — notice from, the actual possession of real estate — easements which come within the Recording Act— presumption as to a change in cha/raater of occupation.

    Where the owner of property abutting on a street on which an elevated railroad is operated releases to such railroad all the easements or property rights appurtenant to such premises taken by it for the maintenance and operation of such road, and releases such railroad company from all causes of action, past and future, because of such maintenance and operation, and consents to the perpetual maintenance and operation of said railroad in front of such premises,, the railroad company acquires thereby title to the easements which were, prior to that time, vested in the owner of the premises.
    Thereafter the easements are no longer an appurtenance to the premises in question, and although such owner subsequently conveys such premises by a full covenant warranty deed, without reservation or reference to the previous release, and such deed is recorded prior to the recording of the release, the-grantee named in such deed will not acquire title to such easements where said railroad is in the actual possession of such easements at the time of the purchase.
    Where a proposed purchaser of real estate sees an elevated railroad in the open and visible possession of certain easements appurtenant to the property he proposes to purchase, at the time of the purchase, and purchases, without taking any steps for the purpose of ascertaining by what title the railroad holds possession thereof, he is not, as far as such easements are concerned, a purchaser in good faith, within the meaning of the Recording Act, under which act registry and possession, each constitutes constructive notice which puts a party upon inquiry, and charges him with knowledge of every fact to which inquiry would, reasonably have led.
    If a person is in the actual possession of real estate under an unrecorded deed, he-will be protected against a subsequent purchaser who records his deed. It. is the duty of a purchaser to inquire as to the rights of the person in possession, and such duty of inquiry as to the rights therein of a person in the possession of real estate, thereby imposed upon an intending purchaser, will not be. fully satisfied by anything less than an inquiry of the occupant himself touching his title and interest.
    Easements capable of physical examination are embraced within the provisions of the Recording Act, and are necessarily subject to the same law of notice as conveyances of a fee. *
    While an intending purchaser of real estate may know that the occupant of the premises in question entered into the possession thereof as a trespasser, it will not justify his assuming that the occupant has continued to occupy them as a trespasser, and if, in the meantime, the character of his occupancy undergoes a change and he becomes the owner of the fee, the purchaser is chargeable with, notice thereof; the courts will not presume that a party once a trespasser is always a trespasser.
    Appeal by the plaintiff, James J. Ward, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of March, 1894, upon the decision of the court, rendered after a trial at ■ the' New York Special Term, dismissing the plaintiff’s complaint upon the merits.

      Eugene D. Hawkins and Edwa/rd W. 8. Johnston, for the appellant.

      Julien T. Davies, Alexander 8. I/ymozn and Frederick Allis, for the respondents.
   Parker, J.:

In August, 1889, nearly eleven years after defendants’ elevated railroad was open for traffic, Johanna Leipziger, who was then the ■owner of the premises in question, together with her husband, executed and delivered to the defendants for the consideration of $3,300, an instrument in writing under seal, conveying and releasing to defendants the easements or property rights appurtenant to said premises taken for the maintenance and operation of said railroad, releasing defendants from all causes of action, past and future, for .such maintenance and operation, and consenting to the perpetual maintenance and operation of said railroad in front of said premises. 'This instrument has never been recorded.

. In January following, Johanna Leipziger, by full covenant warranty deed, conveyed said premises to the plaintiff without reservation or reference to the previous release given -to the defendants. This deed was duly recorded. Plaintiff contended upon the trial that within the provisions of the Recording Act his deed from Leipziger was entitled to priority over defendants’ previous unrecorded release from the same source of title.

The trial court held, under the authority of White v. Manhattan Railway Company (139 N. Y. 19), that by the release these defendants acquired title to the easements which were prior to that time vested in the owner of the premises, and that thereafter said easements were no longer an appurtenance to the premises owned by Leipziger. We think the decision in White’s case fully supports the conclusion of the trial court. But if the instrument from Leipziger to defendants be regarded as a grant of real estate, plaintiff is not helped by the statute which he invokes. It reads: “ Every conveyance of real estate within this State hereafter made shall be recorded in the office of the clerk of the county where such real estate shall' be situated; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a' valuable consideration of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” (1 R. S. 756, § 1.)

