author: By the Court.—Sedgwick, J.

text:
    RUSSEL D. MINER, Plaintiff and Appellant, v. THE MAYOR, &c. OF THE CITY OF NEW YORK, Dependants and Respondents.
    The principal decision and direction of the court below to which the plaintiff excepted, was substantially as follows: “ On the trial, at the close of .the case, defendants’ counsel moved to dismiss the complaint.
    “1. Because plaintiff never had any title to the property in question (real estate).
    “ 2. If he ever had any title it was a mere naked legal title—paper title—an equitable title being in the city of New York.
    “ 3. That there is no evidence of fraud.
    “ 4. That the acts of the parties have located the land excluding the locus in quo, and that the evidence showed a practical location of these lands, and an adjustment of the lines'in accordance with the claims of the defendant.”
    The judge granted the motion and gave the following direction to the jury, viz:
    “ After looking carefully over the evidence that has been given on behalf of the defendants, and which is uncontradicted, and seems to be beyond dispute, I think that the defendants have sufficiently shown that there was a practical location of lot No. 143, described in the deed from the corporation to Wagstaff, by which practical location the strip now in question was excluded, and the same width of street on the north of the lot was taken in, and that there was an acquiescence on the the part of all the parties interested in such practical location for more than twenty if not more than twice twenty years.
    “I think the corporation has sufficiently shown that an adjustment of the boundaries took place in 1836 or 1837, and although that adjustment was not followed up by an exchange of deeds or releases, that it was followed up by a continuous, uninterrupted possession on the part of Woolley and his immediate grantees and assigns, and that such occupation has been maintained ever since, and Woolley and his assigns have had the benefit of a strip of.land on the north of his lot, which was more valuable then and is more valuable now than the strip in question in this action. Either ground, in my judgment, is sufficient to estop the plaintiff from asserting his title in any action, and a ground likewise sufficient to dispel the theory of fraud, which has been advanced by plaintiff. I therefore direct a verdict for the defendants.”

      Held, by the general term, that the evidence in respect to the title of the plaintiff to the land in question, was not conclusively in favor of the defendant, and the case should have been submitted to the jury, and a verdict should not have been directed, and therefore a new trial is granted.

    Among the questions of law considered, discussed, and decided are the following: The principles of law necessary for the the decision of"this case are those stated by the court of errors in Adams ®. Rockwell, 16 Wend. 285. This case has often been followed, and expressly approved in many cases. Terry v. Chandler, 16 W. T. 357, quotes the rule from Adams v. Rockwell: “ Where there can be no real doubt as to how the premises should be located according to certain known boundaries described in the deed, to establish a practical location different therefrom, there must be either a location which has been acquiesced in for a sufficientTength of time to bar a right of entry under the statute in reference to real estate, or the erroneous line must have been agreed upon between the parties claiming the land on both sides thereof. Or the party whose right is to be thus barred must have looked silently on and seen the other party do acts, or subject himself to expenses in relation to the land on the opposite side of the line, which would be an injury to him and which he would not have done if the line had not been located, in which case perhaps a grant might be presumed within twenty years.

      Where, in case the boundary line is fairly disputed, adjoining owners settle upon a line as a boundary line between their lands, and acquiesce therein,- the acts and parol agreement as to the line and the acquiescence are evidence as to the true boundary line, and if such acquiescence continue for a sufficiently long time, it may be less than twenty years, it is considered conclusive evidence that the line settled upon is the true boundary line. Yosburgh ®. Teator, 32 if". T. 561, in which Judge Potter said that such a settlement of a boundary line where equivalents of benefits or advantage are mutually received and acted on, will bind the parties to it, not by way of transferring title from one to the other, which the statute of frauds forbids, but operates by way of estoppel (Baldwin ®. Brown 16 JST. T. 359; Reed ®. Parr, 35 Id. 117; Reed ®. McCourt, 41 Id. 441; Ratcliffe®. Gray, 3 Keyes,' 510).
    Mere silent acquiescence in an adverse possession according to an erroneous line is no bar till it shall have continued for twenty years, although in a proper case it may be left to the jury to infero a grant (Jackson ®. McConnell, 19 Wend. 177.)
    Where there is no uncertainty as to the true boundary line, a mistake of an owner in pointing out an erroneous line as the boundary of' his property, or in asserting it to be the true line, is not conclusive upon him. It is, at most, an admission against himself which may be explained by testimony (Jackson v. Douglass, 8 J. 286; Stuyvesant ®. Tomkins, 9 Id. 61; Jackson ®. Woodruff, 1 Oow. 276).
    It is clear, that where there has not been any uncertainty of boundaries or of location, and possession has been transmitted by a grantor to a grantee under a conveyance, a parol agreement between them, that the land conveyed shall be deemed to be in another place, is wholly ineffectual.
    The law presumes that, where title is shown, the true owner is in possession, until adverse possession is proved to begin. Adverse possession does not begin until an actual entry is made, accompanied by a claim of title hostile to that of the true owner, and to bar a right of entry, it must be continuqus for twenty years (Jackson ®. Nestles,
    3 J. 124; La Prombois ®. Jackson, 8 Oow. 589; Jackson®. Sellick, 8 J. 202; Jackson ®. Sharp, 9 Id. 163 ; Humbert «. Trinity Church, 24 Wend. 587; Jackson ®. Thomas, 16 J. 293).
    The deed described premises as'bounded “on the south side by by another street of like breadth of sixty (60) feet between,” the lot conveyed and lot number 140, such street was laid down on a map but had never been used as a highway. Held, that the deed conveyed land to the center line of the street.
    The construction of deeds on this point, has been influenced by considerations of public policy. This has affected judicial decisions in the different States (American pote to Dav'aston 0, Payne, 2 Smith Lead. Oas.6 Am. ed. p. 228). In this State Judge Oaklet said, in Hammond 0. McLachlan, that “ principles of great public convenience forbade that, one should be the owner of a farm and another of a road or stream running through it. The practical inconvenience of a contrary rule has led to this construction uniformly, ■ unless where it expressly appears, that the parties intended the contrary,” and applied it-to lots in a city bounded ón a street.
    An exception to a direction to find a verdict for defendant, brings up on the appeal,' the question, whether, on any construction of the facts, the jury would have been warranted in finding for the plaintiff (Stone 0. Flower,-47 JST.Y. 566.)'
    Before Sedgwick, Yah Vorst, and Speir, JJ.

