text:
    Hawley D. Clapp, Respondent, v. William F. McCabe, Appellant, Impleaded with Another.

      Jurisdiction of the Supreme Gourt — exercised only within the scope of the pleadings —judgment, upon whom and to what extent conclusive — constitutional preservation of life, liberty and property — due process of law — judgment, when cor am non judice.

    The Supreme Court, under the Constitution of the State of New York, has general jurisdiction in law and equity, but the exercise of its power is subject to-the limitations and regulations of the Code of Civil Procedure.
    When a person commences an action, the power of the court, which he invokes and is entitled to have exercised in his behalf, is that only which applies to the cause of action which he states in the .complaint, and it is by this pleading that the scope of the power of the court in that action is to be determined.
    Before jurisdiction can be established, it must appear, not only that the law has given the tribunal capacity to entertaiu the complaint against the person or thing sought to be charged or affected, but that such complaint has been preferred and that such person or thing has been properly brought before the tribunal to answer the charges therein contained.
    The power of the court to render a judgment, which in a general way may be termed its jurisdiction, is limited by section 1207 of the Code of Civil Procedure to the relief demanded in the complaint, or when there is an answer to such as is embraced within the issue made by the pleadings.

      A judgment is conclusive upon, the parties to an action, not only as to the matters actually litigated, but as to matters which might have been litigated within the purview of the action.
    The rule that a party is not entitled to judgment upon a matter not embraced in his complaint is jurisdictional. It is not sufficient that a judgment is within the general power of the court, or that it adjudicates upon a matter over which the court has general jurisdiction; it must appear that the proceeding in which it was rendered was one that brought the power of the court into action.
    The provision of the Constitution of the State of New York declaring that no person shall be deprived of life, liberty or property, without due process of law, cannot be complied with unless a party proceeded against has a hearing or an opportunity to be heard, and a party cannot be said to have had an opportunity to be heard upon a claim not set out in the complaint, and of which he had no notice.
    A person served with the complaint in an action has a right to rely upon the allegations thereof, with perfect confidence that no valid judgment can be rendered against him upon any claim or cause of action which has not been pleaded, and if any such is rendered, it is coram nonjudice and void.
    Appeal by tlie defendant, William F. McCabe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office •of the clerk of the county of Westchester on the 10th day of November, 1891, upon the report of a referee.

      Isaac H. Mills, for the appellant.

      A. Britton Havens, for the respondent.
   Brown, P. J.:

The facts in this case are not disputed. The learned referee, who heard and decided it, has stated them so fully and accurately in his •opinion that they need not be here repeated.

We agree with and adopt his conclusions, and need add but very little to his discussion of the law of the case.

We are of the opinion that the proposition of the appellant* that the judgment in the foreclosure action is conclusive upon the respondent, and cannot be attacked collaterally, cannot be sustained.

The Supreme Court, under the Constitution of the State, has general jurisdiction in law and equity, but the exercise of its power is subject to the limitations and regulations of the Code of Civil Procedure.

When a person commences an action, the power of the court which he invokes and is entitled to have exercised in his behalf, is tbat only which, applies to the cause of action that he states in his complaint, and it is by this pleading that the scope of the power of the court in that action is to be determined.

Before jurisdiction can be affirmed to exist, it must appear not only that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected, but that such a complaint has been preferred, and that such person or thing has been properly brought before the tribunal to answer the charges therein contained. (Sheldon v. Newton, 3 Ohio St. 494.)

Under our practice tlie power of tlie court to render a judgment, whicli, in a general way, may be termed its jurisdiction, is expressly limited by section 1207 of the Code of Civil Procedure to that demanded in the complaint, or when there is an answer to such as is embraced within the issue made by the pleadings.

This rule, which thus limits the power of the court to render such a judgment only as is in accordance with the prayer of the complaint, is expressly or impliedly recognized in all the reported cases upon the subject of jurisdiction.

Tims, iu Lewis v. Smith (9 N. Y. 502) a judgment in an action to foreclose §, mortgage was lield not to be a bar to an action for dower,, for the reason that, although plaintiff was a party defendant- to the-foreclosure suit, the question as to her dower was not embraced’ within the allegations of the complaint. While in Jordan v. Van Epps (85 N. Y. 427) a judgment in an action for partition was held' to be a bar to tlie maintenance of a similar action, for tlie reason, that the plaintiff’s right of dower had been set out in the complaint, in the partition suit, and as the court had capacity to determine-it in that action, the plaintiff could have litigated her rights there had she chosen so to do, and the case, therefore, fell within, the familiar rule that a judgment is conclusive upon the parties, not only as to the matters actually litigated, hut as to matters which might have been litigated within tlie purview of tbe original action.