The difficulty with plaintiff’s position is, that he saw the defendants in the open and visible possession of the easements at the time of his purchase without taking any steps, as far as the record discloses, for the purpose of ascertaining by what title they field possession, and, therefore, he was not a purchaser in good faith ” within the meaning of the Recording Act. Under that act registry and possession, each, constitutes constructive notice which puts a party upon inquiry and charges him with notice of every fact to which inquiry would reasonably have led. Hence, where one is in actual possession under an unrecorded deed, he is protected against a subsequent purchaser who records his deed, because it was the duty of the purchaser to inquire as to the rights of the person in possession. (Tuttle v. Jackson, 6 Wend. 226.)

In Phelan v. Brady (119 N. Y. 587), which was an action brought to foreclose a mortgage upon certain premises given by M., who held an apparently perfect title, it appeared that before the execution of the mortgage M. had conveyed the premises to the defendant, who was in possession, and with her husband occupied two rooms in the premises, which consisted of a tenement building or block containing forty-three rooms or apartments, then occupied by twenty different occupants or families as tenants from month to month. In affirming the judgment which dismissed the complaint, the court said : “ It may be true, as has been argued by the plaintiff’s counsel, that when a party takes a conveyance of property situated as this was, occupied by numerous tenants, it would -be inconvenient and difficult for Mm to ascertain the rights or interests that are claimed by all or any of them. But this circumstance cannot change the rule. Actual possession of real estate is'sufficient notice to a person proposing to take a mortgage on the property, and to all the world, of the existence of any right which the person in possession is able to establish.” The necessary inference from the language which we have quoted is, that the duty of inquiry put upon an intending purchaser will not be fully satisfied by anything less than an inquiry of the occupant himself touching his title and interest. Easements capable of physical examination are embraced within the Recording Act and necessarily subject to the same law of notice as conveyances of a fee. (Snell v. Levitt, 39 Hun, 229.) In several decisions affecting easements occupied by the elevated railroad, it has been asserted that the law of notice is applicable. (Mitchell v. Met. El. Ry. Co., 56 Hun, 546; 134 N. Y. 11.)

In Mitchell)s case the General Term said : “ The plaintiffs in this action took no means whatever of ascertaining upon what claim the elevated railway company based its right of possession, and unless such means were used they cannot possibly be considered as not having notice of whatever claim the defendants might be able to assert.” In the Court of Appeals it was said: “ The defendants’ possession of the easements operated to give notice to all the world of a claim of right in respect thereto, so as to put all purchasers on inquiry.”

The appellant contends that the possession, openly and visibly maintained by the defendants for six years, was that of trespassers, and as thereafter their possession continued openly and visibly in the same way apparently, plaintiff had the right to assume that the possession of the defendants at the time plaintiff took his deed was of the same character as that maintained by them at the beginning, and, therefore, he was excused from inquiry. It might be said that the record contains no evidence that the plaintiff indulged in any assumption whatever with reference to the character of defendants’ possession when he purchased the property. It does not appear that he personally knew that the possession of the defendants was ever wrongful. But, assuming that he did know it, and that he indulged in the assumption that defendants’ possession continued to be wrongful, the question would be whether he could safely so assume. We think not. An intending purchaser may know that the occupant of the premises entered into possession under a lease, but it will not avail him to assume that he continued to occupy as a tenant if in the meantime the character of his occupancy underwent a change and lie became the owner of the fee. There does not seem to be any better reason for assuming that the possession of a trespasser will not be changed in character in the course of time. The courts do not presume that a party who was once a trespasser is always a trespasser.