      Decided April 4, 1874.
    Verdict for defendant, by direction of court, exceptions to be heard in first instance at general term, and appeal from order denying motion for new trial on grounds of surprise and newly discovered evidence.
    Action was begun about October, 1869. ■ The com - plaint alleged, that before and at the opening of Seventy-eighth-street, the plaintiff was the owner'and seized in fee of “ all the northerly half of a certain street, 60 feet in width, lying between lots 140 and 143, as shown on a map of the common lands of the mayor, &c., of the city of New York, as surveyed by Cassimer Th. Q-oerck, in the year 1796, on file in the office of the comptroller of the city of New York. Bounded northerly by said lot 143 ; southerly by the center line of said sixty-feet street; easterly by the East Road, now the Fourth-avenue ; and westerly by the Middle Road, now the Fifth-avenue; as laid down on said map, being part of an old street laid' down on the map of the common lands of the defendants ; that in 1811, Seventy-eighth-street was opened through and along said premises, and said old street closed and relieved from public use ; that down to the time of the defendants obtaining from the plaintiff the conveyance of the premises, be was ignorant that Seventy-eighth-street had been opened or said old street closed, and that thereafter the defendants conveyed the premises to bona fide purchasers.
    The complaint further alleged/that while the plaintiff was thus ignorant, an agent of the defendants, by false and fraudulent concealment and representations, with intent to defraud, obtained from the plaintiff a conveyance by him to the defendants of the premises without consideration, but twenty-five dollars was left by the agent with the plaintiff, against the remonstrance of the latter, for his trouble ; that the value of the right, title and interest of the plaintiff in the premises was two hundred thousand dollars; and after formal allegations the complaint demanded judgment in that sum.
    The answer put in issue these allegations of the complaint, alleging that in 1850 Seventy-eighth-street was opened, and that the plaintiff, on June 7, 1866, by his deed, granted, sold, released, conveyed and confirmed to the defendants, then* successors and assigns, the-premises.
    The action was tried before a judge and jury in January, 1871.
    The following facts appeared in evidence :
    By deed dated June 7, 1866, acknowledged July 7, 1866, the plaintiff granted, bargained, sold, aliened, remised, released, conveyed and confirmed to the defendants and their successors and assigns, in fee simple, “all the northerly half of an old street lying between the lots No. 140 and 143 on the map of the common lands of the city of New York, bounded northerly by said lot No. 143, southerly by the center line of said old street, easterly by the East Road, and westerly by the Middle Road, as laid down on said map, subject to all taxes and assessments which were liens on the premises. The deed contained a covenant against plaintiff ’ s own acts, in the usual form. The consideration was stated to be twenty-five dollars.
    The present Fifth-avenue is on the ground which was Middle Road, and the present Fourth-avenue on what was Bast Road: The land in question is now on
    the southerly line of Seventy-eighth-street, and between Fourth and Fifth-avenues, its northerly boundary being about five feet north of the southerly line of Seventy-eighth-street, and is of great value. It is not necessary to give the facts attending the obtaining of the deed from the plaintiff to the defendants.
    . In April, 1794, the city being owners in fee simple of certain lands called the common lands, the common council directed the “unsold common lands to be surveyed and laid out into five-acre lots.” The lands were surveyed and a map of them made, dated March 1, 1796, and entitled “ A map of the common lands between the 3rd and 6th mile stones belonging to the corporation of the city of Hew York. Cassimer Th. Gróerck, City Surveyor.” The map indicates roads of the uniform width of sixty feet, as running from Middle Road to Bast Road at nearly right angles with them. Between these sixty-feet roads are laid down lots of the uniform depth of three chains and three links or two hundred feet.
    By common council proceedings of February 10, 1796, it appears that the common council agreed to a report of the committee on the common lands reporting that they had a “ survey made of the commons,, contemplating that the same may hereafter be improved as part of the city, to which end they have had streets regularly laid down,” and that the best mode of improving the same was to sell at public vendue one-half and to lease the others for the term of twenty-one years. The common council ordered that the same committee carry the report into effect, and that the sale commence on March 15 th next.
    May 1, 1801, the city conveyed to'David Wagstaff “All that certain piece or lot of land parcel of the - common lands of the said party of the first part situate in the 7th Ward of the said city, and described in the survey and map or chart of the said common lands, filed in the office of the clerk of said city, by the number 143, bounded on the west end by a road laid out on the said map called the Middle Road, on the- east end by another road laid out on the said map called the East Road, on the north side by a street sixty feet in breadth, between the said lot hereby granted and released and lot number 144, and on the south side by another street of like breadth of sixty feet between the said lot hereby granted and released and lot number 140, containing in breadth at each end three chains and three links, and in length on each side thirteen chains and ninety-three links.
    December 38, 1803, David Wagstaff conveyed the same premises by the same description in substance to Richard Lee.
    'May 1, 1824, the heirs of Richard Lee .conveyed to John Woodward all of lot, known on said -map as No. 143, “ that is to say, the said lot 143 is bounded on the west end by a certain road laid out on the said map called the 'Middle Road now the Eifth-avenue, on the east end by another road, laid out on the said map, called the East Road, on the north side by a street sixty feet in breadth between the said lot No. 143 hereby granted and released and lot No. 144. Contain-in breadth at each end, three chains and three links, and in length on each side thirteen chains and ninety-four links.” This description does not give specifically any southern boundary.
    July 11, 1833, John Woodward conveyed to William Wagstaff, the premises by the description contained in the deed of the city to David Wagstaff, excepting that East and West Roads are here called Fourth and Fifth-avenues, and chains and links are turned into feet, viz : “said lot containing in breadth at each end two hundred feet, and in length on each side nine hundred and twenty feet, be the same more or less.”
    December 12, 1834, William Wagstaff conveyed to Isaac M. Woolley the premises, by a like description in substance as to boundaries and dimensions.
    May 16, 1842, Isaac M. Woolley conyeyed to Russell D. Miner, the plaintiff, witli other property, all that lot known on said map by the No. 143, that is to say “the lot 143 is bounded on the east by the Fourth-avenue, on the west by the Fifth-avenue, on the north by a street sixty feet wide between said' lot hereby granted and lot 144, and on the south by another street of sixty feet in width between said lot hereby granted and lot 140.
    The sixty-feet streets or roads referred to in the conveyances were indicated, on the G-oerck map,- but they were never used as highways or otherwise opened. By act of April 3, 1807, entitled “An Act relative to improvements touching the laying out of streets and roads in the city of New York and for other purposes,” commissioners were appointed, to have exclusive power to lay out streets and roads in the northern part of the city, and to shut up or direct to be shut up, any streets or parts thereof, which had been theretofore laid out and not accepted by the common council, 'and by the act no square or plot of ground made by the intersection of any street, to be laid out by the commissioners should ever after the streets around the same should be opened, be or remain divided by any public or open lane, alley, street, or thoroughfare.
    About April 1, 1811, the commissioners under the act laid out by a survey the streets, and filed their map. On it were indicated Seventy-eighth and Seventy-ninth-streets among other streets. These streets were not, .however, opened for use as highways until Seventy-ninth-street, was some time before or about 1827, and until Seventy-eighth-street was, in the year 1850. As so laid down and as afterwards opened, the southerly line of Seventy-ninth-street coincided almost exactly with the northerly line of the sixty-feet street on the Q-oerck map, between the lot 143, conveyed as above stated, and the lot Ho. 144 to the north of it. But Seventy-eighth-street, as laid down on the commissioners’ map and as afterwards opened, was partly on lot Ho. 143, and a strip of its southerly part, running from Fourth to Fifth-avenues about five feet in width, was upon the north part of the old street between lots Ho. 143 and Ho. 140 on the Goerck map.
    After Seventy-eighth and Seventy-ninth-streets were thus laid down on the map, and before Seventy-eighth-street was opened in 1850, and on October 8, 1886, Isaac M. Woolley; then owner, mortgaged to Joshua Jones, trustee, thirty lots bounded as follows: “ Westerly by the Fifth-a venue two hundred feet, northerly by Seventy-ninth-street three hundred and seventy-five feet, easterly by other land of said Isaac M. Woolley two hundred feet, and southerly by Seventy-eighth-street three 'hundred and seventy-five feet, being part and parcel of the premises conveyed to said Isaac M. Woolley by William Wagstaff. Ho reference to map was made.
    On April 1, 1837, Isaac M. Woolley mortgaged to William Irvine, all that lot lying between Fourth and Fifth-avenues and Seventy-eighth and Seventy-ninth-streets, bounded as follows : “ Beginning at a point on the southerly side of Seventy-eighth-street three hundred and seventy-five feet easterly from the corner of Fifth-avenue and Seventy, eighth-street, and running thence northerly and parallel to the Fifth-avenue to the northerly line of Seventy-ninth-street, thence easterly along the northerly line of Seventy-ninth-street one hundred and fifty feet, thence southerly and parallel to the Fifth-avenue to Seventy-eighth-street aforesaid, and thence westerly along the northerly line of Seventy-eighth-street to the place of beginning.” There is an evidently unintentional confusion in these boundaries. No reference was made to maps.
    On May 30, 1839, Isaac W. Woolley mortgaged to an association for the relief of aged females, all that certain piece of land “ being part of a lot known on a map of the common lands of the corporation of the said city by the number 143, commencing at the southwesterly corner of the Fourth-avenue and Seventy-ninth-street, and running thence westerly along the southerly side of Seventy-ninth-street three hundred and twenty-five feet, thence at right angles with the Fourth-avenue two hundred feet "to the northerly side of Seventy-eighth-street, thence along the said northerly side of Seventy-eighth-street three hundred and twenty-five feet to the corner of the Fourth-avenue, and thence along the Fourth-avenue two hundred feet to the place of beginning, containing twenty-six lots of land.” It will be noticed that the second boundary line is incorrectly stated to run at right angles with the Fourth-avenue.
    In 1843 and 1843, and when the plaintiff here, Russell D. Miner, was owner, these .three mortgages were foreclosed, and the land mortgaged was purchased by the mortgagees, to whom masters’ deeds were made, containing the description of the mortgages.
    In 1844, William Irvine brought a suit in chancery, against Woolley and Miner. After appearance, the bill was taken as confessed by them and a decree was made, that the conveyance of Woolley to Miner above "specified, was made to hinder and delay the creditors of Woolley, of whom the complainant Irvine was one. It was further decreed that Miner deliver to Irvine, the complainant, a deed of the premises described in the decree, in extinguishment of the debt due to Irvine, or that Miner sell the premises at public auction, and pay over the proceeds to the complainant to the amount of the debt.
    On November 2, 1844, • and as the case states, in pursuance of the decree, Russell D. Miner, the plaintiff here, in consideration of one thousand one hundred and seventy-eight dollars and seventy-one cents, conveyed to Irvine, with a covenant against his own acts, all those six certain lots “being in'the block bounded northerly by Seventy-ninth-street, southerly by
    Seventy-eighth-street, easterly by Fourth-avenue, and westerly by Fifth-avenue, and are bounded as follows: Beginning at a point in the northerly line of Seventy-eighth-street, distant three hundred and twenty-five feet westerly from the northwesterly corner of Seventy-eighth-street and Fourth-avenue, and running thence westerly along said northerly line of Seventy-eighth-street seventy feet, thence northerly and parallel to Fourth-avenue to the southerly line of Seventy-ninth street, thence easterly along said southerly line .of Seventy-ninth-street seventy feet, thence southerly and parallel to the Fourth-avenue to the place of beginning.” The description is the same as that contained in the decree last mentioned.' The mortgages and this deed cover the whole breadth between Fourth and Fifth-avenues, viz: nine hundred and twenty feet.
    November 10, 1834, William Wagstaflf, having as appears by the report of the committee, with others made a petition for an adjustment of the boundaries of the common land lots owned by them in fee, he then owning lot No. 143, the finance committee reported that the subject had been pending three years; that the commissioners under the act of 1807 did not adopt the streets already laid out by the survey of 1796, but projected a new plan, in which, although the lines of the new streets are generally near or overlapping the lines-of the old streets, “gores or strips of land of more or less width were created between the lines of the old and - new streets, and in some instances those gores are of considerable extent, from the fact that fifteen of the streets so laid out by the commissioners are one hundred feet wide. The effect of this has been to cut off and appropriate for streets part of one side of a lot and to throw between the other side of the same- lot and the . new street, a strip of land intended as part of a street by the-old survey of 1796, thus abridging the dimensions of the lot on the one side, and depriving it of its front on the otherthat the old streets can never be opened and used as such, and they now exist only in deeds and leases of the corporation, -given many years ago, and the maps annexed to them, “ to which every purchaser refers as a warrantee that his lot shall have the benefit of fronting on each side on a street; that embarrassments exist only as to land sold, because the old leases having expired, the new leases provided against difficulty arising from the question of boundaries ; that purchasers are entitled to a settlement of their boundary- lines and a fulfilment of their right in respect to fronting on streets, so as to place them in as good a situation at least as they would have been in if the streets, by the survey of 1796, by which their lands were bounded, had not been abolished; that every purchaser has a right to as much land as his deed purports to give him, and that he is entitled to as much front on a street, such streets to be equal in width to that re-" ferred to in the deed ; -but as some blocks had been increased in width, a larger strip was added on oiie side, than was cut off for a street on the other,” that the question is presented, upon what terms the owner should acquire the surplus land, that to exchange gore for gore with .the corporation, without regard to quantity, would occasion loss to the corporation, and that xvhere the settlement of a boundary line of a lot, to give a street front must increase,the quantity of land over that stated in the deed, the increase should be paid for, but as middle or rear land ; that “ the owners of common land lots, who by the change in the place of streets, and a subsequent adjustment of boundary and exchange of possession with the corporation should obtain the benefit. of having fronts on a one hundred-feet street instead of a sixty-feet street, ought, in making such adjustment, to be as it were debited with the value of such benefit,” that the owners of common land lots manifest a disposition to have the subject arranged on fair terms-, but that it can be disposed of only gradually, and by a separate arrangement with each individual owner, and the committee concluded by offering a resolution that where an owner applied to the common council for an adjustment of boundaries, the application should be referred to the finance committee, who were to be authorized to treat and arbitrate with the applicant, “upon what terms, according to the principle of the report, the said boundary line should be adjusted.”-
    September 26,1836, Isaac M. Woolley, being owner of lot 143 and of lot 147, presented to the board of aldermen a petition that “the lines maybe adjusted so as to correspond with the present streets.”
    This was referred to the finance committee, and the resolution by them reported was approved by the mayor, February 22, 1837. The report was that when the lines of the lots Nos. 143 and 147 shall have been adjusted according to the present streets, the first of the said pieces will constitute the block bounded by Seventy-eighth and Seventy-ninth-streets and the Fourth and Fifth-avenues; that in order to adjust its lines it will be necessary to convey to Mr. Woolley a strip of land on the northerly side of his.lot running from the Fourth to the Fifth-avenuf, and being fifty-seven feet five inches on the. Fourth, ánd sixty feet wide on the Fifth-avenue (the said strip being part of the old street) and to receive from Mr. Woolley a conveyance of a strip of land, forming a part of the present Seventy-eighth-street and being fifty-five feet wide on the Fourth, and fifty-five feet seven inches wide on the Fifth-avenue,” that by the exchange of gores Mr. Woolley would acquire a front on Seyenty-ninth-street, which is one hundred feet wide, and has been opened ; that the gore to be conveyed to Mr. Woolley had been assessed for the opening of Seventy-ninth-street four hundred and thirty-four dollars, which had been paid by the corporation, 'and that therefore Mr. Woolley should pay for the difference in value, one hun'dred and twenty-five dollars, and the amount of the assessment, four hundred and thirty-four dollars. The committee reported a resolution, “That the counsel prepare the proper conveyances between the corpora-, tion and Isaac M. Woolley to carry the said exchanges into effect, upon the terms mentioned in this report, and that the said conveyances be executed in the usual manner and delivered upon Mr.’Woolley complying with the said terms and paying the expenses of such conveyances for such respective parcels after the counsel, shall have ascertained that the title of the said Isaac M. Woolley is good.”
    On the Goerck map. the lines of the lots and the coloring were so made, the number being inside of the space between the sixty-feet streets, that the old street to the north of each lot seemed to be wholly a part of the lot. There was evidence as to the lots ‘ generally, that the grantees and lessees of the city, took possession of . the old streets on the north of their lots, by permission of the corporation.
    Mr. Ludlam, who surveyed these lands for the city in 1822 testified that in that year there was an old fence running from Fourth to Fifth-avenue, which was situate on lot No. 143 upon the site of Seventy-eighth-street, as laid out, but not on any part of the old street. This fence was joined to fences on the Fourth and Fifth-avenues, and with a fence on the northerly part of the old street on the north formed an enclosure. The fence on the' south looked as if it had been standing ten or fifteen years. The same witness testified that there was also in 1822 another fence near this fence on the south and which had been placed on the northerly part of the old street on the south. This fence was so joined to others that it formed an enclosure, in which was lot No. 140, owned by the corporation, next south of lot No. 143.
    In September, 1836, Woolley, as owner, put a tenant (Miller) in possession of land between' Seventy-ninth-street and the northerly line of Seventy-eighth-street, and said to him that he owned seventy-two lots there, and that the lot on the south belonged to the city. At that time the fences on the south, referred to by Mr. Ludlam, did not exist. • But there were indications that there had been a fence on the south of the land leased, and Woolley pointed out the line of these indications as the boundary of the land he owned.
    About that time Woolley built for his tenant a picket fence in place of an old fence along the southerly line of Seventy-ninth-street. Woolley’s tenant remained in possession from 1836 to 1840. He again wept into occupation, as tenant, from April to August, 1841, and then from 1843 to 1858.
    In June, 1841, Allerton, as lessee of the city of lot No. 140 on the south, built a fence on the north part of the old street between lots Nos. 143 and 140, and occupied the land to the south of that fence, as the city’s tenant from that date to 1852.
    The leases of the city to Allerton given in evidence (one dated April 12, 1842, and the other dated in the year 1848 but without day or month) give- no description by metes and bounds of the demised premises, and state it to be the lot No. 140 on the map, and was made subject to any adjustment of boundaries that might be made between the city and any of the owners of lots on the Gtoerck map.
    In 1856 or 1857, Seventy-eighth-street was graded. When that work began both sides of the street were fenced in. The grading, however, carried away both these fences.
    In 1858, the city leased a city lot on the southeast corner of Seventy-eighth-street and" Fifth-avenue, part of the premises in dispute. The tenant went into possession, putting on the demised land an old house, removed from the Central Park, and remained there until the city sold the whole o.f the property in 1866.
    From 1851 to 1866 the city paid all assessments upon the' land now in question.
    On the trial, at close of plaintiff’s case, the defendants’ counsel moved that the complaint be dismissed on several specified grounds, among them, that the plaintiff had never any title to the property in question, and that the acts of the parties had located the land covered by the conveyances of plaintiff’s grantors excluding the locus in quo.