In Lewis v. Smith, after stating tbe rule that a plaintiff must set out in his complaint the facts upon which he claims priority for a mortgage over another incumbrance or special estate in land, the court says : “ If lie omit to do this it will he under pain of being obliged to show, when the decree is relied upon collaterally, that the title alleged to be foreclosed was in. fact subordinate to the mortgage.”

Another familiar illustration of the same rule is the effect of a judgment rendered in an action to foreclose a second mortgage upon the holder of a prior incumbrance. Thus, in Jacobie v. Mickle (144 N. Y. 237) a judgment was held to bar an action to foreclose a first mortgage for the reason that the complaint in the first action .set out the prior mortgage, and in the prayer for judgment demanded that the amount due thereon be ascertained and paid out of the proceeds of the sale, and the case is distinguished in the opinion of the court from those in which prior incumbrances were held not cut off by a sale under a judgment rendered in an action to foreclose a junior mortgage, for the reason that the right of the first incumbrancer was not set out in the complaint.

An unlimited number of authorities might be cited, all holding that the rule that a party is not entitled to a judgment upon matter not embraced in his complaint, is jurisdictional. It is not sufficient that a judgment is within the general power of the court or that it adjudicates upon a matter of which the court has general jurisdiction. It must appear that the proceeding in which it was rendered was one tliat brought the power of the court into action. If a woman should sue her husband upon a promissory note, and upon default of answer the court should grant her a divorce, no one would claim that such a judgment liad any force or validity, and yet it could he argued that the court had jurisdiction of divorces and the judgment was within its general ¡Dowers. But the answer to such an argument would be that the power of the court to grant a divorce had not been called into action and no case had been presented in which it could lawfully be exercised, and the judgment of divorce would be absolutely void. The result would be the same if, in an action upon a note, a judgment was rendered foreclosing a mortgage.

The rule could not be otherwise without violating the constitutional provision declaring that no person shall be deprived of life, liberty or property without due process of law. That provision cannot be complied with, unless the party proceeded against has a bearing or an opportunity to be beard. In Stuart v. Palmer (74 N. Y. 183) tbe Court of Appeals said they could not conceive of due process of law without that.

A party could not have an opportunity for a hearing upon a claim not set out in the complaint and of which he had no notice. lie lias a right to rely upon the allegations of the complaint served upon him with perfect confidence that no valid judgment can be rendered against him upon any claim or cause of action which has not been pleaded, and, if any such is rendered, it is coram non judies and void.

In the action before us it is the appellant’s claim that the court had power to determine what land was subject to the lien of the mortgage, and its judgment in that regard is conclusive. But under the operation of the rule stated the court had no power to determine that any land was covered by the mortgage except in accordance with the allegations of the complaint.

The plaintiff in the foreclosure action did not allege that the laud claimed in this action was subject to the mortgage. She admitted that a part of the mortgaged premises had been released, and for a, description of it referred to the release by date and place of record, and the complaint must be read as if the release was incorporated in and found as part of it.

This plaintiff, however, had a right to rely upon that allegation, and there was no question before the court for its determination as to what the mortgaged property consisted of. The facts were- found by the court in accordance with the allegations of the complaint, and neither under the pleadings nor its own decision was there any power to direct the sale of the plaintiff’s land. And the judgment, so far as it purported to direct a sale of the land in suit, was void.

The judgment appealed from must be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment affirmed, with costs.

       The following is the opinion referred to:
      ■Charles P. McClelland, Referee:
      The action is in ejectment to recover the possession of an undivided one-seventh •part of certain lands situate in the town of Mamaroneck, in the county of Westchester.
      There is no dispute as to the facts — the only evidence offered upon the hearing being documentary.
      The plaintiff claims title as devisee under the will of his father, Hawley D. 'Clapp, who died January 5, 1880, and whose will was admitted to probate January 20, 1880.

