text:
    Catharine Holsman and others v. Bella Abrams.
    (Before Duer, Bosworth, and Emmet, J.J.)
    October 19;
    December 24, 1853.
    Where a lease for a term of years contains a covenant on the part of the landlord, that at the expiration of the term the tenant shall be paid the appraised value of a dwelling-house to be erected by him on the demised premises, or that a new lease for the same term of years, at an appraised rent, (excluding from the appraisement the value of the dwelling-house) shall be granted to him; the tenant at the expiration of the term is entitled to retain the possession until the covenant shall be performed by the landlord or his representatives.
    But the tenant so retaining the possession is not discharged from the payment of rent, but is subject to the general rule, that a tenant holding over after the expiration of his lease, with the consent of the landlord, becomes a tenant from year to year, subject to all the terms and conditions of the original lease.
    The landlord, however, is equally bound by the same rul e, and therefore in an action for use and occupation, can recover no more than the rent originally reserved. He is not entitled to an increased rent proportioned to the increased value of the premises.
    The decision of the Supreme Court in Abel v. Radeliff, IS John. 505, is not applicable when the improvements made by a tenant during his term at its expiration belong to him, and not to his landlord. That case is, moreover, of doubtful authority.
    Verdict for plaintiffs reduced to rent reserved in the original lease, and judgment thereon, with costs.
    Case upon a verdict for plaintiffs taken subject to the opinion of the court at general term.
    The action was for the recovery of the value of the use and occupation of premises known as Ko. 20 Wooster street, in the city of Kew York, and came on for trial before Mr. Justice Paine, and a jury, on the nineteenth day of April, A. D. 1852, and terminated on that day.
    The complaint was in the usual form. The answer denied the tenancy.
    To sustain the issue on the part of the plaintiffs, their counsel called

      Mordeoai L. Marsh, who, being duly sworn, testified in substance, as follows:
    I know the defendant Bella Abrams; I reside at Ko. 22 Wooster street, in the city of New York, and the defendant at Ho. 20 Wooster street, adjoining my house. I have known Mrs. Abrams for twelve or fifteen years past, during which time she has occupied Ho. 20 Wooster street; she occupied those premises from the 1st May, 1847, to the 1st Hovember, 1849. In my estimation, a fair rent for the use and occupation of those premises, per annum, would be five hundred dollars; for the ground, irrespective of the buildings, from two hundred and ten to two hundred and twenty dollars, in that neighborhood ; I pay two hundred and ten dollars, per annum; the premises in question are nearer Canal street than mine, and are in that respect more favorably situated than mine.
    On a cross-examination by defendant’s counsel, witness further testified:
    I don’t know how the defendant occupied the premises twelve or fifteen years ago; don’t know under whom the Abrams family occupied; some of the family bought of Andrew Lockwood : a Mr. Smith built the house.

      Ezra P. Dmis, another witness produced on behalf of the plaintiffs, being duly sworn, testified as follows :
    I know the defendant Bella Abrams; I know the premises Ho. 20 Wooster street; Í was an appraiser of the premises in question some six or seven years ago—appointed by the owner of the lot; we estimated the lot to be worth three thousand two hundred and fifty dollars, and the ground rent of the premises was to be estimated at seven per cent, upon such appraised value.
    The counsel for the defendant here objected, that the matter testified of was in writing, and thereupon produced, upon call of the plaintiffs’ counsel, an agreement made between Hicholas Dean, guardian, and Bella Abrams, dated 12th January, 1845 ; also the appraisement by A. Lockwood and Ezra P. Davis, dated 14th February, 1846.
    The counsel for the plaintiffs thereupon took said papers, and read them in evidence to the court and jury.
    “House and Lot Ho. 20 Wooster street—Lot 25 feet front and rear, and 100 feet deep.

      “ It is agreed by and between the undersigned, that Ezra P. Davis, of the city of New York, real estate agent, and Andrew Lockwood, of the same city, builder, value the lot of ground in Wooster street, known as No. 20, of which the dimensions are above given, and also the brick house standing thereon; and that the said appraisers make report in writing, under their hands and seals, of the sum at which the said lot and the said house respectively shall be so valued by them; and should the said appraisers disagree in the valuations about to be made, or either of them, they are hereby authorized to call in the service of a third person as umpire, and the report of any two of them shall be considered conclusive between us,—and thereupon the guardian of the infant children, owners of said lot, will, at his option, either grant a new lease for twenty-one years of said lot, at a ground rent equal to seven per cent, per annum on the sum at which the said lot shall be so valued, or otherwise will pay .the full sum at which such appraisers shall estimate the house standing on the front of the lot.
    “ These proceedings being had in pursuance of covenants for that purpose, contained in a certain lease made of the same ground, by George Lorillard, late of the city of New York, deceased, to Ebenezer Smith, of the same city, bearing date the 17th day of January, 1825, which lease will expire on the first day of May next.
    “ In witness whereof, the parties now interested in the said lease, have hereunto signed their names this 12th January, 1845.
    “ Bella Abbams,
    “ N. Dean,
    “ Guardian for infant children of D. Holsman, dec’d.”
    “New York, 14th February, 1846.
    “We, the subscribers, have-examined the house and lot No. 20 Wooster street, and do estimate the said lot to be worth the sum of thirty-two hundred and fifty dollars, and the dwelling-house standing thereon to be worth the sum of twenty-five hundred dollars.
    “ A. Lockwood,
    “ Ezba P. Davis.

      House,
    $3250
    2500
    $5750
    “ Fees $10—one-half to be paid by each party.”
    'The variance in the year, stated in the agreement and the appraisement, is admitted to be a clerical mistake.
    The defendant’s counsel admitted, that the plaintiff Catharine Holsman, is the widow of Daniel Holsman, deceased, and that Catharine Ann Barclay, Margaretta L. Barclay, Daniel Hols-man, Maria M. C. Holsman, Eliza B. Holsman and Julia Holsman, the other plaintiffs, are the children and heirs at law of Daniel Holsman, deceased, and that Clement B. Barclay and James Barclay intermarried with two of the daughters before the commencement of this action, and after said appraisement; that the said children, at the time of the appraisement, were all under age; and that Daniel Holsman was deceased at the time the agreement was entered into between Nicholas Dean, guardian, and the defendant.
    The defendant’s counsel also admitted, that he (Charles W. Sandford,Esq.) on behalf of the defendant, paid to Nicholas Dean, the guardian of said infant, children, the sum of two hundred and twenty-seven dollars and fifty cents, for the ground rent of the premises in question, for the year beginning on the first day of May, 1846, and ending on the first day of May, 1847, with the understanding, that such payment should not prejudice the rights of the defendant to a new lease, or the payment for her buildings; also, that upon the partition of the estate of George Lorillard, deceased, the lot in question was set apart to Daniel Holsman, one of his heirs, subject to the lease held by the defendant.
    The lease was here produced by the counsel for the defendant, and handed to the counsel for the plaintiffs. It was thereupon read in evidence, as follows.
    “This Indenture, made the seventeenth day of January, in the year of our Lord one thousand eight hundred and twenty-five, between George Lorillard, of the city of New York, tobacco manufacturer, of the first part, and Ebenezer Smith, of said city, builder, of the second part, witnesseth, that the said party of the first part, for and in consideration of the rents, covenants, and agreements hereinafter mentioned, &c., conveys all those two certain lots of ground, situate in the Eighth Ward of the city of New York, known and distinguished on A. Hammond’s map, as lots numbers one hundred and fifty-seven (157) and one hundred and fifty-eight (158), containing in breadth, in front and rear, fifty feet, and in length on each side, one hundred feet, made by Daniel Ewen, in the month of February, in the year 1821. To have and to hold the said above mentioned and described premises, with the appurtenances, unto the said party of the second part, his executors, administrators, and assigns, from the first day of May, one thousand eight hundred and twenty-five, for and during, until the full end and term of twenty-one years, thence next ensuing, and fully to be completed and ended, yielding and paying therefor, unto the said party of the first part, his heirs or assigns, yearly and every year, during the said term hereby granted, the yearly rent, or sum of one hundred and twenty dollars, lawful money of the United States of America, in equal quarter yearly payments, to wit, on the first days of August, November, February, and May, in each and every of said years; (then follows a covenant for re-entry, and a covenant to pay rent, and taxes, and assessments) and that on the last day of said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall or will peaceably and quietly •leave, surrender, and yield up unto the said party of the first part, his heirs, or assigns, all and singular the said demised premises, (then follows a covenant for quiet enjoyment.) And it is mutually covenanted and agreed by and between the said parties respectively, for themselves severally, and for their several respective heirs, executors, administrators, and assigns, by these presents, that all such front dwelling-houses having brick fronts, or being entirely composed of brick, as shall be erected and made with new materials upon said lots of ground hereby demised by the said party of the second part, his executors, ad ministrators, or assigns, and remaining thereon at the expiration of the said term hereby granted, and also the said demised lots of ground shall then be valued and appraised by indifferent persons, one of whom shall be chosen for that purpose by the said party of the first part, or his legal representatives, and one other to he chosen by the said party of the second part, or his legal representatives, and if the said two persons so chosen shall not agree in opinion respecting the premises, then such two persons shall nominate a third indifferent person, and that such three persons so chosen, or any two of them, shall make such, their valuations or appraisements, of the said premises in writing, under their hands and seals, and that thereupon the said party of the first part, his heirs, or assigns, shall and will, at his and their election, either pay to the said party of the second part, his executors, administrators, or assigns, the full sum' of money at which such dwelling-houses shall be so valued at; or otherwise shall and will grant to the said party of the second part, his executors, administrators, or assigns, a further lease of said demised premises for the further term of twenty-one years, from the expiration of said term hereby granted, and that the yearly rent to be reserved in such further lease so to be granted, shall be such sum as would be produced by the sum the said lots shall be valued at, put at interest at the rate of seven per cent, per year, in which said further lease the said party of the second part, or his legal representatives, shall be bound to pay all such taxes and assessments, both ordinary and extraordinary, as shall be charged or assessed on the said demised premises during such new lease, at his and own proper cost. In witness whereof the said parties to these presents, _ have hereunto interchangeably set then’ hands and seals the day and year first above written.
    “ [l. s.] George Lorillard,
    “ [l. s.] Ebenezer Smith.
    “ Signed, sealed, and delivered in the presence of “ Jacob F. Hagadoen.”
    It was admitted that this lease was assigned to Bella Abrams, 1st December, 1840.