In Uline v. N. Y. Central & H. R. R. R. Co. (101 N. Y. 126) Judge Earl, speaking for the court, says: “I think it quite absurd and illogical to assume that a wrong of any kind will forever be continued and that the wrongdoer will not discontinue or remedy it.” In Pappenheim?s Case(128 N. Y. 436) the court, through Peokham, J., says: “ The law says their (the defendant railroad company’s) action cannot be regarded as a permanent trespass for the very reason that it is unlawful, and the law will not presume that an unlawful act is' to be forever continued.” And in Galway v. Met. El. R. R. Co. (128 N. Y. 132) Ruger, Ch. J., says: “ The plaintiff had reason to suppose the defendants would discontinue their trespasses, or, if they were continued, they would resort to legal means to' justify them. They had no reason to believe that the defendants deliberately intended to prosecute tlieir enterprise altogether regardless of the legal rights of others.”

If the law will not presume that the wrongful possession continues there is no basis whatever for the distinction for which the appellant contends. And while the appellant may regard the failure ■of his speculation as unfortunate, it is not unfortunate in that broader sense which the law has in view in establishing legal rules by the .application of principles which shall result to the general public good rather than that of the individual. For if it were to be held that possession of the easements by the elevated railroads constitutes an exception to the general rule that j>ossession puts a would-be purchaser on inquiry as to the title and right of the occupant, ■confusion and uncertainty would result — the very thing which the law abhors. In some cases subsequent purchasers with prior titles would recover; in others, like White's case (siiyyra), fail. If there were no other reason, the courts would hesitate before reaching the conclusion that the exception to the general rule for which appellant contends should be created.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Follett, J.:

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    James Brand, Respondent, v. Henry J. Newton, Appellant.

      Action to recover the value of goods sold and delivered — when a verdict in f amor of the plaintiff will not he disturbed — objection not reviewablein the absence of an exception.

    Upon the trial of an action brought to recover the value of goods sold and delivered, the question in issue was whether the goods in question were sold to the defendant or to third persons, alleged to be his agents; it was shown upon the part of the plaintiff that the defendant, in a proceeding in which he was a witness, swore that he allowed certain persons to carry on business as his agents- and to buy goods in their name as agents; it further appeared that the bills-for the goods in question were rendered to the defendant, on each one of which he wrote "Payment guaranteed,” signing the same. The defendant testifying in his own behalf denied that such persons or either of them were authorized to purchase goods in his name, but admitted that he received the bills of the goods, in which they were charged to him as the purchaser, and that he wrote on each bill over his signature, “Payment guaranteed; ” it was also shown that the defendant never notified the plaintiff that the goods should not be charged to him.

      Held, that a question of fact was presented for the jury to determine whether the-goods were sold to the defendant or to the persons alleged to be acting as his agents, and that its verdict in favor of the plaintiff would not be disturbed upon appeal as contrary to the evidence.
    "Where, upon the trial of an action, after a response has been made to a question asked of a witness, an objection is made to the admission of such testimony by the attorney for one of the parties, no question is presented thereby to be reviewed upon appeal if no ruling be made upon the objection, no exception, be taken and no motion be made to strike out the testimony given.
    Appeal by the defendant, Henry J. Newton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 8th day of June, 1894, upon the verdict of a jury, rendered after a trial-at the New York Circuit, and also from an order, entered in said-clerk’s-office on the 8th day of June, 1894, denying the-defendant’s motion to set aside the verdict made upon the minutes.

      JE. H. Benn, for the appellant.

      Morris J. Birsoh, for the respondent.
   Follett, J.:

It is alleged in the complaint that between February 24, 1891, and June 4, 1891, the plaintiff sold and delivered goods to the defendant at the agreed price of $3,901.59, which he has not paid, or any part thereof, except $472.83, leaving due $3,428.76. The answer consists óf a general denial. It is not disputed that the plaintiff sold and delivered goods for the price stated, and that there, is due him therefor the amount alleged. The question is whether the goods were sold to the defendant or to Henry Yan Gelder.

Previous to May, 1887, Henry Yan Gelder and Charles Yan Gelder were partners under the name of Yan Gelder Brothers, and in that month they made a general assignment for the benefit of creditors to Henry J. Newton. Much of the stock assigned consisted of unmanufactured material, and the assignee employed the assignors to manufacture it into salable articles. In March, 1888, the assignee settled his accounts and was discharged. After that Yan Gelder Brothers carried on a similar business in the name of Yan Gelder Brothers, as agents, and purchased goods of the plaintiff in the name of 'the defendant, the bills for which were paid. Subsequently the firm was dissolved and Henry Yan Gelder continued to carry on the same business in his name, as agent. Goods were purchased, in 1890 and 1891, in the name of the defendant, which were used by Henry Yan Gelder in his business’.