        It is not questioned that by this will the plaintiff became vested with an undivided one-seventh interest, to recover the possession of which this action is brought.
      It is claimed, in behalf of the defendant, that the plaintiff became divested of such interest by the foreclosure of, and sale under, a mortgage executed by his father, Hawley D. Clapp, to one Rachel S. Rogers, December 28, 1861, and recorded in the office of the register of the county of Westchester on the 6th day of January, 1862.
      At the time of the execution of the mortgage, Hawley D. Clapp, Sr., was the owner and in possession of the premises in question, together with other lands, the whole forming a tract lying between Mamaroneck river and Mamaroneck avenue, consisting of a little more than twelve acres, all of which tract was included in the mortgage to Rachel S. Rogers.
      The mortgage referred to was, on the day of its execution, assigned by said Rachel S. Rogers to John J. Merritt; and on the 12th day of August, 1863, by the said John J. Merritt assigned to Elias H. Yan Brunt,
      On the 18th day of August, 1863, Elias II. Yan Brunt executed and delivered to Hawley D. Clapp, who was then still the owner of the mortgaged premises, a release of a portion of the premises covered by the mortgage.
      It is the peculiar and unfortunate description of the released premises that has occasioned all the difficulty. Instead of describing by metes and bounds the portion released, the release is of all the mortgaged lands except the portion specifically described in the release by metes and bounds, upon which portion so specifically described the mortgage was to remain a lien.
      Subsequently, and on the 24th day of August, 1863, Hawley D. Clapp, together with his wife, Huldah H. Clapp, conveyed to the American Spiral Spring Butt Hinge Company the portion of said premises not released from the lien of the mortgage, which said premises not released were, on the 22d day of November, 1866, conveyed by said corporation to Elias H. Yan Brunt, and the same premises were by the said Elias H. Yan Brunt, on the 23d day of June, 1881, conveyed to Huldah H. Clapp.
      The mortgage above mentioned was by the said Elias II. Yan Brunt, on tho 30th day of September, 1863, assigned to Huldah H. Clapp, so that at the time of the conveyance to her of the real estate, on the 23d day of June, 1881, Huldah H. Clapp was the owner both of the mortgage and of the real estate upon which it was a lien.
      The question whether upon the conveyance of the real estate to Huldah H. Clapp the lien of the mortgage was not extinguished by merger, is not raised by counsel for the plaintiff, and, therefore, I do not consider the same, but base my decision upon the grounds hereinafter mentioned.
      On the 6th day of December, 1881, Huldah H. Clapp commenced an action for the foreclosure of the mortgage above'mentioned, and such proceedings were had in said foreclosure action that on the 8th day of November, 1882, a decree of foreclosure and sale was entered whereby it was referred to Nelson H. Baker as referee to make the sale. The premises were sold to Huldah H. Clapp, the plaintiff in the foreclosure action, and the defendants claim title under Huldah H. Clapp through various mesne conveyances.
      The question at issue is, whether under the decree in the foreclosure action and the subsequent sale by the referee and the referee’s deed, Huldah H. Clapp obtained title to the undivided seventh interest, to recover possession of which this' action is brought.
      It is unquestioned that at the time of the commencement of the foreclosure action such one-seventh interest was not subject to the lien of the mortgage, as the same had theretofore been released from the mortgage by Elias H. Yan Brunt as above mentioned, and the title to such seventh interest had passed to the plaintiff herein under the will of his father above mentioned.
      The plaintiff herein was made a defendant in the foreclosure action. The summons and complaint being served upon him personally, and as he was then a minor of the age of nineteen years, upon his application a guardian ad litem was appointed, who appeared for him in the foreclosure action and interposed the usual answer in such cases.
      In order to ascertain the effect and’ scope of the foreclosure action it becomes necessary to examine with care the proceedings in that action.
      In the complaint in the foreclosure action, the whole parcel as originally mortgaged is described .at length. The complaint then contains a clause as follows:
      “ That the said Elias H. Yan Brunt afterwards, and while the owner and holder of the aforesaid bond and mortgage, released a portion of the premises therein described from the lien thereof, as will appear by an instrument in writing executed by the said Elias H. Van Brunt to Hawley D. Clapp, dated August 18th, 1868, and recorded in the office of the Register aforesaid, in Liber 508 of Conveyances, page 229, August 20th, 1863. For a more particular description of the premises thus released reference is had to the said release.”
      The prayer for relief was that the defendants be barred and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises, and that the said premises may be decreed to be sold.
      Having regard to the language of the whole complaint, it is clear that it covered only the premises not released, or, in other words, that the premises released were excepted from the mortgaged premises as described, and that only the premises still remaining subject to the lien of the mortgage were to be the subject of the foreclosure action.
      After the trial of issues presented by the answer of certain defendants other than the plaintiff herein, the court made and filed findings of fact and conclusions of law in favor of the plaintiff in the foreclosure action, one of which findings of fact was as follows: “That the said Elias H. Van Brunt, by the agreement set
      forth in the complaint dated August 20th, 1863, and recorded at the time and-place therein specified, released a portion of the mortgaged premises from the lien of the said mortgage.”
      And one of the conclusions of law was as follows: “ The plaintiff is entitled to judgment against all of the defendants in the usual form for the foreclosure of the said mortgage, and for a sale of all the mortgaged premises except that part thereof which was released by the said Elias H. Van Brunt as hereinbefore stated.”
      The notice of the pendency of the action described the premises by the same description as found in the mortgage, adding as follows: “ Excepting and reserving out of said described premises the portion thereof described in a certain release bearing date August 18, 1863, executed by Elias H. Van Brunt to Hawley D. Clapp, and recorded in the office of the Register of Westchester County aforesaid, in Liber 508 of Conveyances, page 229, August 20th, 1863.”
      The decree in the foreclosure action was filed on the 4th day of November, 1882, and duly entered on the 8th day of November, 1882. It is in the usual form and directs the sale of the “mortgaged premises described in the complaint in this action as hereinafter set forth,” and concludes with what purports to be “a description of the mortgaged premises hereinbefore mentioned.”