      The defendant’s counsel admitted that there was an error in the amount of rental, and that it should be one hundred and twenty-five dollars, instead of one hundred and twenty.
    The plaintiffs here rested.
    The counsel for the defendant, to sustain the issue on her part, took the stand as a witness.

      Charles W. Bamdford, being duly sworn, deposed as follows :—
    After the appraisement was made, and about the first of May, 1846, I had drawn in my office this lease and counterpart, dated 1st May, 1846, and they were executed in my presence by Bella Abrams, and taken by me to Mr. Dean to get his signature, which Mr. Dean declined to give without authority from the court—said leases have ever since been in my possession, ready to be accepted at any moment when the parties would execute them down to the commencement of this suit.
    The counsel thereupon read the said lease in evidence.
    Dated 1st day of May, 1846. Between Hicholas Dean, of the city of New York, guardian of Catharine Ann Barclay (late Holsman), Margaretta L. Barclay (late Holsman). Daniel Holsman, Maria M. C. Holsman, Eliza B. Holsman, and Julia Holsman, infant children of Daniel Holsman, late of New Jersey, deceased, of the first part, and Bella Abrams, of the city of New York, single woman, of the second part. Conveys all that certain lot of ground situate in the Eighth Ward of the city of New York, known and distinguished on a map of the property of Abijah Hammond, made by Daniel Ewen, City Surveyor, in the month of February, 1821, filed in the office of Register in and for the city and county of New York, in tin case, Ho. 13, as lot Ho. 157 (one hundred and fifty-seven), but now known as Ho. 20 Wooster street, bounded north-westerly in front by Wooster street, north-easterly by lot number one hundred and fifty-eight on said map; south-easterly, in the rear, by lot number one hundred and forty-six on said map; and south-westerly by lot number one hundred and fifty-six on said map, containing in breadth, in front and rear, twenty-five feet, and in length, on each side, one hundred feet, for the term of twenty-one years, from the first day of May, 1846, at the annual rent of two hundred and twenty-seven dollars and fifty cents, in equal quarter yearly payments.
    Containing provision for re-entry and covenants, on part of the party of second part, for payment of rent, payment of all taxes, duties, and assessments, ordinary and extraordinary, during term, and surrender of premises on last day of term, or other sooner determination of lease. Also a covenant on part of party of the first part, for quiet enjoyment.
    Signed and sealed by Bella Abrams.
    On a cross-examination by counsel for the plaintiffs, the witness further testified as follows:
    I drew the agreement for the appraisement; I was consulted by Miss Abrams before the appraisement, and by Mr. Dean afterwards. I was the counsel for the Lorillard estate, and conducted the partition proceedings relative thereto. I was acting as counsel for both parties in the matter of procuring the execution of the new lease. I offered the lease to Mr. Dean, at his own office, about the first day of May, 1846. Mr. Dean asked me, at the time I took the lease and counterpart to him, if he had the right to execute them as guardian. I told Mr. Dean I would take the responsibility of the execution for Miss Abrams, if he would sign them; but that he had not a strict right, as guardian, to execute the lease without an order from the court of chancery. I am not certain whether I got the appraisement from Mr. Davis or Mr. Dean; I am inclined to think there were two valuations, and that one was handed to me, and one to Mr. Dean. I was employed by Mr. Dean to draw an application to the court of chancery for leave to execute the lease; I have the petition in my hands, signed and verified by Mr. Dean, the 8th of May, 1846. No order of the court was obtained.
    The direct testimony being resumed, the witness testified as follows: The petition and affidavit, after been signed by Mr. Dean, were given to Mr. Dean for the purpose of getting the consent in writing.
    (Counsel for the plaintiffs here objected to witness’s reason for not getting the order. His honor, the judge, overruled the objection, and the plaintiffs’ counsel excepted.)