    The court denied the motion, and then decided that the conveyance of lot 143 by the corporation conveyed land to the* center lines of the old streets on the north and south.
    At the end of the whole case defendants’ counsel again moved to dismiss the complaint on the grounds he had already stated, "and also on the ground that the-evidence showed a practical location of these-lands and adjustment of the lines in accordance with the claim of the defendants.
    The judge granted the motion, and gave the following direction to the jury, viz: “that the defendants have sufficiently shown that there was a practical location of lot No. 143, described in the deed from the corporation to Wagstaff, by which practical location the strip now in question was excluded, and the same width of street on the north of the lot was taken in, and that there was an acquiescence on the part of all the parties interested in such practical location for more than twenty, if not more than twice twenty, years.” And that the defendants had shown “that an adjustment of the boundaries took place in 1836 or 1837, and although that adjustment was not followed up by an exchange of deeds or releases, it was followed up by a continuous, uninterrupted possession on the part of Woolley and his immediate grantees and assigns, and that such occupation has been maintained ever since, and Woolley and his assigns have had the benefit of a strip of land on the north of his lot, which was more valuable then and is more valuable now than the strip in question in this action. Either ground, in my judgment, is sufficient to estop the plaintiff from asserting his title in any action, and a ground likewise sufficient to dispel the theory of fraud which has been advanced by plaintiff. I therefore direc t a verdict for the defendants. ’ ’
    The plaintiff duly excepted to the decision and the direction, and the court ordered that the exceptions be heard at general term in the first instance.

      Marsh & Wallis, attorneys for plaintiff and appellant.

      Luther It. Marsh, of counsel.

      B. Lelafleld Smith, attorney, and A. S. Sullivan and A. J. Vanderpoel, of counsel for defendants and respondents.

       Note. —The facts are too numerous for statement in head notes, but they appear fully, and the points of law decided as applicable to them, in the .statement and opinion of the court by Sedgwick, J.

   By the Court.—Sedgwick, J.

In substance, the learned judge, on the trial, decided that the plaintiff at the time of his conveyance to the city, of the strip in question, had no title thereto, and I think he took the correct view that if he had no title, there was no concealment, no misrepresentation, no fraud and no damage. The principal question in the case is, therefore, whether the judge was correct in holding as a matter of law that it had been shown that the plaintiff had no title.

The principles of law necessary for the decision of this case, are those I think stated by the court of errors in Adams v. Rockwell, 16 Wend, 285. This case has often been followed, and expressly approved in many cases. Terry v. Chandler, 16 N. Y. 1357, quotes the rule from Adams v. Rockwell: “Where there can be no real doubt, as to how the premises should be located according to certain known boundaries described in the deed, to establish a practical location different therefrom, there must be either a location which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute in reference to real estate, or the erroneous line must have been agreed upon between the parties claiming the land on both sides thereof. Or the party whose right is to be thus barred must have looked silently on and seen the other party do acts or subject himself to expenses in relation to the land on the opposite side of the line, which would be an injury to him, and which he would not have done if the line had not been located, in which case perhaps a grant might be presumed within twenty years” (Jackson v. Ogden, 7 Johns. 238; Jackson v. Freer, 17 Johns. 29; Rockwell v. Adams, 6 Wend. 467, was reversed in the court of errors, 16 Id. 288 ; Hubbell v. McCullough, 47 Barb. 287). It is hardly necessary to observe, that it is not meant that a mere agreement between the parties claiming on both sides of the line, transfers a title to land.

Where, in case the boundary line is fairly disputed, adjoining owners settle upon a line as a boundary line between their lands and acquiesce therein, their acts and parol agreement as to the line and the acquiescence are evidence as to the true boundary line, and if such acquiescence continue for a sufficiently long time, it .may be less than twenty years, it is considered conclusive evidence that the line settled upon is the true boundary line. Vosburgh v. Teator, 32 N. Y. 561, in which Judge Potter said that such a settlement of a boundary line where equivalents óf benefits or advantage are mutually received and acted on, will bind the parties to it, not by way of transferring title from one to the other, which the statute of frauds forbids, but operates by way of estoppel (Baldwin v. Brown, 16 N. Y. 359 ; Reed v. Farr, 35 Id. 117; Reed v. McCourt, 41 Id. 441; Ratcliffe v. Gray, 3 Keyes, 510).