A witness, called by the plaintiff, testified that he heard the defendant sworn as a witness in December, 1889, and that he then swore “that thereafter, immediately following the sale of the machinery (in' March, 1888), he employed or allowed' the firm of Yan Gelder Brothers, the individuals who formerly composed the firm of Yan Gelder Brothers, to carry on business as his agents, and to buy goods in the name of Yan Gelder Brothers, agents, and he. stated that they were carrying on business as agents of Henry J. Newton.” The goods were sold on seven different occasions between February 24, 1891, and June 4,1891, and charged to the defendant, to whom the plaintiff rendered seven bills of items, stating the amount and the price of the goods sold. On every one of these hills the defendant wrote, Payment guaranteed. H. J. Newton.”

The defendant, testifying in his own behalf, denied that Yan 'Gelder Brothers, or either of them, were authorized to purchase goods in his name, but admitted that he received the bills of the .goods in which they were charged to him, as the purchaser, and that he wrote upon the face of every one .of them the words, “ Payment guaranteed. Ii. J. Newton.” He never notified the plaintiff that the goods should not be charged to him. Under this state of the evidence it was a question of 'fact for' the jury to determine whether the goods were sold to the' ‘defendant or to Yan Gelder, and, having found in favor of the plaintiff, the verdict should not be disturbed as contrary to the evidence.

The defendant moved that thé complaint be dismissed. The motion was denied, but no exception wás taken, and no exception was taken to the charge or to thd "reíüsals to charge. The only questions presented on this motion' arise on the apjaeal from the order denying the motion for a new" tidal' made on‘the minutes, and on one objection taken to the admission'of' evidence. Henry J. Fraud, the nephew'- of the plaintiff, “testified that Henry Yan Gelder told him that ho (Yan Gelder) had power to'buy goods for the •defendant. After the testimony had been taken the defendant’s •counsel said : “I object to the declarations of Henry Yan Gelder.” No ruling was made upon the objection, no exception was taken and no motion was made to strike out the testimony. ' This presents no ■question for this court. ¡ '

The judgment and order should, be affirmed, with costs.

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

Judgment and order affirmed, with1 costs.


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    The Mayor, Aldermen and Commonalty of the City of New York, Respondent, v. The New York Refrigerating Construction Company and Others, Appellants.

      Becitals of a bond — controls the obligation of the sureties —• exceptions to the rule.

      Semble, that, ordinarily the recital of a bond expresses the intent of the parties and controls the condition or obligation which follows it, and although the condition may be clothed in more general language than the recital, the obligation of the parties to the bond is to be controlled by the terms of the recital.
    The rule is otherwise if the recital shows that it was not understood or intended to contain the whole of the obligations entered into between the parties to a contract to secure which the bond was given.
    Appeal by the defendants, The New York Refrigerating Construction Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of May, 1894, upon the decision of the court rendered after a trial at the New York Special Term.'

      Burton N. Harrison, for the appellants.

      Ba/vid J. Bean and T. Farley, for the respondent.
   Yan Brunt, P. J.:

We might very well rest our decision of the appeal in this case upon the opinion of the court below. Great stress, however, is laid-by the counsel for the appellants upon the claim urged by him that the sureties were not bound by the bond, the subject-matter of this action, in respect to the payments for the default in the making of which, this action has been maintained.

It is urged that the recital of the bond expresses the intent of the parties and controls the condition or obligation which follows; and that although the condition may have used more general language than the recital, the defendants’ obligation is to be controlled by the terms of the recital.

Even applying this rule, it does not seem to us that the contention of the appellants can be sustained. The recital of the bond is in these words: “Whereas, the above bounden, the New York Refrigerating Construction Company, by an instrument in writings Tinder its corporate name, and seal, bearing even date with these presents, has contracted with said the Mayor, Aldermen and Commonalty of the city of New York, by the comptroller of said city, to introduce and maintain refrigerating apparatus in the New West-Washington Market, for preserving meats, etc., as will in said instrument, one part whereof is hereto prefixed, more fully and at large-appear.”