      Witness continued: After Mr. Dean had sworn to the petition, 1 left it with him. to get the consent in writing of Mrs. Holsman, the widow of Daniel Holsman, and mother of the infants who resided in New Jersey, she being their guardian in the State of New Jersey, where they reside. The papers came back, with Mrs. Holsman’s signature, to me some time afterwards; my impression is, some two or three months. I then took the papers to Vice Chancellor McCoun, with a draft order, for the purpose of getting his approval thereof, but the Tice Chancellor declined making such order without a reference, and the usual bond to each of the infants. I reported that fact to Mr. Dean, and Mr. Dean said he would not give any such bond, unless the Holsman family would 'furnish the security ; nothing has been done about it since. In making the application, I acted as the counsel for Mr. Dean.
    The evidence here closed.
    The counsel for the defendant thereupon moved for a non-suit, on the following grounds:—
    1. That plaintiffs have not shown that the defendant occupied the premises in question by their permission.
    2. That proof shows defendant occupied under George Lorillard, and held by title prior to that of plaintiffs.
    3. That the defendant, having performed the covenants in the lease on her part, the plaintiffs cannot collect any rent from her until they have performed the covenants on their part.
    4. That the submission on the part of the guardian not being binding upon the plaintiffs, and being disavowed by them, is not binding upon the defendant.
    The court denied the motion, and the counsel for the defendant excepted.
    Thereupon, under the advice and direction of the court, and with the consent of the counsel for the respective parties, the jury found a verdict for the plaintiffs of seven hundred and twenty dollars, subject to the opinion of the court on this case, to be heard at a general term thereof, and also to adjustment.
    B. T. Kissam, for the plaintiffs,
    insisted that they were entitled to judgment upon the verdict as rendered, and relied upon the following points and authorities.
    I. The occupation of the premises by the defendant is clearly proved, and is not disputed.
    II. The defendant so occupied by the permission of the plaintiffs. 1. Proof shows that Catharine Holsman is the widow, and Catharine Ann Barclay, Margaretta L. Barclay, Daniel Hols-man, Maria M. C. Holsman, Eliza B. Holsman, and Julia Hols-man, the heirs-at-law of Daniel Holsman, deceased, to whom the premises in question were set apart in severalty, upon a partition of George Lorillard’s estate, as one of his heirs-at-law ;—the Barclays having married two of the daughters, and Nicholas Dean having been appointed the guardian of the infant children, prior to the commencement of this suit. 2. Payment of rent to Nicholas Dean, as guardian for infants, estops the defendant from disputing the title of the plaintiffs as landlords. (Osgood v. Dewey, 13 J. R. 240; Nellis v. Lathrop, 22 Wend. 121.) 3. The agreement made and entered into between Bella Abrams, the defendant, and Nicholas Dean, the guardian, establishes the fact that the occupation was by permission of the plaintiffs. (Little v. Martin, 3 Wend. 219.) 4. The tender of the lease executed by Bella Abrams, the defendant, to Nicholas Dean, the guardian, is a further acquiescence in the title of the plaintiffs.
    III. The value of the use and occupation is distinctly proved and established. 1. By the testimony of Marsh and Davis. 2. By the agreement between the defendant and Nicholas Dean, the guardian, and the appraisement made thereunder. (See 2 R. S., 3d edit., p. 32, § 26; Williams v. Sherman, 7 Wend. 109.) 3. By the payment of $227.50 the previous year. (Abeel v. Radcliffe, 15 J. R. 507; Bradley v. Covil, 4 Cow. 350; Evertsen v. Sawyer, 2 Wend. 507, 512.) 4. By the lease executed by Bella Abrams, the defendant.
    TV". The action for use and occupation can be maintained against a person holding over, under a covenant for renewal, contained in an expired lease of the same premises, and a failure on the part of the plaintiffs to fulfil the covenants on their part, contained in said lease, will not relieve the defendant from the payment of rent. (Abeel v. Radcliffe, 13 J. R. 297; id. 15 J. R. 505; Allen v. Pell, 4 Wend. 506; Etheridge v. Osborn, 12 Wend. 529; Sickles v. Frost, 15 Wend. 559; Holsman and others v. Abrams—decided in this court June 28, 1851, and again March 6, 1852.)
    V. The rent reserved in the original lease from George Lorillard to Ebenezer Smith, being for the lot alone, without any buildings thereon, cannot be the criterion in ascertaining the value of the rent of the house and lot, and the law raised no implied agreement in such a case, that the old rent shall be the measure of damages. (Abeel v. Radcliffe, 15 J. R. 505.)
    YI. The plaintiffs are entitled to judgment for the amount claimed in the summons, with interest, from the several quarter days upon which the rent fell due and payable.

      C. W. Sandford, for defendant, contra.

    1. The defendant does not hold under the plaintiff, but under the original lease, and is not liable in an action for use and occupation.
    IT. The defendant having complied with all the terms of the lease on her part, the plaintiff cannot collect any rent until they have performed the covenants on their part.
    III. Where, by the terms of a lease, the tenant is to be paid for improvements, at the expiration of the term, an agreement by the lessor will be implied that the lessee may retain possession until such payment is made, although the term has expired (Van Rensselaer v. Penniman, 6 Wend. 569).
    IV. Where a tenant for a term of years holds over, without any new agreement between the parties, he holds, subject to all the covenants of his old lease, applicable to his new situation ; and the law implies the same terms (De Young v. Buchanan, 10 Gill. & Johs. 148; Philips v. Menge, 4 Wharton, 226).
    Y. The submission of the guardian not being binding on plaintiffs, and being disavowed by them, is not binding on defendant.
    YI. If plaintiffs can recover at all in this action, they can only recover the rent reserved by the original lease.
   By the Court. Duer, J.

We do not at all doubt that the defendant is entitled to retain the possession of the demised premises, as she now holds them, until the owners of, the reversion, in performance of the covenants in the original lease, shall have actually paid or tendered to her the appraised value of the dwelling-house, which has been erected on the lot, or shall have granted to her a new lease, for the additional term of twenty-one years ; and, to this extent, the case of Van Rensselaer v. Penniman (6 Wend. 596), to which we were referred, may be regarded as a decisive authority. But neither this, nor, as we believe, any other adjudged case, can be cited, to prove that, while she thus retains the possession, the relation of landlord and tenant is wholly dissolved, so as to discharge her absolutely from the payment of rent; and, to a doctrine so unreasonable in itself, unless shown to be established as law, it is not probable that the assent of this Court will ever be given. It has long been, and probably still is in the power of the parties,—of the plaintiffs as owners of the fee, and of the defendant as tenant,—to demand, and compel a specific performance of the covenants in the original lease, but, as neither party has chosen to take the necessary steps for this purpose, we see nothing to distinguish this from any other case, in which the tenant holds over, after the expiration of the lease, with the consent of the landlord. It is, therefore, by the rules of law applicable to such .cases, that our decision must be governed.

But although we must hold that the defendant is liable in the present action, it by no means follows, that she is liable for the whole rent which the plaintiffs claim, and for which the verdict has been conditionally rendered.

It is settled law that, when a tenant for years is permitted to hold over after the expiration of his term, he becomes a tenant from year to year, according to the terms and conditions of the original lease, which, with the single exception of the duration of the term, continues to be, not only the proper, but the sole evidence of the subsisting contract of the parties. It is, therefore, the rent reserved by this lease, and that alone, that the tenant is bound to pay, and it is this, and no more, that the landlord can lawfully exact, unless it is proved to have been altered by a new and express agreement (Knight v. Darley, 1 Term R. 162; Dox v. Bell, 5 Term, 471; Digby v. Atkinson, 4 Camp. 277; Harding v. Crithon, 1 Esp. N. P. Cases, 59; Do Young v. Buchanan, 10 Grill, and John. 149; Philips v. Menge, 4 Whar. 226). It was not denied by the counsel for the plaintiff, that the general rule is such as we have stated, but he insisted that there are valid reasons for excepting the present case from its application. He required us to hold that the payment to the guardian of the infant plaintiffs, of the sum of $229.50, as the rent for a single year, is conclusive evidence of a new agreement, binding her to the payment of the same rent so long as her possession has lasted, and shall continue.

But it is impossible for us to give this effect to the payment in question, without contradicting our former decisions, by which, in sustaining the demurrer of the plaintiffs to the answer first interposed by the defendant, we held that the agreement between herself and the guardian bound him, either to grant her a new lease for twenty-one years, or to pay her the estimated value1 of her dwelling-house, and the evidence clearly shows that it was in consequence of this agreement, and of the appraisement that followed, and in the full belief that a new lease would be given, in which the sum she then paid, would be reserved as the annual rent, that she consented to the payment now relied on.

We cannot, 'therefore, regard the payment as evidence of a promise to pay the same sum as an annual rent, so long as she was suffered to hold over under the original lease, when it is proved to have been made under a distinct agreement, which we have adjudged to be void, and upon a consideration that has wholly failed. It would be most inequitable to charge her with an increased rent, while the lease, which was to be the consideration of its payment, is still withheld, and we cannot hold that she is bound by an agreement which the plaintiffs, as made by their guardian, without authority, have chosen to repudiate. We cannot say that an agreement, not binding on the plaintiffs, is binding on her.

It was next insisted, that there is another and distinct ground upon which we are bound to say that the plaintiffs are entitled to the whole rent which they demand.

The rent in the original lease, it is said, was merely a ground rent, having reference only to the naked value of the lot, and that, as a dwelling-house has since been erected, by which the value of the occupation of the premises has been greatly increased, it it reasonable and just, that a rent proportionate to this increase should now be allowed ; and, in support of the position that the plaintiffs have a legal right to demand this allowance, we were referred to the decision of the Supreme Court in Abeel v. Radcliff (15 John. 505), as a direct and controlling authority. Our examination of that case, however, has led us to a very different conclusion. If it is to be regarded as an authority at all, we are satisfied that it is directly opposed to the claim of the plaintiffs. It is true that, in Abeel v. Radcliff, although there was no evidence of a new agreement, a tenant holding over was held to be liable to an increase of rent, in proportion to the increased value of the premises, but the only ground of this decision was, that the improvements to which the increased value was owing, and which had been made during the term, became, upon its expiration, the sole property of the landlord. The dwelling-house, in the case before us, since the expiration of the. lease, has been, and still is, not the property of the plaintiffs, but of the defendant. In a qualified, but still in a legal sense, by force of the covenants in the original lease, she is its owner, and it is only by granting her a new lease, or by paying her its value, that the plaintiffs can divest her title. The reason, therefore, for admitting that exception from the general rule, which the decision in Abeel v. Radcliff appears to sanction, is wholly false.