And in such case without acquiescence for such a length of time as to make conclusive evidence and without an estoppel, a mistake of one or both parties, as to the facts, operates in like manner as it will in cases not affecting real estate (Coon v. Smith, 29 N. Y. 395).

Mere silent acquiescence. in an adverse possession according to an erroneous line, is no bar till it shall have continued for twenty years, although in a proper case it may be left to the jury to infer a grant (Jackson v. McConnell, 19 Wend. 177). Where there is no uncertainty as to the true boundary line, a mistake of an owner in pointing out an erroneous line as the boundary of his property, or in asserting it to be the true line, is not conclusive upon him. It is at most an admission against himself, which may be explained by testimony (Jackson v. Douglass, 8 Johns. 286; Stuyvesant v. Tomkins, 9 Id. 61; Jackson v. Woodruff, 1 Cow. 276).

It is clear that where there has not been any uncertainty of boundaries or of location, and possession has been transmitted by a grantor to a grantee under a conveyance, a parol agreement between them that the land conveyed shall be deemed to be in another place, is wholly ineffectual.

The learned judge at the trial decided, that the conveyance to Wagstaff, by the city, under which the plaintiff claims, comprised land to the center of the two sixty feet streets on the north and south. In such case, the half of each street was part of the land granted. Wagstaff was the exclusive owner of the fee, of that part of each road, subject to the right of the public to. use it as a highway. Any use of it, by another person, except for a street or road, would have been a trespass upon the owner’s fee (2 Star. 1004; Goodtitle v. Alker, 1 Burr. 133 ; Jackson v. Hathaway, 15 Johns. 447 ; Whitbeck v. Cook, Id. 483 ; Cortelyou v. Van Brundt, 2 Id. 357; Gidney v. Earl, 12 Wend. 98 ; Babcock v. Lamb, 1 Cow. 238 ; Adams v. Rivers, 11 Barb. 391; Carpenter v. O. & S. R. R. Co., 24 N. Y. 655).

Therefore, the land owned in fee by Woolley, who succeeded to" Wagstaff’s right by various deeds, was in depth, the distance between the two old streets, viz : two hundred feet, and the half of each street, viz: sixty, together, two hundred and sixty feet. The depth of lot 143, was (so far as it was indicated by figures), stated, on the Goerck map and in the deeds referring to it, and in the documents used o.n the trial, in reference to what was called the adjustment of the boundaries, to be two hundred feet between the two streets. ' This,

I think, was one source of the mistake, of Woolley’s fee in the other sixty feet, being left out of view by both, as I believe, the corporation and Woolley him- 1 self.

In 1811, or about that time, the commissioners, by authority of the act of 1807, made a survey and map by which they designated upon lot 143, Seventy-eighth-street, sixty feet wide, as a public street. This was laid down as having its southerly line about twenty-five feet and seven inches north of the southerly line of Woolley’ s land, that is the center line of the old street (Exhibit No.,4.) Four feet and seven inches of the south part of Seventy-eighth street, was placed upon the old road. On the north of the lot, Seventy-ninth street was in like manner laid down, with its southerly line almost exactly corresponding with the northerly line of the old street on the north, that is, about thirty feet north from the center of that old street, and from the northern line of Woolley’s fee. There was no contest on the argument, that by force of the act of 1807 the old streets were not abandoned as sites of highways after the survey and designation by the commissioners of the new streets.

We see then that as a matter of fact, Woolley, plaintiff’s grantor, was owner in fee, with undisputed title to the lot of two hundred and sixty feet in depth, subject to the rights acquired by the public or the corporation, in the land, on which Seventy-eighth-street was placed. No question arises in this case, as, to the nature of these rights. This left two distinct pieces of land of which Woolley had the right of exclusive enjoyment. One was north of Seventy-eighth-street about one hundred and seventy-four feet in depth, running from the center line of the old street on the north, to the north line of Seventy-eighth-street. The other ran about twenty-six feet in depth from the south line of Seventy-eighth-street to the center line of the old street, on the south. If the old streets had been freed from their devotion to public use, and Seventy-eighth street had not been placed, he would have had a perfect right, legally and equitably, to the exclusive use and enjoyment of a lot two hundred and sixty feet deep.

We have to see now if the testimony conclusively shows, that the title to this second and southern piece of land, ever went from Woolley or Ms grantee, the plaintiff.

Before 1833, when, so far as the evidence shows, negotiations between the city and the owner of lot 143 began, there never was any doubt as to the actual place where the lot was. . If it is admitted that, looking at the map of G-oerck alone, there might be a .doubt as to whether the whole of the old cross road on the north was not part of the lot itself, yet that would only require a construction of the deed which conveyed the property in connection with the map, and the true legal construction left no uncertainty as to what lines included the land conveyed. There is no evidence, that as to any of the boundaries, laid down on the map, there was any doubt of where they were to be placed on the soil itself, when actual occupation should be taken. The real complaint made, as we learn from the documents, was not that the lot 143 (as it was termed) in fact and in law, was situated between the new Seventy-eighth and Seventy-ninth-streets, but that it was not there, as both sides knew and agreéd.

Whatever dissatisfaction-there was, in respect to the subject of the adjustment of boundaries, had not been settled when the report on William Wagstaff’s petition was made in November, 1834, but the committee states that the subject had been pending before the common council for about three, years. This of itself prevents a legal inference that there was undisputed evidence in the case, that before that time, a piece of land, which excluded the one in question, and having] new boundaries, had been taken possession of, by the consent, not to say agreement, of both parties, to be held by Woolley in lieu of the piece of land he had formerly occupied.

So far as this title .is affected by things done with the concurrence of the opposing parties, we have to look to the reports of committees of the common connoil, and the acts shown in the case, if any there are, to have been done with reference to those reports.

William Wagstaff, when owner of lot 143, and others, made their petition November 10, 1834, to the common council for an adjustment of the boundaries of common land lots owned by them in fee. The finance committee made its report. This did not result in any agreement, for Woolley, having become owner, made his petition September 26, 1836. This was the subject of reports in evidence. A resolution, approved February 22, 1837, was passed, that conveyances be made, to carry out ' the recommendations of the reports, as to the mode of settling the difference between the corporation and Woolley.

From these papers it is clear that Woolley only claimed to own lot 143, as it was constituted by the old deed and map. The corporation admitted this claim. Neither presented any statement of a doubt as to where that lot was. The owner claimed that the old map and deed “was a warrantee that his lot was to have the benefit of fronting on each side on a street,” andvcalled on the corporation to make good their undertaking. The committee could not deny that the owners were entitled to require a settlement of the boundary lines, and.a fulfillment of their rights in respect to fronting on streets so as to place them in as good a situation at least “as they would have been in, if the streets laid out by the survey of 1796 had not been abolished.” In Mr. Woolley’s case, the committee reported that when the lines of the piece of land known on the map of common land by the number 143, “ shall have been adjusted according to the present streets,” it “will constitute the block bounded by Seventy-eighth and Seventy-ninth-streets and the Fourth-avenue. This “adjustment of boundaries” was in fact an exchange of definite pieces of land, for the committee report that in order to adjust the lines of the first mentioned piece, it will be necessary to convey to Mr. Woolley a strip of land on the northerly side of his lot, running from the Fourth.to the Fifth-avenue, and being fifty-seven feet five inches on the Fourth, and sixty feet wide on the Fifth-avenue, the said strip being part of the old street, and to receive from Mr. Woolley a conveyance of a strip of land forming a part of Seventy-eighth-street, and being fifty-five feet wide on the Fourth, and fifty-five feet seven" inches wide on the Fifth-avenue. But the last strip was more valuable than the first, to the amount of one hundred and twenty-five dollars, and the city had also been assessed on it, and had paid four hundred and thirty-four dollars. These sums the committee reported Woolley should pay to effect the “adjustment of boundaries.”

So far. as the defendants depend upon proof, direct or circumstantial, that an agreement was made and accepted, they cannot demand any better result than would follow the acceptance and consummation of what they proposed to be done.

We now assume that the conveyance had been delivered as the defendant proposed. This would constitute the only adjustment of boundaries there was in the minds of the parties. The property of each would remain where and what it was before the adjustment of boundaries, except so far as that adjustment made a change.

Woolley would have lost no other land than that to be described in the conveyance he was required to make. That would not have comprised any part of the old street on the south, or any part of the land in question. The reports of the committees treat the old streets as closed. E'er is there any description contained in the reports which would carry the north half of the street, attached to the land to be conveyed.

We will however see, if the evidence was conclusive that Woolley had accepted the proposal or acted upon it, so as to be deemed to assent to it. We leave aside the specific rules that regard the transfer of real property.

Woolley had not himself asked for any particular mode of settling the difference. There is no direct evidence that he gave assent to the city’s plan. In September, 1836, he put his tenant in possession of land running to Seventy-ninth-street, and pointed out as his southern line the northern line of Seventy-eighth-street, and said the lot below belonged to the corporation. In October, 1836, he mortgaged land part of lot 143, bounded in the mortgage by Seventy-eighth and Seventy-ninth-streets. But this occurred before the city had taken its position, for the resolution to make the exchange with Woolley was not approved until February 22, 1837. There was therefore no concurrence betwen the two up to that time. After the resolution passed he made two mortgages, bounding the property mortgaged by Seventy-eighth and Seventy-ninth-streets, but his purpose in that may as well be referred to the considerations that moved him to do the like before the city had made its proposal, as to the proposal. At least it is not conclusive evidence of his having acted upon the city’s proposal.