It is contended that, the evidence shows that this was done, and that the refrigerating apparatus was duly introduced in the market- and was there maintained as agreed, and that there is no complaint on that account; and that -this is all that the recital of the bond indicated that the defendants were to do.

It will appear upon a consideration of the recital that it was not-understood or intended to contain the whole of the obligations which were entered into between the parties by reason of the contract to secure which the bond was given. The recital is: “ To introduce and maintain refrigerating apparatus in the New West Washington. Market for preserving meats, etc., as will in said instrument, one part-whereof is hereto prefixed, more fully and at large appear,” this-language evidently indicating that it was the intention of the parties that the instrument itself should thereby be incorporated in the-recital, and that the phraseology employed was intended to be a-mere general designation of the contract without any particularity as to its terms. The words quoted are of the most indefinite char' acter. There was no obligation upon the part of the defendants in this recital that the apparatus in question should do anything of the kind for which it was constructed. So long as tlie refrigerating apparatus was introduced and maintained for the purpose of preserving1 meats, etc., whether it accomplished such purpose or not, was immar terial according to the contention of the defendants. It is clear that-this indefinite statement could not ever have" been intended by the parties to recite the whole of the obligation, and that reference is-made to the contract itself as more fully and at large expressing the terms of the obligation, and this is in harmony with the condition o£ the bond. This condition was that the defendant corporation should well and truly and in good, sufficient and workmanlike manner perform the said contract, namely, the contract referred to in the recital,. and each and every provision therein contained on its part to be done and performed, and should maintain the said apparatus in accordance with the terms and provisions in said contract stipulated, and should in each and every respect comply with the conditions therein contained, thus showing that it was in the mind of the parties that not only was the refrigerating apparatus to be introduced and maintained but that the terms of the contract in all other respects were to be complied with. And this is in accord with the natural rule of construction where the contract itself is made part of the recital.

We think, therefore, for the reasons stated in the opinion of the court below, as well as those herein expressed, the judgment appealed from should be affirmed, with costs;

Follett and O’Brien, JJ., concurred.

Judgment affirmed, with costs.


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    Mary Mercadante, Respondent, v. The Manhattan Railway Company, Appellant.

      Decla/t'aMons of a former owner of real estate as to the value thereof.

    An owner of real estate is not bound by the declarations of his predecessor in title in respect to the value of the premises of which he is the owner.
    Appeal by the defendant, The Manhattan Railway Company,, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the-11th day of June, 1894, upon the decision of the-court rendered after a trial at the New York Special Term.

      Julien T. Dmies and P. L. Ma/ynctrd, for the appellant.

      H. G. Aimater and O. L. Pashley, for the respondent.
   Van Brunt, P. J.:

The only points which are urged as ground of error in the trial below are questions relating to the admission and exclusion' of evidence, and to the failure to compel the plaintiff to elect the theory upon which the action was to be tried.

It was souglit to prove upon tlie question of value that the former •owner of the property had placed the same in the hands of a broker for sale and had fixed a price which he was willing to take. This •evidence was objected to and excluded and an exception taken. There was clearly no error in this ruling, because the plaintiff was not bound by the declaration of her predecessor in title in respect to the value of tlie premises of which she was tlie owner.

It is also urged that the court erred in the admission of certain evidence .presented by the plaintiff. This was a judgment roll in an action in which this defendant was not a party, showing the sale of premises on First street in the vicinity of the property in suit. In consequence of the meagreness of tlie record it is impossible for us to say whether it was or was not error to admit this testimony. It does not appear under what circumstances this sale took place — whether it was at public auction or by private contract, or whether under the decree of the court or not. It is impossible, therefore, for us to say whether or not it was error to admit this record for the purpose of establishing what was paid for the property then in question.

The judgment should be affirmed, with costs.

Follett and Parker, JJ.., concurred.

Judgment affirmed, with costs.