But were the facts in this case exactly similar to those in Abeel v. Radcliff, we are by no means prepared to say that we should hold ourselves bound to follow the decision. It was that of a bare majority of the court. Chief Justice Thompson and Hr. Justice Platt dissented from the judgment, and the former supported his dissent by reasons which we think it would be difficult to answer. It is certain that the case stands alone, and in principle is not easy to be reconciled with prior authorities ; but, admitting it to be sound law, we cannot doubt that even the judges who concurred in the decision, would have rejected the claim of the plaintiffs in this suit, in the extent to which it has been urged, They must haves done go, in consistency with their own reasoning,

Onr conclusions, then, are, that no valid reasons have been shown for excepting this case from the general rule, that a tenant holding over is liable only for the rent mentioned in his lease, and that, on the other hand, there are- special reasons for enforcing the rule in its strictest application, It is exactly the rule which a just regard to the intention of the parties to the original lease, as manifested by its terms, requires us to follow, The covenants to which we have referred evidently show, that it was not intended that the owner of the reversion should he placed in a situation to demand an increased rent upon the expiration of the lease, by any other means than by granting a new lease, or paying td the tenant the value of the improve - ment.

Hence the plaintiffs, until, by performing these covenants, they shall secure to the defendant the benefit to which she is entitled, will have no right to complain that the only rent they can he permitted to recover, is that which the lease stipulates to be paid. It may be, and doubtless is, greatly disproportionate to the present value of the premises, but it is that to which the law, and the contract of their ancestor, alone entitles them.

The original lease embraces two lots, and reserves an entire rent of $125. The defendant is the tenant of only one lot, and apportioning the rent equally, is liable but for the annual rent of $62.50,

It is upon this principle that the verdict must be reduced and adjusted.

Judgment for the plaintiffs, upon the verdict, as reduced,


source: Caselaw Access Project

author: By The Court. Bosworth, J.

license: Public Domain

text:
    Westervelt v. Smith.
    Where a bond is executed to a sheriff by a deputy, and a third person as surety for the deputy, in an action by the sheriff against such surety, to recover the amount which the sheriff has been compelled, by j udgment, tb pay'for default» of the deputy, covered by the condition of the bond, the record of thg judgment against the sheriff is primá fade evidence in the action against such surety of the deputy’s default, on its being proved that the deputy had notice of, and an opportunity to defend the suit against the sheriff, although the surety himself had no notice of it. Where the alleged negligence was in not levying an execution when the debtor has property to satisfy it, proof that the execution wag committed to the deputy, a recovery against the sheriff," and notice to the deputy of a suit against the sheriff, and payment by the sheriff of the judgment so recovered, primá fade entitle him to recover against the deputy’s surety.
    (Before Duer, Bosworth, and Emmet, J.J.)
    October 20 :
    December 24, 1852.
    The reasonable expenses of the sheriff in defending the suit against himself are also recoverable,
    A bond conditioned to indemnify the sheriff against all damages, costs, and charges to be imposed upon or demandable of the sheriff, in consequence of the deputy’s defaults, is an agreement to indemnify against ft legal liability,
    Judgment for plaintiff upon verdict.
    Case upon a verdict for the plaintiff, subject to the opinion of the court at general term, upon the exceptions taken on the trial.
    The action was brought by the plaintiff, late sheriff of the city and county of New York, against the defendant, as one of the sureties upon the bond given to the plaintiff, as sheriff, by Thomas Dunlap, one of Ms deputies, for the faithful performance of the duties of Ms office.
    The complaint assigned the following breaches of the condition of the bond,
    First,—-That on the 24th of November, 1849, an execution in favor of Jeremiah Russell, against Thomas Sheldon and others, , for $396.75, was delivered to Dunlap for service, upon which he made a false return of “ no goods, &c.,” for which false return a judgment was obtained against the plaintiff, on the 17th December, 1851, for $688.34, which he paid, and in addition, for costs and counsel fees, $225.75, making, in the whole, $913,79, of which sum the sureties on the bond paid $650, leaving the balance due to the plaintiff.
    Second,—That on the 1st of February, 1849, an execution in favor of Mason & Thompson, against Sheldon & Duncan, was delivered to Dunlap for service, who levied the same, but afterwards released the property, under an agreement to transfer the levy to other property, wMch afterwards, and after the return day of the execution, he levied upon and sold ; that thereafter, one Charles T, Shelton, as mortgagee of the property thus sold, commenced an action in this court, against the plaintiff, and recovered a judgment therein, amounting, with interest, to $1,842.39, which plaintiff paid in September, 1852, and also paid for costs and counsel fee, in defending the suit, $263.82. The whole balance claimed to be due to the plaintiff was $2,535.35,
    The answer admitted the execution and delivery of the bond, and took issue upon the breaches.
    The cause was tried before Dube, J., and a jury.
    The plaintiff’s counsel, upon the trial, produced in evidence the bond upon which the action was brought, It was dated 16th January, 1847, and was executed under the hands and seals of Dunlap, the deputy, as principal, and of Peter Smith and the defendant, as his sureties,
    The condition is in these words ;
    “ The condition of this obligation is such, that if the said Thomas Dunlap shall in all things well and truly execute the office aforesaid; and if the said Thomas Dunlap, and the above bonnden Peter Smith and Bartlett Smith, their heirs, executors, and administrators, and every of them, do, and shall, from time to time, and all times hereafter, save and keep harmless and indemnified, the said John J. Y. Westervelt, sheriff as afore? said, his heirs, executors, and administrators, and every of them, and every of their goods and chattels, lands and tener ments of, touching and concerning, the execution and return of all such process, writs or warrants, of what nature soever, as are or shall be delivered to the sheriff of the said city and county of New York, or directed to him, and shall be brought and delivered, or offered to be delivered to the said Thomas Dunlap, during the time he, the said Thomas Dunlap, shall or may, by virtue of the warrant aforesaid, use or exercise the said office of deputy sheriff aforesaid; and shall also save and keep harmless and indemnified, the said John J. Y. Westervelt, his heirs, executors, and administrators, and every of them, of, from, and against all issues, fines, demands, damages, costs, and charges whatsoever, hereafter to be produced, imposed, prosecuted, demanded or demandable, of or against the said John J. Y. Westervelt, as sheriff as aforesaid, his heirs, executors, or administrators, or his or their goods or chattels, lands or tenements, for or by reason of any other neglect of any kind whatsoever, of the said Thomas Dunlap in executing wrongfully, or neglecting to execute the said office of deputy sheriff, for the said city and county, during the time aforesaid ; and also, for or by reason of any manner of nonfeasance, or misfeasance, or malconduct of the said Thomas Dunlap, in any wise touching the execution of his said office of deputy sheriff, during the time aforesaid, then the above obligation to be void and of no effect, else to be and remain in full force and. virtue,”
    The plaintiff’s counsel then put in evidence the records of the judgments which, as stated in the complaint, had been obtained against the plaintiff, and proved that the execution falsely returned, and that under color of which the property mortgaged to Shelton was sold, bad been placed in the hands of Dunlap as a deputy sheriff, and that the false returns and the sale were made by him. It was also proved that for the purpose of satisfying the judgments, and for costs and counsel fees in the defence of the suits, the plaintiff had paid the sums mentioned in the complaint. An affidavit, made by Dunlap, to procure a postponement of trial of Shelton v. Westervelt, in which he swore to the absence of one Wallenbeck, whose testimony, he swore, he had been advised by counsel, was material to him (Dunlap), was read in evidence to prove Dunlap’s knowledge of the pending of he action.
    It also appeared, from the testimony of Dunlap, who was examined as a witness, that he was present at the trial of both the actions, in which the judgments against the plaintiff were obtained,
    The counsel for the defendant objected in due time to the admissibility of the judgment records and executions, above mentioned, as evidence against the defendant, upon the ground that it had not been proved, that the defendant had any notice of the commencement or pendency of the actions in which the judgments were obtained, and had therefore no opportunity of defending the same. The objection was overruled by the court, and the counsel excepted.