There can be no stronger position for the defendant than that W oolley having (before he presented his petition) taken possession of that part of the land that the city afterwards proposed to convey to him, and the resolution proposing to convey that part to him, being made to accomplish what he wished, together with his remaining in possession after the resolution passed and the acts that it is alleged were done by the city as regards occupying the old road on the south, now claimed, prove that Woolley acceded to the city’s proposal.

This must be viewed from two positions, the one that the city and Woolley recognized the latter’s title to half of the old streets, and the other that they did not. If they did not, then there was no intention or understanding that his title to that should be affected by the arrangement, and his acquiescence in the city’s adverse possession short of twenty years would not destroy his title.

On the other hand, if the title was in view at the time, Woolley’s retaining the city’s land cannot create a conclusive presumption that he acceded to an arrangement, which, if it deprived him of the land in question, would have been as inequitable and unjust as his retaining city land without compensation would have been to the city. The result would have been that the city would take this, strip in question twenty-five feet deep, and the strip on which in part Seventy-eighth-street was placed, fifty-six feet deep, depriving him of fee in either Seventy-eighth or Seventy-ninth-street, and convey to him thirty feet only, inasmuch as of the sixty feet strip they proposed to convey to him, .one half was already his own. There can be no rule of law, that his taking adverse possession of the land is conclusive proof that he meant to give up another piece of land without compensation, when the substantial justice of the arrangement did not call upon him to do this. If, in effect, the understanding was, that instead of the block between the old streets the owner should occupy and take a like block between the new streets, releasing what would be abandoned, to do justice it would be necessary that a right corresponding to the fee of the old street, or a compensation for it, should have accompanied the change. As to what was meant and understood, as indicated by the acts of the parties, it must be remembered that if Woolley took possession of thirty feet of the city’s property on Seventy-ninth-street the latter has not been asked for compensation for the fifty-five feet belonging to Woolley taken for Seventy-eighth-street. There is no evidence in the case as to whether the city demanded or received from Woolley the sum the committee reported he should pay.

There can hardly be a doubt that the fact of Woolley’s ownership of a fee in the old roads, was not asserted or denied, or recognized by either party. The negotiations and understandings had no regard to it. It is not named even in the documents. The city assumes to own the south half of the old street on the north, by proposing to convey it, and had paid assessments upon it, while there is no demand that Woolley should convey his fee in the old street to the south. At that time the law on this subject, as regards streets only existing on maps, had not been definitely decided. From Woolley’s financial condition and other circumstances, I have no doubt that he did not know or think of it. This isolates the land from any agreement it may be supposed that the parties negotiated about or even acted on, and it must be looked at as if it had never been a part of lot 143. They made petitions and reports about lot 143, but they certainly meant only so much of it as was between the lines of the old streets, that is, two hundred feet of it. They treated of adjusting the boundaries, but they did not propose to alter one of the boundaries.

The facts in this case do not permit the defendants to claim that what the parties did, under the supposed or presumed understanding or agreement, involved as a fact the relinquishment of the strip in question, and that acquiescence in this condition of things short of twenty years is conclusive. One reason is sufficient, though several might be stated. The giving Woolley the whole block between Seventy-eighth and Seventy-ninth-streets would not, as a matter of fact, have involved necessarily his relinquishing a strip on the south side of Seventy-eighth-street. The most that can be claimed is, that it cannot be supposed that the city would then have allowed Woolley'to remain in occupation of land np to Seventy-ninth-street, or that it would be Woolley’s duty to relinquish the land. In either casé, title to land is-not transferred.

I think the following are just conclusions in the case.

The evidence shows that down to 1833 nothing was done that affected the title to the land in question, after its conveyance by the city to David Wagstaff, in 1801.

There never has been any doubt or dispute'as to the rightful or actual boundaries of lot 143, or of the strip in question. The evidence does not conclusively show that the proposal made by the city was accepted or assented to by Woolley. At least there was such doubt about it that it was an issue for the jury. • Nor does the evidence show that the parties settled upon a boundary line of the premises in question. If the proposal of the common council had been acted upon, as made, that would not have affected the title to the premises in dispute. There has been no acquiescence by Woolley, in the settlement, by agreement or understanding of the parties, of any boundary line of the contested land. Neither the city nor Woolley at or during the negotiation forthe so-called i( adjustment of boundaries,” as matter of fact, believed that Woolley was owner of the fee of the .old streets in dispute, and no question as to it was made. This, however, upon the facts as they are now presented, would not be for a court but a jury to pass upon. On the case as now presented, if for any reason it is inferred that Woolley did not claim the land and the city did, the title of the former could pass only by adverse possession of the latter for twenty years. This last proposition is inevitable, if the law is, that unless the boundary is fairly disputed and an agreement be made as to it, possession and mutual acquiescence short of twenty years will1 not bar- a right of entry.

To meet thé case, as it was substantially presented at the trial, it will be proper to determine whether the facts conclusively showed that, became at a time prior to the defendant’s obtaining a conveyance from the plaintiff, the defendant had had adverse possession for twenty years, the plaintiff’s former title had gone from him.

If evidence sufficiently shows the true title, it is not a material fact that the owner disclaimed title to the land. And here let us say, that Woolley’s meaning in declaring to his tenant that the north side of Seventy-eighth-street was the boundary of his line, presents something that a jury should pass upon. Several months after, the city recognized his title to land below that line, for they proposed that he should make a conveyance of a piece fifty-five feet deep, whose northern boundary was that line ; and when he spoke of the lot below, it is not certain that he meant to have regard to the strip in question. .

The law presumes that, where title is shown, the' true owner is in possession, until adverse possession is proved to begin. Adverse possession does not begin until an actual entry is made, accompanied by a Claim of title hostile to that of the true owner; and to bar a right of entry it must be continuous, for twenty years (Jackson v. Parker, 3 Johns. Ch. 124 ; La Frombois v. Jackson, 8 Cow. 589 ; Jackson v. Sellick, 8 Johns. 202; Jackson v. Sharp, 9 Id. 163; Humbert v. Trinity Church, 24 Wend. 587; Jackson v. Thomas, 16 Johns. 293).

In this case there is no evidence, down to 1841, when Allerton took possession of lot No. 140, that any one but the true owner was in actual possession of the land in question. Mr. Woodward’s petition, or the report on it, does not show that he was lessee of lot 140, nor for how long a time he had actual occupation, if at all. If Allerton did at that time take possession it does not conclusively appear that his claim under the city lease to him was hostile to the true title, so far as this strip is concerned, and he left the land by 1853. What actual possession there was after that, except the owner’s, does not appear in the evidence until, in 1858, a tenant of the city took possession of a part of the land, and occupied it until 1866, when the city sold the fee of the whole of the land. This is enough so show that, on the facts as they stood, title was not barred by adverse possession. Of course, there are other pertinent considerations on this point, which are not now referred to.

I may here say, that nothing was shown on the trial to work an estoppel of Woolley to claim under his title. Even if he acquiesced, with full knowledge, in the city’s taking possession of the land, they came to no damage from that which made it inequitable that he should fake under his title (Jackson v. McConnell, 19 Wend. 177; Corning v. Troy Iron & Nail Factory, 44 N. Y. 577).

We have assumed the correctness of the decision of the learned judge, that Woolley’s title went to the center of the old roads. The counsel for plaintiff insists that that is not an open question, on this argument, which is heard only on the exceptions to decisions adverse to him. We will not pass upon that proposition, but agree with his honor that Bissell v. New York Central R. R. Co., 33 N. Y. 63, is authority for his ruling. The memorandum of the case of Terrett v. New York & Brooklyn Steam Sawmill & Lumber Co., 49 N. Y. 666, seems to support the same rule. Perrin v. New York Central R. R. Co., 36 N. Y. 130, clearly does.

The learned counsel for defendants argues a point that was not presented to the court below, arising upon the phraseology of the description in the deeds in the case. The deed bounds each side of the five acre lot by a street sixty feet in breadth, lying “between” the lot granted and the lot on the north and on the south. The argument is, that such words separate and distinguish the lots from the streets, and the streets from the lots. It is fully supported by the citations of counsel from Codman v. Evans, 1 Allen. 443, and Chapman v. Edwards, 3 Id. 573. These cases say, that as the land is bounded on the creek, or the passage way “between” the land and other land, no part of the creek or passage way is conveyed. The land conveyed is external to the creek or passage way, for the latter would not wholly be between the two pieces of land, if half of it formed a part of the land conveyed. These cases ought not to affect the simple rule that should govern such a matter, and which is held to be the law of this State. Our law in substance is, that if the street, as an entirety, is stated to be the boundary, as distinguished from a side of it, the land goes to the center line of the boundary. The boundary is treated as if it were a line, but the parties take, according to the fact. Necessarily, any street, lane, fence or wall used as a boundary in a deed, must be between the land conveyed and the adjoining land. I cannot see that a statement in words, that the boundary is between the two, should have greater force than should the fact itself, of which these words are only descriptive.

The construction of deeds, on this point, has been influenced by considerations of public policy. This has affected judicial decisions in the different States (American note to Davaston v. Payne, 3 Smith L. Cas. 6 Am. ed. 338). In this State, Judge Oakley said, in Hammond v. McLachlan, that “principles of greatpublic convenience forbade that one should be the owner of a farm, and another of a road or stream running through it. The practical inconvenience of a contrary rule has led to this construction uniformly, unless where it expressly appears that the parties intended the contrary,” and applied it to lots in a city bounded on a street. As the law stands, we should maintain the decision on this point made at the trial.

On the argument, the learned counsel for the defendant objected that the exception to the direction to find a verdict did not bring up on this appeal the subjects discussed, because the plaintiff on the trial did not request the court to submit any questions-of fact to the jury. Stone v. Flower, 47 N. Y. 566, settled that an exception to a direction to find a verdict for defendant brings up on the appeal the question whether, on any construction of the facts, the jury would have been warranted in finding for the plaintiff.

We think that the judge was correct in his ruling,that the other issues in the case, and which we have not referred to, should be submitted to the jury.