      When the plaintiff rested, the counsel for the defendant moved, upon the same ground, that the complaint should be dismissed, The court denied the motion, and the cotinsel excepted, Other exceptions taken on the trial are omitted, as they were not insisted on at general term.
    When the testimony on both sides Was closed, the judge stopped the counsel from addressing the jury, stating that in his opinion there Was no question of fact necessary or proper to be submitted to their determination, and that he should instruct them that upon the evidence given the plaintiff was entitled to their Verdict for the full sum demanded by the complaint. The verdict would, however, be subject to the opinion of the court at general term, upon the questions of law that had been raised by the defendant’s counsel.
    The defendant’s counsel excepted to the refusal of the court to permit him to address the jury upon the facts,
    The jury, under the direction given to them, found a verdict for the plaintiff for $2,535-¡-Wj besides costs, subject to the opinion of the court at general term.

      A. J. Willard, for the defendant,
    now moved to set aside the verdict, and for a new trial, and rested his argument upon the following points and authorities,
    X. The plaintiff wholly failed to establish a breach of the deputy’s bond, and therefore the court erred in refusing to dismiss his complaint. 1. The only proof offered to establish a breach, were the judgment records in the respective suits of Thompson & Shelton against Westervelt; these records do not conclude the present defendant, and are not even prima facie evidence of a breach, the defendant having had no notice of their pendency, or opportunity to defend. (Blasdale v. Babcock, 1 J. R. 516; Kipp v. Brigham, 6 ib. 158, 7 ib. 167; Trustees Newburgh v. Galatin, 4 Cow. 340; Bartlett v. Campbell, 1 Wen. 50; Riley v. Seymour, 1 ib, 143; Hall v. Luther, 13 ib. 491; Peck v. Acker, 20 ib. 605; Oakley v. Aspinwall, 4 Coms. 513; Overseers v. Mumford, 2 Rand. Va. 313; Bender v. Fromburger, 4 Dall. 436; McKellar v. Powell, 4 Hawks (N. C.), 34; Beall v. Beck, 3 Harris & McHenry, 243.) 2, The plaintiff not only failed to prove notice to the defendant of the pendency of these suits, but failed to establish even no» tice to the deputy, Dunlap, (a.) The proof of notice must be by evidence extrinsic the record, and it is not competent to re» fer to statements in the record to establish such fact. (5.) The only extrinsic proof to this point is the affidavit of merits in the Shelton suit, and it was for the jury, and not for the court to say that this establishes the fact of an opportunity on the part of Dunlap to defend,
    H. The court erred in admitting the records in evidence,
    II. If the question of notice to Dunlap is to be regar ded as mate» rial, in reference to the defendant, the court erred in refusing to allow the defendant to go to the jury on the question of notice,
    TV. Defendant was. not liable for costs paid by plaintiff, at all events not for counsel fees. (Franklin v. Hart, 2 Hill, 671.)
    The learned counsel, in the course of his argument, proposed to show that it appeared upon the fade of the record, in the ease of Shelton v. Westervelt, that Dunlap, in Selling the property covered by Shelton’s mortgage, had not been guilty of any breach of the condition of his bond, i. e. that the sale was justifiable and lawful. But the court stopped him, saying that the question of the legality of the sale must be considered as finally decided by the judgment which they had pronounced in Shelton v. Westervelt (vide 1 Duer 109),

      A. J. Vanderpoel, contra,

    insisted that the plaintiff Was en» titled to judgment upon the verdict,
    I. The motion for a nonsuit was properly deified. It was hot necessary for the plaintiff, Westervelt, to give notice to the sureties of the deputy Of the actions brought against him by Bussell ahd by Shelton, The bond did not stipulate for notice as a condition of his liability, but was a general bond to “ indemnify and save harmless,” 1. Hurlstone declares the rule to be “ where the obligor of an indemnity bond undertakes generally to save harmless from the consequences of a particular act, the bond is forfeited upon the obligee being damnified; and it is not necessary that notice should be given to the obligor, whether the indemnity be against the acts of the obligee or a third person.” (Hurlstone on Bonds, 9 Law Lib. (old series) 93; Cutler v. Southern, 1 Saund. R. 117; Ker v. Mitchell, 2 Chitt. R. 487; Comyn Dig. “ Condition” T.) 2. The omission to give notice does not go to the right of action J the judgment in such case is at least primd facie evidence against the surety. But where notice is given, if the surety refuses to defend, the judgment becomes conclusive evidence, and estops the surety from denying that the defendant in the first action Was not bound to pay the money. (Duffield v. Scott, 3 T. R. 374; Aberdeen v. Blackmar, 6 Hill, 324; Smith v. Compton and others, 3 B. & Ad. 106; Andrus v. Beals, 9 Cow. 693; City of Lowell v. Parker, 10 Metc. 314, 315; the same effect has been given to a verdict where no judgment had been perfected; Lee v. Clark, 1 Hill, 56; State of Ohio v. Colerick, 3 Hammond, 487.)
    II. The plaintiff, upon the evidence, Was entitled to recover the amount paid by him upon the judgments recovered against him, and his costs in the defence of those suits. He proved every allegation in his Complaint, and the answer did not avoid them by new matter. 1. An undertaking to indemnify against a certain engagement, or a general guarantee, will extend to any expense which falls upon the obligee by reason of that engagement. (Hurlstone on Bonds, 93; Sparks v. Mantindale, 8 East. 593; Smith v. Compton, 3 B. & Ad.; 23 Eng. Com. Law R. 407.)
    HI. There was no conflict in the evidence, and no question of fact for the jury.
   By The Court. Bosworth, J.

The affidavit, made by Dunlap, to procure a postponement of the trial of Shelton against Westervelt, was read in evidence without objection. That shows very clearly that Dunlap himself not only had actual notice of the pendency of that suit, but undertook the defence of it, so far as to endeavor to procure the testimony of witnesses deemed material, and that its defence was regarded by him as a defence made by himself. It also appears, by his own testimony, that he was present at the trial of Russell v. Westernvelt, and that he therefore had notice of that suit, and, presumptively, an opportunity to defend it.

Considering the relation he occupied towards the sheriff, the fact of his having the exclusive control of the ■ executions, and the further fact, that, during the pendency of the stiit brought by Shelton, he made the affidavit, and deposed to the matters stated in it, to procure a postponement of that trial | and the further fact, that both suits were Commenced in the same month, and defended by the same attorneys, I think are evidence sufficient, uncontroverted, to justify a jury in finding that Dunlap had notice of the pendency of both suits, and an opportunity td defend. It was not obj écted, however, that sufficient notice of the pendency of these suits had not been given to Dunlap, but that no notice had been given to the defendant, his surety. If the view expressed, that there is sufficient proof of notice of them to Dunlap, be correct, then the judgments recovered against Westervelt were not only primé fade§ but were conclusive evidence of Dunlap’s liability to Westervelt, Co-extensive with that of Westervelt to those plaintiffs, according to the form, force, and effect of such recoveries.

If they would conclude Dunlap in an action against him, on this bond, the question remains whether they are any evidence of the liability of Bartlett Smith in this action? The question, in this case, is not whether they are conclusive evidence against the surety, but whether they are primó, fade evidence ?—after first proving that these executions were in the hands and under the control of Dunlap.