As we consider that the evidence in the case, as to the plaintiff’s title to the land, was not conclusive in favor of defendant, a new trial should .be had, the exceptions being sustained, and the verdict set aside, with costs to plaintiff, to abide the event of the action.

The order denying the motion for a new trial, on the ground of surprise and newly discovered evidence, should be affirmed. It is not necessary to go into particulars. The newly obtained facts were simply circumstances of the same kind with many that had been put in evidence. They were not in themselves decisive. Being in their nature cumulative, their discovery should not lead to a new trial. The facts of the same kind that were given in evidence were undisputed ; and if a court and jury would from them draw a conclusion, desired by the plaintiff, the additional-facts would have very little consideration. If such a conclusion would not be drawn, the additional facts would not lead to a different result. Of course, they had some weight, but not enough to require a new trial. The decision of the court did not involve.a surprise of the plaintiff, as passing upon an issue not presented. I think the matter of the plaintiff’s title, and anything that transferred it, were folly within the issues.

The order appealed from should be affirmed, with costs.

Van Yoest and Speib, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES SMITH, Plaintiff and Appellant, v. THOMAS W. SMITH, Defendant and Respondent.
    In an action upon a promissory note, payable to the order of plaintiff, the complaint alleged that one Totten made the said note and delivered it to defendant, who indorsed, and for value received, delivered the same to plaintiff, who, on the faith of such indorsement, accepted said note. The answer denied the facts stated, and that defendant indorsed said note for or on account of Totten, the maker, or as security to plaintiff for its payment, and alleged that he indorsed it for accommodation of plaintiff.

      Held, that there appeared sufficient on the face of the complaint to show that the defendant’s indorsement was alleged to be as surety for Totten.
    On the trial, the plaintiff being a witness, his counsel asked him the question: “ State the circumstances under which you received that note ? ” This was objected to, and the objection sustained, and exception taken.
    The plaintiff afterwards testified that the note in question was given to him for plastering done on Totten’s (the maker’s) houses. The plaintiff’s counsel asked the question: “What interest, if any, did Thomas W. Smith (the defendant) tell you that he had in those buildings ? ” The court refused to allow the witness to answer this, question, and the plaintiff excepted.

      Held, that answers to these questions should have been allowed, as relevant to a cause of action stated in the complaint, and it was error to exclude the same.

      Before Sedgwick, Yah Yoest, and Speik, JJ.

      Decided April 4, 1874.
    Appeal from judgment.
    The complaint alleged that Totten made his promissory note payable to order of plaintiff, for value received, “and delivered the said note to the defendant herein, who indorsed, and for value received delivered the said note to the plaintiff, who, on the faith of such indorsement, accepted said'note.”
    The 'answer denied that Totten delivered said note to defendant, or that defendant indorsed said note for or on account of Totten, or as a security to plaintiff for the payment of said note, and alleged that defendant indorsed it solely at request of plaintiff, and for his • accommodation, and k denied that defendant had received value or any consideration for indorsing the note.
    On the trial, the plaintiff was a witness in. his own behalf. His counsel asked him the question: “State the circumstances under which you received that note?” This was objected to, the objection sustained, and an exception was taken.
    The plaintiff testified that the note was given to him for plastering done on Totten’s houses. The court refused to allow him to answer the question: “What interest, if any, did Thomas W. Smith tell you that he had in those buildings ?” To this the plaintiff excepted. At the close of the case, the court directed a verdict for the defendant.

      David MeAdam, for appellant.

      Thomas W. Smith, attorney, in person, for respondent.

      George W. Stevens, of counsel.
   By the Court.—Sedgwick, J.

—It appeared on the pleadings and by the note in. evidence, that the defendant’s indorsement was made before the delivery of the note to the payee. The presumption was that the defendant was not liable to the payee. His liability would be that of an indorser subsequent to the payee’s indorsement. To establish a cause of action in favor of the plaintiff, he was bound to show that the defendant indorsed, for the accommodation of the maker, to give credit,to the maker with the payee, or to become surety to the payee for the payment of the note (Hall v. Newcomb, 7 Hill, 418; Moore v. Cross,. 19 N. Y. 227; Bacon v. Burnham, 37 Id. 614; Meyer v. Hibsher, 47 Id. 265; Phelps v. Vischer, 50 Id. 69; Clothier v. Adriance, 51 Id. 323). Necessarily, to prove this, he had to resort to the facts extrinsic of the note. The question, “State the circumstances under which you received the note?” asked of the plaintiff, but not allowed to be answered, had a tendency to draw out the facts, from which it might appear to the jury what was the defendant’s real relation to the note and the plaintiff.

Again: it appeared in evidence that the note was given to the plaintiff by Totten, for plastering done on certain houses. The plaintiff was asked in his own behalf, “What interest, if any, did Thomas W. Smith tell you that he had in these buildings ? ” No objection was taken to the form of the question, but the court, on objection, ruled it to be inadmissible. Although Totten was owner of the houses, the defendant might have had an interest in them. If he in fact had, he was interested in the very consideration of the note. To show this by his admission, would prove that he had a motive to become surety for Totten, the maker.

The defendant’s counsel objected on the trial to the first question, on the ground that it could not be admitted under the pleadings. The complaint was charged with being defective, in that it set out the facta only that showed the defendant was a second indorser to the plaintiff, and therefore not liable to him, and did not set out the facts necessary to establish a legal liability.

The plaintiff, according to the record here, moved and was permitted to amend the complaint, by alleging an indorsement of the note by plaintiff, and then repeated the question, which was again overruled. I do not see how such a general amendment can be deemed as affecting the meaning of the original complaint, nor do I see where it was meant to be inserted. If it was intended to aver, an indorsement, without recourse, by plaintiff on the note before the defendant’ s' indorsement, the complaint would not be aided while its other allegations stood, unless one of these allegations was in substance that the defendant intended to become surety for the maker to the payee. If there were such an allegation, it would be immaterial to state the indorsement without recourse, for that is a mere form, and may be done at any time, even on an appeal (Moore v. Crow, supra).

Formerly, according to the opinion of the chancellor in Hall v. Newcomb, supra, such an indorser might be treated as an ordinary indorser, by declaring against him under the money counts, with a copy of the note attached, by virtue of the statute of April 25, 1832, as amended by Laws of 1835, ch. 211 (4 Edm. Stat. 453). Conkling v. Gandall, 1 Keyes, 229, makes it at the least doubtful whether this could be done under section 162 of the Code. But here, there is in the complaint no attempt to charge him, as an ordinary indorser, the special facts, which show the contrary being averred. I, however, think that there appears sufficient on the face of the complaint to show that defendant’s indorsement was alleged to be as surety for Totten. At any rate, the defendant so understood, for Ms answer makes denials, as if averments to that effect were in the complaint. The mere fact that the defendant indorsed for a consideration, or value received, would not of itself give the payee a right of action. The defendant would receive the consideration for incurring the liability of second indorser. The complaint goes further, and states that the defendant, after indorsing, delivered the note for value received to the plaintiff, who, on the faith of such indorsement, accepted it. The averment implies that the delivery and acceptance were one act. The acceptance was not general, but on the faith of the indorsement. This modified acceptance characterizes the delivery, which was cotemporaneous. The averment is, therefore, argumentatively, .that the defendant delivered the note, that the plaintiff might take it on the faith of his indorsement. This construction of the complaint is such, that the plaintiff should have been allowed to put the question, as relevant to a cause of action stated in the complaint. For the same reason, the second question should have been allowed. As the case stands, its merits have not been fully tried.

The judgment should be reversed, with costs, to abide the event.

Yah Yoest and Speib, JJ., concurred.


author: By the Coubt.—Sedgwick, J.

text:
    PETER RONALDS, Plaintiff and Appellant, v. THE MECHANICS’ NATIONAL BANK OF THE CITY OF NEW YORK, Defendant and Respondent.
    If, on a motion for a reference, there is evidence that the trial of the issues requires the examination of along account on either side, the finding of the special term that such examination would be required, which finding is involved in the making of an order, is conclusive (Welsh «. Darragh, 52 W. Y. 593; Kain ®. Delano, 11 Abb. Pr. N. 8. 39).
    If it appears any account has to be examined, the conclusion that it is to be deemed long will not be disturbed.
    The characteristics of accounts in evidence, and which make it necessary to send them to a referee, are, .that sums have to be remembered, figure for figure, and these sums have to be added, or subtractions made, and interest calculated on various sums from and to various dates. But if, in the consideration of statements of' figures as evidence, you can avoid the necessity of their combination, or of the remembrance of their exact amounts, such statements will not necessarily be examined on the trial as accounts, although they contain an assertion of many single circumstances which incidentally exist within the form of an account, and stated in figures: as, for instance, in an action in ejectment," where it is desirable for one party to prove another, who was in possession of the premises, was his tenant, a long account, consisting of many items of rent paid, might be examined, yet it would not be deemed that it would be an examination of the same as an account.

      Held, that in this case the plaintiff’s right to claim interest (which is the cause of action) does not depend upon the examination of either of the accounts mentioned in the answer, or of their details, as accounts between the parties, but rests iipon the question as to whether or not the defendant refused to pay the checks of plaintiff upon the deposits admitted by both parties; and this question must be determined upon facts extrinsic of the accounts, as such. So far as appears from the pleadings, the verification of either of the accounts set forth in the answer, in respect to each or any of the items composing them, by the defendant, would be immaterial, and the order of reference made by the special term should be reversed.
    Before Sedgwick, Van Yobst, and Speib, JJ.

      Decided April 4, 1874.
    Appeal from an order of the special term referring the issues, oñ motion of defendant.

      Man & Parsons, attorneys for appellants.

      John E. Parsons, of counsel.

      Chapman, Scott <6 Crowell, attorneys for respondents.