In Barlett v. Campbell (1 Wend. 50), Campbell signed as Surety for Jeffor ds an indemnity to the plaintiff as constable, to induce him to levy on, and sell, on an execution in favor of Jeffords, certain personal property. He did levy on and sell it. He was sued by A. Shaw, who claimed the property as his. The plaintiff gave notice of the Commencement of that suit to Jeffords, but not to Campbell, and allowed judgment to pass by default. Bartlett, in the suit against Campbell, was nonsuited because no notice of the suit had been given to the latter. The Supreme Court reversed the judgment solely on the ground that that decision was erroneous, and that notice td the principal was sufficient to make the judgment against the plaintiff prvrááfdóie evidence of the liability of the surety in an action against him,

Where a want of good faith, industry, and sound discretion in the defence of the suit is not pretended, notice to the surety, in a case like this, is practically an idle ceremony. The surety cannot he presumed to be cognizant of any facts connected with the defence. When his principal, the deputy, has had notice of the suit, has actually assumed its defence, and it has been fully tried on its merits. With the aid of all the information relative to the merits possessed by the party whose conduct is the subject of controversy, it cannot be presumed that another trial, when defended by the surety instead of the deputy, could be attended with any different result,

1 Euless some principle or right is clearly violated, by an ad» Iterance to the decision in Bartlett v. Campbell, it Would seem to be the duty of the court to follow it, It was decided some twenty-five years ago, and does not appear to have been since questioned by the court that made it,

The questions at issue, and to be determined in this action, are these: Had Dunlap so negligently performed his duties in respect to these tWo executions that Westervelt had been dam» nified thereby, and, if so, to what amount ? The evidence pro» duced established the facts, that as between Westervelt and the plaintiffs in those two executions, it had been incontrovertibly determined, that Westervelt should pay the amount of those two judgments, by reason of a neglect or improper performance of official duty, with respect to them, The evidence given was also conclusive against Dunlap that the fault was his own, and of his liability to pay to Westervelt the same amount, The liability of Dunlap to Westervelt, as between themselves, the defendants could not controvert 5 tio fraud, or want of good faith in conducting the defence being averred, (Candee v. Lord, 2 Coms. 275.) Dunlap being personally concluded as to his own liability, does not the evidence which establishes it, at least that of the defendant l

Does not evidence, which is conclusive against Dunlap of his breach of the bond, at leastprim&fdoie, prove his breach of it, as against the surety ? The reasoning of the court in Drummond v. Preston (12 Wheat. 515), directly supports this propo» sition, and affirms the principle, that evidence which is compe» tent to show the default and which establishes the liability of the principal, at least primd facie, establishes the liability of a surety, who has undertaken that the acts or omissions of his principal shall not damnify the plaintiff. In Drummond v. Preston, the court considered the case of Beal v. Beck, reported in 3 Harris and M'Henry, 243, and disapproved of it, if it was to be regarded that such a record was not primA facie evidence against a surety, but agreed that it was properly decided, if the record Was offered as conclusive against the surety.

In Lee v. Clark (1 Hill, 56), the condition of the bond was, that Parmenter (for whom Clark signed as surety) “ should pay or save the plaintiff harmless.” A verdict, in a suit against Parmenter, of Which Clark, the surety, had no notice, was heldprima facie evidence of the amount of the surety’s liability, Duffield v. Scott (3 T. R. 374) was cited as an authority eon» elusive Upon the case, and sound in its principles,

The bond in suit is conditioned, among other things, to inderm hify Westervelt against “all damages, costs, and charges whatsoever, hereafter to be imposed, or demandable of or against him.”

Certain damages, Costs, and charges are proved by evidence Conclusive, as against Dunlap, to have been imposed upon, and to be demandable of him, by reason of defaults of Dunlap, against Which the defendant undertook to indemnify him. This bond is conditioned against some of the same matters as that in Duffield v. Scott, viz, against “ all costs, charges, and expenses whatsoever, which the plaintiff, at any time thereafter, should pay, sustain, or be put tinto,” &c, (3 T. R. 374.)

The terms of the bond in suit imply, . that the obligors anticipated suits would be brought to charge the sheriff for alleged defaults of the deputy, Dunlap, and by it the obligors agreed to indemnify the plaintiff against all “issues and demands ” prosecuted, and against “ all fines, demanda, costs, and charges ” imposed or demandable of him by reason of such default.

When suits are proved to have been brought against the sheriff, which resulted in imposing demands, costs, and charges Upon him, which he has been compelled to pay, and such further evidence is given, competent as between these parties, as establishes conclusively the personal liability of Dunlap, as between him and the plaintiff, it seems to me that, as a matter of common sense,- it also establishes; jyrintA facie$ as against Ms surety, the fact of such liability, and that such damages; costs, and Charges were so imposed by reason of Dunlap’S default.

In Franklin v. Hunt (2 Hill; 671); which Was an action against the deputy, Anderson,- and his sureties, to recover a bill of costs, to which the sheriff had been subjected in successfully defending a suit brought to recover a penalty by reason of alleged violation of official duty by the deputy,- the pleader Merely alleged notice to the deputy,- and averred no notice to the sureties of such action, Although the case presents no question decisive of any point named in the case,- the pleadings indicate ah Understanding of the profession, that notice to the deputy, without notice to Ms sureties, Was sufficient to make the record of recovery against the sheriff, in stich a ease, evidence against the deputy’s surety.

In Lewis v. Knox (2 Bibb. 453); in an action on the suretybond of the deputy, the court below held the' record of a reco-» very against the sheriff for ncrt returning an execution; evidence of the deputy’s liability, without proof of the fact that the execution had been iu Ms hands. The court above reversed the judgment on the declared ground that the record was not evi-> dence, Unless accompanied with proof that the execution had been placed in the charg'd of the deputy. It" does not appear from the report of the case, that notice' of the suit was given to the deputy. The decision implies that the court was of the opinion that the record of the recovery against the sheriff, with proof that the deputy had charge of the executions; Was jyt'imd fade evidence of the liability of the deputy and Ms sureties in an action against them by the sheriff. (Vide Atkins v. Baily et al., 9 Yager, 111.)

In this case that evidence was given, and in addition to it, it was proved that the deputy had notice of the pendency of both actions against the sheriff, actually participated in the defence of one of them, and the inference is not an unreasonable one, that he took part in the defence of the other.

The theory of the rule, that notice to the sureties of an action brought against their principal, and the tender of an opportunity to defend, make the recovery against the principal conclusive against the latter is, that they operate to make the judgment, in legal effect, a judgment against themselves, "Whatever is conclusive evidence against the deputy is, at least, primó facie evidence against his sureties,

Tyler v. Ulmer (12 Mass. 164) was an action against the sheriff for the default of Hinott, his deputy, in not satisfying an execution out of goods Which the latter had attached at the suit of the plaintiff. The evidence that Hinott had received the execution in time to make it his duty to levy it, consisted of letters from him to the plaintiff’s attorney. To the admission of this -evidence the defendant excepted. The court held the letters to be properly admitted, and said that “ the action, although in form against the sheriff, is substantially against the deputy, who is immediately answerable over to the sheriff upon his bond, and against whom the verdict may be used as evidence ' to establish the claim of the sheriff against him.’

“We are also well satisfied that the practice has uniformly been to prove the necessary facts by the confession, oral or Written, of the deputy in actions against the sheriff.” (2 Phil. Ev., 7th edition, 379--380; Mott et al. v. Kip, 10 J. R. 473.)

City of Lowell v. Parker et al. (10 Metcalf, 309) Was an action brought in behalf of one Bean against Parker, a constable, and his sureties, to recover the amount of a judgment previously obtained by Bean against Parker, for the Value of property taken by the latter colore officii, 'Parker’s sureties had no notice of the pendency of that action, and the question was, Whether the judgment against Parker was evidence against the sureties of a breach of duty by Parker,

The court said: “But it is objected that this judgment was hot admissible, because the sureties were not notified, and therefore it Was res iter alios,' But we think this objection cannot be supported under the circumstances of this case. When one is responsible, by force of law ol- by contract, for the faithful performance of the duty of another, a judgment against that other for a failure in the performance of such duty, if not collusive, is primé facie evidence in a suit against the party so responsible for that other. If it can be made to appear that such judgment was obtained by fraud or collusion, it will be wholly set aside. But otherwise it is primó fade evidence, to stand until impeached or controlled, in whole or in part, by countervailing proofs.”

In the case last cited, the constable was concluded by a recovery against himself. Of the suit in which it was had, his sureties had no notice.

In the case before us, evidence of the deputy’s default which concluded him, was given. In either case such evidence was competent proof of his default in an action against the sureties, andjfriraA facie established it as against them.

In Train v. Gould (5 Pick. 380) the defendant agreed with the plaintiff, that one Ashley, who had given the plaintiff an indemnity bond against the consequences on levying on property pointed out by Ashley, should indemnify (him) in the premises according to the terms of his engagement to (the plaintiff),” The plaintiff was sued by one Touro for taking the property, and the latter recovered, Grould had no notice of the pendency of Touro’s suit against the plaintiff, but there was evidence tending to show that Ashley had notice of it. The evidence was not very explicit, and there was some reason to doubt whether Ashley had such notice as gave him an opportunity to defend it, The judgment recovered by Touro against the plaintiff was put in evidence against the objection of the defendant,

The court charged the jury that" if they were satisfied that Ashley had seasonable notice to prepare for the defence of that suit, they must consider it conclusive \ but if they were not so satisfied, they must consider it as only ymvrm facie evidence, and must determine upon all the evidence whether Touro ought to have recovered in that suit, and if so, how much.” The jury found for the plaintiff. The defendant moved for a new trial, upon exceptions taken to the decision of the court, and on a case on the further ground that the verdict was against evidence.