      William JS. Scott, of counsel.
   By the Coubt.—Sedgwick, J.

The motion below was heard upon the pleadings, an affidavit on the part of defendant “ that the trial of the issues in this action will require the examination of a long account on the part of the defendants, to wit, the accounts kept by the said plaintiff with the defendant and with the Mechanics’ Bank of the city of Yew York for a number of years past, consisting of numerous items of charges, both' debits and credits, for deposits made and checks drawn by the said plaintiff from time to time, in the course of an ordinary bank account kept by the plaintiff with the said defendant,” and an affidavit on the part of plaintiff, that “ it is not the fact that an examination of a levy or any account is necessary in the trial of this issue. The suit is to recover interest on a balance of six thousand seven hundred and fifty-seven dollars and ninety-five cents, on June 9, 1865, received by the defendants . . to the credit of the plaintiff, which the defendants subsequently by their acts and declarations denied that they had, and which they refused to pay on the checks of the plaintiff. The balance is admitted. The account upon which the balance arises is not in contest, and the whole question is of the liability of the bank for the interest.”

The complaint alleged that the plaintiff had on deposit with The Mechanics’ Bank of the city of Yew York six thousand seven hundred and fifty-seven dollars and five cents, to be drawn upon by plaintiff’s checks ; that about December 22, 1863, plaintiff left his pass-book with that bank to be written up; that such bank delivered on June 9, 1865, said money to the defendants to plaintiff’s credit on deposit, and also said pass-book after it had been written up ; that the defendants kept and concealed said book from plaintiff; that plaintiff had no means except from the defendants of ascertaining the state of his account with them or the amount they had received from the Mechanics’ Bank ; that on June 6, 1867, plaintiff called on the defendants and requested to be informed of the balance remaining to his credit, and asked for another pass-book, and that the defendants should enter therein such balance ; that the defendants delivered a pass-book to plaintiff, in which was entered to his credit eighty-one cents; but, in fact, the said sum of six thousand seven hundred and fifty-seven dollars and five cents was then to his credit; that the plaintiff had from time to time drawn checks upon his account, between June 9, 1965, and the commencement of the action, which the defendants refused to pay, for an alleged want of funds, although such checks were of a less amount than the last named sum, which was to his credit, at the time such checks were presented ; that the plaintiff, by reason of such refusal of defendants, and his reliance upon their statement in the pass-book, that there was only eighty-one cents to his credit, permitted the said sum of six thousand seven hundred and fifty-seven dollars- and five cents, to remain with the defendants, and the defendants procured the same to remain with them, until about February 9, 1872, when the plaintiff discovered his mistake; that on the last named day the plaintiff drew the sum of six thousand seven hundred and fifty-seven dollars and five cents, and demanded interest on that sum from June 9, 1865, to February 9, 1872, amounting to three thousand one hundred and seventy-nine dollars and twenty-five cents, which the defendants refused to pay, and demanded judgment for this amount.

The answer alleged that the plaintiff kept two accounts in the Mechanics’ Bank, one being called the old account and the other, the new account, and separate pass-books for them ; that December 22, 1863, the pass-book of the old account was written up and the plaintiff was credited therein with the sum of six thousand seven hundred and fifty-seven dollars and five cents, and that on November 16, 1864, the pass-book of the new account was written up and the plaintiff credited therein with eighty-one cents ; that both of said books were, within a short time after said dates, returned to the plaintiff; that those balances were the same when the defendant took the accounts in the place of the Mechanics’ Bank, and the defendants, after June 9, 1867, continued said two accounts, keeping them separately ; that at different times the new account was balanced and the proper accounts entered in the pass-book for the new account, and on June 19, 1872, plaintiff closed the account by drawing out three thousand two hundred and four dollars and sixty-two cents, the balance at that time of the new account; that the balance of six thousand seven hundred and fifty-seven dollars and five cents- to the credit of the old account, remained not drawn upon until February 29, 1872, when the plaintiff drew a check for six thousand seven hundred and thirty-seven dollars and five cents, which was paid, leaving twenty dollars to his credit; that the defendants were always ready to and did inform truly, the plaintiff of the state of his accounts, and did meet and pay on presentment all checks ' or orders made by plaintiff upon his accounts with them, and in all respects fulfilled their obligation to ' him, and defendants, denying that they are liable for the interest on the balance of six thousand seven hundred and fifty-seven dollars and five cents, demand judgment that complaint be dismissed. .

If it appear that on the motion there was any evidence that the trial of the issues required the examination of a long account on either side, the finding of the special term, that such would be required, and which finding is involved in the making the order, is conclusive (Welsh v. Darragh, 52 N. Y. 592; Kain v. Delano, 11 Abb. Pr. N. Y. 29). If any account has to be examined, the conclusion that it is to be deemed long will not be disturbed.

Wé can, I think, come to a satisfactory determination, without passing upon whether the alleged account must relate directly to the issues,—i. e., that upon its being established as true, it,> of itself, determines the issues or a part of them, or throws the onus of proof upon the opposite party, or whether, as contrasted with this, it is enough that as' an account it is collateral to the issues ; if it is to be examined as an account on the trial, or whether it must be the record of mutual dealings, or whether, on the other hand, it may only comprise a number of items,- simply charges or statements of indebtedness which it is unlikely, if not impossible that a jury can all carry in their memories until the case is ended, or whether it may be the aggregate of items, each one of which is a statement of an amount. due, and of a single cause of action, and which a jury might satisfactorily hear and determine. In all these instances, the characteristic of them, as evidence, which makes it expedient to send them to a referee is, that sums have to be remembered figure for figure, and these sums have to be added, perhaps subtractions have to be made and calculations of interest on various sums from various dates. In considering statements of figures as evidence, if you take away the necessity of combining them or of remembering the exact amounts, such statements will not be examined on the trial as accounts. The statements will contain an assertion of many single circumstances, which incidentally exist within the form of an account and stated' in figures. On an issue in ejectment, where one side desired to prove that the other, in possession, was his tenant, a long account might be examined consisting of many items of rent paid, in the handwriting of the tenant; yet it would not be deemed that it was examined as an account.

In one view of this case, so far as the pleadings go, the plaintiff’s right to have interest would depend upon whether the defendants refused to pay checks when there were funds, and if these were frequently refused, it might have been maintained that a long account would be examined, But it is unnecessary to pass on this, as it has not been presented by counsel, because the defendants’ position is that there were no such, refusals.

As I understand the case, the plaintiff, in order to present the question of law as to the defendants’ liability for interest, proposes to prove that the plaintiff had a deposit of six thousand seven hundred and fifty-seven dollars and five cents. The answer admits he had. The plaintiff further proposes to prove that he drew on that and demanded its payment, which defendants refused. The answer denies that he ever did draw on it down to February 29, 1872, and impliedly asserts that all checks drawn between June 9, 1867, and February 29, 1872, were drawn upon another account, called tlie new account. Bow whether this was the case or not, the fact on which account checks were drawn cannot depend upon the particulars and characters of the new account, whatever it was. He might or might not. have drawn upon it, according to the fact extrinsic of the account.

The complaint puts the right to interest on another set of facts, which were in substance, that the defendant, by actionable neglect or misconduct, concealed from plaintiff or kept from his knowledge that he had the six thousand seven hundred and fifty-seven dollars and five cents to his credit. This is denied. I do not think that anything contained in either of the accounts as such, in the pass-book or on the bank’s books, can prove or disprove, that the bank kept information from the plaintiff, tinless the defendant proved that some book which the plaintiff saw, had in it the balance in contest. The defendants do not put in issue, anything which will change the admitted balance on the old account and on which interest is demanded. Virtually for the purpose of the action that consists of but one item.

. On either branch of the case, when it comes to a contract, on the issues, as they present themselves to me, it may be that the defendants will have to produce both accounts, in the books of the bank or in the passbooks, but on the pleadings, it would be immaterial to the defendants to verify each or any of the items which compose them.

The order appealed from should be reversed, with costs.

Van Vorst and Speir, JJ., concurred.


text:
    CORTLAND DE P. FIELD, Plantiff and Repondent, v. RUFUS W. LEAVITT, and JOHN B. SURSON, Defendants and Appellants, Impleaded, &c., with Frank W. Allen and Donald McDonald, Defendants.
    In a case where personal property has been pledged to secure the payment of a note, and it appears that the pledgor and the parties to the note united in demanding a sale of the greater portion of the property pledged upon an offer procured by them, and the pledgee and owner of the note refused to make the sale, and it also appeared that if such sale had been made, and the money paid thereon, the proceeds of the sale would have paid the note except two hundred dollars, and the remainder of the property pledged would have sold for a greater sum than the balance of the note, whereas, afterwards, all the property sold for a much less sum than the note, and left a deficiency to be paid by the parties.

      Held, by the court, that even assuming that the proposed purchaser was solvent and ready to make the purchase, there being no proof in the case that the refusal to sell by the pledgees was not the exercise of an honest judgment on the part of the pledgees; having regard to their own rights and interests as well as those of the parties tó the note and the owners of the property, the most that is shown and could be claimed from these facts, is the conclusion that the pledgees made a mistake, but no liability could ensue therefrom under the circumstances.
    The referee who tried the case was not asked to find that the refusal was in bad faith or tortious, nor does the answer allege the same, but if the referee had found every fact as proved by the defendants’ witnesses, the defendants would have had no finding that would affect this judgment for the balance of this note.
    There was conflicting evidence as to the fact of notice of the final sale of the pledge being given to the defendants. The referee was not asked to find that the defendants did not receive notice of the sale.
    Held, that if the question is material the facts should be construed on the appeal so as to support the judgment.
    Before Sedgwick, Van Vokst, and Speib, JJ.

      Decided April 4, 1874.