The court held the instructions given to the jury to be clearly correct, and stated that, from the amount of the damages found, it must be presumed the jury considered the judgment conclusive, •

It will be noticed that Train v. Gould was against the' surety only, and that his liability arose upon an instrument separate from that signed by Ashley, his principal, and of a subsequent date. In that respect, it was a weaker ease for the application of the rule which the court held to be controlling, than that of Bartlett v. Campbell (1 Wend. 50),

In this case it is not necessary to go as far as the court went .in Train v. Gould, to hold that the plaintiff is entitled to a judgment on the verdict. It is only necessary to hold, that as the evidence given was competent, and concluded Dunlap on the questions of his default, liability, and the extent of it, it prima faoie established them against Bartlett Smith, who, by his contract, undertook that Dunlap should not be guilty of any default, and that the plaintiff should not be damnified by it, This bond seems to be more than a contract of indemnity against damages to result from liabilities to which the sheriff may be subjected by reason of the deputy’s default. Its condition is totally unlike that of the bond in Gilbert v. Winans (1 Comst. 550), The condition of that was that the 4 sheriff should not sustain any damage or molestation whatever by reason of any act from this date done, or any liability incurred by and through said deputy,” The latter ease was held not to be an indemnity against a liability or charge, but against actual damages resulting from a liability or charge,

In this case the defendant contracts to indemnify the plaintiff " against all issues, fines, demands, damages, costs, and charges whatsoever, hereafter to he produced, imposed, prosecuted, demanded or demandable, of or against the said John J. Y. Westervelt, as sheriff as aforesaid.”

It is an indemnity against " damages imposed 5” " costs and charges imposed $” and " damages, costs, and charges demand-able” of him. If it is an undertaking that no damages should be demandable of him, aud no costs and charges imposed upon him by reason of Dunlap’s default, then it was an indemnity against a legal liability, and the recovery of the judgments against Westervelt, for the default of Dunlap, was itself a breach of the bond, and entitled the plaintiff to recover.

The terms of the condition would seem to be as comprehensive as the terms of the contract of indemnity in Chase v. Hinman (8 Wend. 452), and Warwick v. Richardson (10 Mees. & Welsby, 284). These were held to be indemnities against a legal liability, and those cases are cited with approbation in Gilbert v. Winans.

In Warwick v. Richardson, it was an indemnity against "claims made in this case, it is against" damages, costs, and charges imposed,” or "demandable,”

In this ease, the plaintiff was to be saved from damages, costs, and charges imposed upon, or demandable of Mm. That was the act to be done, Its non-performance was a breach of the bond, and the legal liability of the sheriff, or, in other words, the amount of the damages, costs, and charges imposed upon and demandable of him, is the measure of damages. Damages, costs, and charges have been iucoutrovertibly imposed, and are ineontrovertibly demandable to the amount of the judgments recovered, in “ issues prosecuted ” against the present plaintiff, Many of the cases already eited are full to the point, that the sheriff is equally entitled to recover the necessary costs of a defence, made in good faith, as the costs awarded against him, and forming part of the judgments.

Under all the circumstances of this case, we thinfe the sheriff is entitled to a judgment on the verdict,


author: By the Court.

text:
    See and another v. Partridge.
    The plaintiffs by their complaint demanded judgment as follows: 1. For a certain sum alleged to be the balance due to then) upon u building contract between them and the defendant 2. For another pum for extra work and materials, 8. For another sum as damages sustained by them by reason of having been hindered and delayed by the defendant in the completion of this work. And lastly i That a certain award, made by an arbitrator mutually chosen, in relation to certain disputes growing out of the contract* should be get aside aa obtained by fraud or undue influence.

      Held, that as equitable and legal relief may now be sought in the same action, and all the causes of action set forth in the complaint grew out of the same transaction, they were properly united.

      Held, that as the action was not for the recovery of money only, it was properly heard at special term without a jury, and that the court, although denying the equitable relief demanded, had power to grant any other relief epmietent with the ease made by the complaint and embraced within the issues.
    (Before Oakley, Ch. J., and Emmet, J.)
    November 9;

    December 10, 1853.

      Meld, therefore, that although the court at special term held the award to ha binding on the parties, its judgment in favor of the plaintiffs upon the other causes of action set forth in the complaint, was valid-judgment affirmed, with costs,
    Appeal by defendant from a judgment at special term, in favor of-the plaintiff» for $1,228,10, with costs.
    The action was tried before Bosworth, J,, at a special term, on the 28th May, 1853,
    The nature of the controversy, the questions raised and decided, and the exceptions taken, sufficiently appear in the statement of facts found, and in the opinion delivered by him.
    The judgment of the court, at special term, embracing the facts as found, is as follows;
    On the 6th February, the plaintiffs, of the one part, who were carpenters and partners under the partnership name of See & Brown, entered into a written contract with the defendant, of the other part, which was duly executed by all of the said parties, which contract was of the tenor and effect that is alleged in the complaint to have been, and a true copy thereof is annexed to the answer of the defendant in this action.
    That the plaintiffs fully executed the contract on their part, and obtained a certificate from the said architect, in the form and to the effect provided in and by the said contract, and furnished satisfactory evidence to the defendant that all the materials furnished and work done had been paid for by the plaintiffs, During the progress of the said buildings the defendant requested, and the plaintiffs, in pursuance of such request, made various alterations, deviations, additions, and omissions from the contract.
    That on the completion of the said buildings the sum of $1,850 of the said contract price was in arrear and unpaid by the defendant to the plaintiffs, and that no part of the same has been since paid by the defendant.
    That a dispute arose between the parties respecting the true value of said extra work, and also of the works omitted.
    That thereupon the parties entered into a written agreement, signed by them, and dated Hovember 8,1852, by which they agreed to abide the decision of John Millington, architect, as to the deductions to be made, or extras to be added, in settlement of the said contract.
    The architect, under the said agreement, entered upon an examination and consideration of the matters so submitted, and on the 10th of Hovember, 1852, made his decision in writing, and delivered it to the parties, by which he decided that there should be deducted from the contract price and allowed to the defendant by reason of work omitted and called for by the contract, the sum of $1,428. That there should be credited and allowed to the plaintiffs for extra work done by them, not called for by the contract, the sum of $712. That after crediting the defendant with the said sum of $1,428, and charging him with the said sum of $712, there was actually due and owing from the defendant to the plaintiffs, under the said contract, on the 10th of Hovember, 1852, the sum of $1,134, no part of which has been paid, which with the interest thereon to the date hereof, amounts to the sum of $1,178.10.
    That the said Millington did not appoint any time and place for the parties to appear before him, and be heard with respect to the matters so submitted, and neither of them did appear before or was heard by or spoke to him in respect thereto.
    That he was personally acquainted with and knew of the omissions and extra work to which the submission related, and all the parties verbally agreed and declared to him, at the time of the submission, that neither of them should appear before him or speak to him in relation thereto until after his decision should be made and published.
    Tire decision has not been acquiesced in by the plaintiffs, or acted upon by them, since it was made and announced.
    That said decision was made bond fide without any misrepresentations or any representations whatever being made, or any undue influence exercised, or attempted to be exercised, by the defendant. That the mason work done in the erection of said buildings was done by the defendant himself, and was so unreasonably delayed by him, that for that cause alone the plaintiffs were not only prevented from completing the bu""" within the time specified in thé contract, but were delayed several months thereafter in the completion thereof, and subjected to damages resulting from the loss of time of themselves and their servants, and the disadvantage at which they labored while actually working in the erection of said building, and resulting solely from the delay of the defendant in doing such mason work.
    That the damages resulting to the plaintiffs from that cause, amount to the sum of $50, which sum is included in and forms part of the amount hereinafter decided to be recoverable from the defendant by the plaintiffs.
    The plaintiffs objected to the admission of evidence to prove that it was verbally agreed between the parties that neither of them shóuld appear before and be heard by the arbitrator, on the matters so submitted, and excepted to the decision of the court admitting such evidence.
    The defendant objected to any proof of damages resulting from a delay in doing the mason’s work, on the grounds, fii'st, that the defendant had made no agreement in relation thereto ; and second, that this was an action merely to set aside the said award, and if the plaintiffs failed to obtaih such relief, he could not have any relief in this action and the complaint must be dismissed. The court overruled each objection, and the defendant excepted to such decision.
    On the facts so found the court decide that the said award was valid.
    That the plaintiffs might have any relief in this action con- • sistent with the case made by the complaint and embraced within the issues.
    That the plaintiffs were entitled to a judgment in this action for the sum of $1,228.10, the aggregate of the said two sums of $1,178.10 and of $50.
    That the plaintiffs must pay to the defendant his costs of this action, and that a judgment be entered accordingly.
    In support of this judgment the following opinion was deli-,, vered.
    Bosworth, J.—The defendant insists that this action is one solely for the purpose of setting aside an award, and that failing in obtaining that relief, the complaint must be dismissed.