      Appeal from judgment on the report of referee.
    The action was against the defendants as indorsers • of a promissory nóte, made by Allen and McDonald. The makers requested the firm of C. De P. Field & Co. to indorse a note, payable to their own order. C. De P. Field agreed so to do for a consideration, provided the defendants would become prior indorsers. The note was made, then indorsed by the defendants for a consideration paid by C. De P. Field & Co., and also afterwards indorsed by C. De P. Field & Co. To secure the 'last named firm, the makers also gave them, as collateral security, certain teas and licorice, by a written pledge, which provided that in case the note was not paid, the pledge might be sold without notice, either at private or public sale. The defendants procured the discount of the note, at the Bank of America, where C. De P. Field & Co. kept an account. They procured the discount for the benefit of the makers, and paid to them the proceeds. Befere the note fell due, at the request of the defendants, C. De P. Field & Co.” took up the note at the bank, the defendants waiving presentation and notice of non-payment. In February, a few days after the note fell due, the defendants (the makers also taking part in the offer) offered C. De P. Field & Co. to procure the purchase of a part of the pledge by a firm of Gf. W. King & Co., for three thousand eight hundred dollars. It seems that G-. W. King & Co. were ready to make that purchase. Thai would have left unpaid on the note about two hundred dollar's. C. De P. Field & Co. did not make this sale, but at various times from the following March to December sold the pledge in different parcels, for an amount which left unpaid on the note about two thousand dollars. There is conflicting evidence as to whether the defendants had notice of these sales.

      By assignment the plaintiff is the sole party in interest.

      John A. Foster, for appellants.
    Bell, Bartlett & Wilson, for respondent.
   By the Court.—Sedgwick, J.

The defendants themselves proved that after the note «was made and indorsed, money was had on its discount by the bank and paid to the makers. The circumstances attending a former transaction between the same parties, which left an amount due, to which the money obtained on this note was applied, were immaterial. This note was to be judged by its own incidents.

The defendants were not at liberty to show facts for the purpose of establishing usury either to invalidate the note or to obtain a deduction in the amount of the alleged usury, for the reason that the answer did not charge usury, or claim a deduction or plead payment.

The exceptions that relate to the matters thus far alluded to, cannot be sustained.

For a like reason, it was immaterial to show that in the former transaction, the defendant had been a broker between, the parties. One of the defendants testifies to what was the fact of this case. He swears that C. De P. Field & Co. wished the defendants to indorse the note as formerly, and they would pay them “a brokerage of forty dollars,” i. e., for indorsing the note.

The answer does not make any issue, which allows the defendants to claim that it was material to inquire whether the bank discounted the note out of funds of C. De P. Field & Co., or by an understanding with them, nor, therefore, was any statement by a member of C. De P. Field & Co., that they must themselves make a loan in consideration of receiving one hundred and fifty dollars, material to any issue. But in fact, the transaction was fully investigated on the trial.

The principal error urged, is that the referee did not give due effect to the evidence in the case, from defendants’ witnesses, partly corroborated by plaintiff ’ s witnesses, as to 0. De P. Field & Co. not selling a part of the pledge as advantageously as they might. The defendants maintain that it appeared by a preponderance of testimony, that the defendants and the maker of the note united in demanding the sale, and that the plaintiff ’ s firm refused .to make it. If the sale had been made, and the money paid, two hundred dollars would have been left unpaid on the note, and the rest of the pledge could have been and afterwards was sold for a greater sum.

Assuming that the proposed purchaser was solvent, and ready to make the purchase, there is no proof in the case, or offer to prove, that the refusal was not the exercise of an.honest judgment on the part of C. De P. Field & Co., having regard to their own rights and interests, as well as those of the defendants and the owner of the property. On this subject the only proof is, that C. De P. Field & Co. refused to make the sale, and that afterwards the property sold for much less. At the most, these facts of themselves, would only show that C. De P. Field & Co. made a mistake. The referee was not asked in any form to draw an inference from them, that the refusal was in bad faith or tortious. 1'1 or does the answer allege, as much, but only that the goods were sold at a great sacrifice, and could have been sold for the full amount of the note. ' If the referee had found every fact as stated by the defendants’ witnesses, giving no effect to the contradictions by the plaintiff’s ■ witnesses, the defendants would not have any finding which of itself would affect this judgment. On this point, we have passed by without considering whether C. De P. & Co. were accountable to the defendants for the disposition of the pledge.

The referee was not asked to find that the defendants did not receive notice of the sale of the pledge. There was conflicting evidence as to this, inasmuch as evidence was given tending to show that the defendants assented to the sale. If the question was material, we would have to construe the facts so as to support the judgment (Slyke «. Hyatt, 46 JV. Y. 259).

The judgment should be affirmed, with costs.

Yak Yorst and Speir, JJ., concurred.


text:
    JOHN KECK, et al., Plaintiffs, v. JOHN WERDER, Defendant.
    Rule 40 of supreme court rules, provides that after a trial of specific questions of fact, or any question of fact by a jury as a substitute for a feigned issue, that either party desiring to apply for a new trial, must move at special term upon a case or exceptions, or a case containing exceptions (except when the judge directs such motion to he made upon minutes at the same term or court at which the issues were tried).

    In the case at bar, the defendant, without any special direction by the judge before whom the trial was held, made a motion for a new trial upon the minutes, at the same term, when the issues were tried. The motion was heard and denied by the judge, without, objection by the counsel for the plaintiffs.
    The general term suggests that such proceedings were tantamount to a formal direction of the judge, and satisfy the requirement of the rule in that regard, but does not hold the same- formally. In this motion to dismiss an appeal from the order of the judge denying the motion for the new trial on the minutes, it appears; that an order has been made at special term, declaring the appeal to be abandoned. Although no notice of settlement of this order has been given to the appellant, still it is in full force. Therefore, the motion to dismiss the appeal must be granted.
    Before Sedgwick, Yak Yorst and Speib, JJ.

      Decided April 4, 1874.
    Motion to dismiss an appeal.

      Cfhauncey Shaffer, for the motion.

      James M. Smith, in opposition.
   By the Court.—Sedgwick, J.

is an action for a dissolution of a copartnership and an accounting. There were issues framed under rule 40, which were tried by a jury. The trial resulted in a verdict in favor of the plaintiff. Without a direction by the judge, before whom the trial was, a motion was made upon the minutes for a new trial, before the judge, at the same term when the issues were tried. One of the grounds on which this motion is made, is that under rule 4Ó, a motion for new trial cannot be made before the judge on the trial, unless he specifically directs that it shall be made. I hesitate to decide, that when a judge allows a motion for a new trial in such case to be made before him, on his minutes, without objection taken at> the time by the counsel, and the judge does not refuse to hear it, it is not tantamount to a direction of the judge that it shall be heard, and does not satisfy the requirement of the rule in that regard.

There is, however, another ground for the motion. The papers have not been printed and served upon the defendant. The appeal has been pending since August, 1873. This omission is accounted for in the appellant’s affidavit,, by the fact that his counsel has been ill for several months past. This is satisfactory so far as it goes, bat it appears that the appellant’s right to make a case has gone. There was an order made declaring the appeal to be abandoned, no doubt on the ground that the appellant had neglected to make a case. Although no notice of settlement of this order has been given to the appellant, still it is now in full force. .Therefore as the appeal has been declared to be abandoned, and the appellant’s light to make a case has passed, the present motion to dismiss the appeal must-be granted, with costs.

Van Vorst and Speir, JJ., concurred.


author: By the Court.—Van Vorst, J.

text:
    HANOVER FIRE INSURANCE COMPANY, Plaintiff and Respondent, v. THEODORE E. TOMLINSON, Defendant and Appellant.
    An order directing the answer to be made more definite and certain does not involve the merits, nor does it affect a substantial right in the action, and cannot be reviewed on appeal.
    An order striking out a distinct defense as irrelevant does not affect a substantial right, and is appealable.
    In the case at bar, the order appealed from, contained a direction that the answer should be made more definite and certain, and also ordered one of the defenses stricken out as irrelevant. ■
    The general term considered only the latter portion of the order on the appeal, and affirmed the same.
    Before Sedgwick, Van Vorst and Speir, JJ.

      Decided April 4, 1874.

      Tomlinson, Winsor & Marsh, for appellant.

      Tracy, Olmstead & Tracy, for respondent.
   By the Court.—Van Vorst, J.

This is an appeal from an order made at special term, requiring one of the defenses in the answer to be made more definite and certain by amendment, by stating when and where the agreement alleged in said defense was made, and who were the parties to same. By the same order one of the defenses in the action was stricken out as irrelevant.

So much of the order as directs the answer to be made more definite and certain does not involve the merits, nor does it affect a substantial right, and cannot be reviewed on appeal (Geis v. Loew, 15 Abb. Pr. N. S. 94).

But the striking out of a distinct defense as irrelevant, does affect a substantial right, and an appeal may be taken from the order by which it is directed (Trustees of Penn Yann v. Forbe, 8 How. 285; Fasnacht v. Stehn, 53 Barb. 650 ; Dixon Crucible Co. v. New York Steel Works, 57 Id. 447). In this last case the answer was stricken out as a frivolous, but the same considerations are involved. For if a separate answer and defense be stricken out, the defendant loses a right to such portion of his pleading, and can give no evidence under it on the trial.

But on this appeal we can come to no other conclu- , sion than that reached by the judge below, that the sixth defense is irrelevant.

By it the defendant seeks to show that an order made by the supreme court, giving the plaintiff leave to bring this action, was made upon insufficient cause.

Such inquiry could not be allowed on the trial of this action. Yor can the sufficiency of the affidavits and papers which were before the judge of the supreme court, who made the order granting such leave, be reviewed here. .Ifc is enough that the order was made, and its validity cannot be questioned collaterally as long as it stands unreversed. If the order was granted upon insufficient affidavits, the defendant should have appealed from it, or otherwise tested its validity in the court where the order was made.

The order appealed from is affirmed, with costs.

Sedgwick and Speijí, JJ., concurred.