      In this I think he is clearly -wrong. •
    The complaint sets out the contract, performance of it by the plaintiffs, and that $1,850 of the contract price was in arrear and unpaid.
    It alleges a breach of duty on the part of the defendant, resulting from his not doing the mason work, so that they could complete their contract by the time it required them to do, and by which they were subjected to losses, and claims damages for that cause to the amount of $500.
    It alleges the submission of some of the matters in controversy to an arbitrator, his award, and seeks to have it declared void, by reason of fraud and undue influence.
    It also alleges the performance of extra services, and the furnishing of extra materials, and claims to recover for that $1,615.70.
    It prays for judgment for $3,965.70, the aggregate of the sums claimed.
    The Code allows the plaintiffs to unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal, or equitable, or both, where they all arise out of the same transaction, or transactions connected with the same subject of action.
    The causes here united embrace such as were heretofore denominated legal and equitable. They are all connected with the same subject of action. They all arise out of the same transaction.
    This provision was designed to enable parties to litigate, and have determined in a single action, every claim to relief, connected with the same subject of action, whether the relief sought was legal, or equitable, or both.
    The provision as to the judgment that may be entered, is ample and broad enough to enable the courts to execute this design.
    While § 275 provides, that if there be no answer, the relief granted to the plaintiffs, cannot exceed that demanded in his complaint, yet in every other case, where an answer has been interposed, no matter what relief may have been prayed, “ the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.”

      It is clearly consistent with the case made by the complaint, to give the plaintiffs a judgment for such sum as is due to them if the award is held conclusive, or such sum as may be due, if it is avoided and annulled.
    The only question about which I have any doubt, relates to the claim for damages resulting from unreasonable delay in doing the mason work: the defendant has not stipulated in respect to this in the contract.
    Yet he did the mason work himself, the plaintiffs were unconditionally bound to do the carpenter’s work within a specified time. To accomplish this, they must not only provide the materials but employ the necessary hands. It was the legal duty of the defendant to keep the mason’s work in such a state of forwardness, as to enable the plaintiffs to perform their contract. For the damages resulting from a clear breach of this duty he should be held liable.
    There is much reason to suppose the damages were much more than the sum assessed. But the proof, under the ruling of the court, was slight and not specific, and in assessing them, no liberal conjectures in behalf of the plaintiffs can be indulged : they must be content with such as they have clearly proved.
    The plaintiffs having recovered sufficient damages to carry costs, if it was an action merely and nakedly for the recovery of money and seeking no other relief, and having failed to obtain the equitable relief sought or any part of it, it might seem a fair case, for subjecting each party to the payment of his own costs.
    There is much reason to apprehend that the defendant has lost a payment of $207 and some cents, for which he held a receipt, from his confident reliance on the proposition that if the plaintiffs failed to set aside the award they would have no relief, but then’ complaint must be dismissed.
    notwithstanding the defendant declined the offer made him by the court, to allow the cause to be adjourned to the next day to enable him to prove the receipt, I cannot resist the impression, that in the exercise of the discretion conferred by the Code, I should direct the plaintiffs to pay the defendant’s costs.

      — Leonard, for defendant and appellant,
    now insisted that the judgment at special term ought to be reversed, and a judgment ordered for the defendant, dismissing the complaint, with costs of the action and of the appeal; and argued as follows.
    I. Evidence of damages sustained by See and Brown, in consequence of the mason work not being done by the defendant as soon as they desired or expected, was inadmissible, and the exception in that respect is well taken. 1. Ho provision is contained in the contract requiring the defendant to finish the mason work at any specific period. 2. The defendant was entitled to a trial by jury on that issue. The issue relating to the validity of the award is the only one in this action which a judge, sitting without a jury, could properly try. (§§ 253,254, amended code.) 3. This action is not on the contract, nor is it on the award. This claim for damages does not arise out of the same transaction, and is improperly j oined. (§ 167, amended code.) 4. The evidence of damage was too indefinite and uncertain to justify any report in favor of the plaintiffs in that respect.
    II. The plaintiffs having brought their action to disaffirm the award, on the ground of fraud, &c., the judge was not authorized to render judgment in favor of the plaintiffs, as upon a complaint brought to recover upon an award acknowledged to be valid and binding on the parties. 1. The complaint asks to set aside the award for fraud, &c., and to recover about $3,900 under a state of facts, showing that the award is for a sum less than that for which in plain justice and equity it ought to have been made. 2. The judgment rendered required a reconstruction and amendment of the complaint, changing the whole nature of the action. (§§ 171,173, 275, amended code; Marquat v. Marquat & wife, 7 Howard’s Pr. R. 417; Alger v. Scovell, 5 id. 131.) 3. The course pursued by the court was in violation of the former rules and practice, and operated a surprise upon the defendant. It was the trial of a new and different issue from that made by the pleadings. Upon such an alteration or amendment of the complaint as is necessarily involved in the judgment rendered, the defendant was entitled to a continuance to another term, at the least, in order to procure his witnesses, and prepare for trial, or to acquiesce in the amended claim, if he thought proper.

      ■-Nash, for plaintiff, contra.

    I. The questions disposed of by the court were all properly put in issue by the pleadings, and the court was bound in law to decide all these questions in this action. 1. The plaintiff may unite in the same complaint several causes of action, legal or equitable, or both, where they all arise out of the same transaction, or out of contract, express or implied. (Code, § 167.) 2. By section 275, the court may grant—where an answer has been put in—any relief consistent with the case made and embraced within the issue. (Code, §§ 159, 275.) 4. The 167th section of the Code was revised and amended to meet certain decisions in the Supreme Court, relating to this union of legal and equitable actions. (Otis v. Sill, 8 Barb. Sup. C. R. 102.) 4. Prior to the introduction of the Code it was not necessary to file a bill, or make a motion for the purpose of getting rid of an award. (Butler v. The Mayor of the City of New York, 7 Hill, 331.)
    II. The defendant bound the plaintiffs in express terms in the contract to finish his work by a given period. And although the contract is silent as to the defendant’s duty in this respect, yet the law implies he shall not interpose any unreasonable delay to the plaintiffs’ completing by the time specified. (2 Blackstone’s Com. 443.) 1. It is a general principle applicable to all contracts that, whatever may be fairly implied from its terms, is, in judgment of law, contained in it. (Rogers v. Kneeland, 10 Wend. 218.)
    III. The defendant has committed a breach of this part of the contract to the plaintiffs’ damage, and he should be held liable to pay. 1. The defendant claims in his answer to deduct two hundred dollars from the contract price, as damages resulting to him by reason, as he alleges, of the failure of the plaintiffs to complete the work by the time fixed upon. ■ 2. It turned out on the trial that the plaintiffs had sustained damages by being prevented from fulfilling at the time by the defendant. The damages assessed were clearly proven.

      TV. The decision of the court should be affirmed, with costs.
   By the Court.

We think that all the questions that have been argued before us were rightly decided by the judge at special term ; and we deem it unnecessary to state any reasons for our opinion, in addition to those which he has given. He might, with entire propriety, have left the parties to bear separately their own costs, but the mode in which he has exercised his discretion in relation to the costs, is not an error, if an error at all, of which the defendant has any right to complain. The judgment is, therefore, affirmed with costs.