        Down to this point in the foreclosure proceedings and in the decree everything; appears to he regular and such as should properly be found in an action to foreclose the mortgage as against the premises upon which it remained a lien after the execution of the release, with the exception that the owners of the portion released are made parties defendant in the action.
      In the attempt to describe the mortgaged premises to be affected by the foreclosure, the decree first contains a full description of the whole parcel as found in the mortgage, including in one description both the portion released and the portion not released. After such description the decree continues: “Excepting and. reserving- out of tlie above-described premises,” and then follows a description by courses and distances, not of the portion released, but of the portion not released, as the same was described in the release, following which detailed description is the following recital or reference: “As described in a certain release bearing date the 18th day of August, 1863, executed by Elias H. Van Brunt to Hawley D. Clapp, and recorded in the office of the register of Westchester county in Liber 508 of Deeds, page 229, on the 20th day of August, 1863.”
      The referee’s deed contained the same description as found in the decree.
      Upon the foregoing statement of facts the question is, whether the plaintiff was divested of his title to the undivided one-seventh interest, to recover possession of which this action is brought, in the decision of which I shall consider only two questions, namely:
      I. Whether the premises claimed by the plaintiff herein were included in the premises described in the decree in the foreclosure action; and,
      II. If so included, whether that decree is binding upon this plaintiff.
      In the consideration of the first question it must be borne in mind that at the time of the commencement of the foreclosure action the mortgage was not a lien upon the premises affected by this action.
      It is strenuously insisted by the learned counsel for defendants that the purpose of that action must have been to foreclose the mortgage as against the premises claimed by the plaintiff herein, for the reason that Huldah H. Clapp was already the owner of the premises not released from the mortgage, and for the further reason that the owners of the portion released were made parties defendant.
      The facts stated tend strongly to show that such was the understanding or purpose of Mrs. Clapp, but I am unable to see how such understanding or purpose is material. They could not alter the tact that the premises had beca released from the lieu of the mortgage, nor could such understanding or purpose restore such a lien.
      Such purpose, if it existed, was based either upon fraud or a mistake. There is no evidence whatever of fraud, and no intention or purpose which was based upon a manifest error can aid in the construction of the description found in a decree or in a conveyance. It must be presumed that the purpose of the action was to foreclose the mortgage as against the premises upon which it was a lien,’ and not as against the premises upon which it was no lien.
      It further appears that the premises which remained subject to the lien of the mortgage were properly described in the complaint. The prayer of the complaint was for a sale of the “mortgaged premises.” The notice of the pendency of the action properly described the premises upon which the mortgage was a ljen, and the decision of the court was that “the plaintiff is entitled to judgment * * * for a sale of all the mortgaged premises, except that part thereof which was released by the said Elias H. Van Brunt as hereinbefore stated,” and the decree was for the sale of the “mortgaged premises described in the complaint.”
      Down to this point in the foreclosure action, and in the decree as already stated, everything was regular, and as should be found in an action to foreclose the mortgage as against the portion of the premises not released.
      The trouble arose in the attempt to give in the decree a detailed description of the mortgaged premises; in that attempt the whole parcel is described, and then there is excepted, by a description giving metes and bounds, not the portion released, but the portion not released, followed by tbe recital “as described in a certain release,” giving date, time and place of record.
      In my opinion the correct construction of the description found in the decree, when the same is read in connection with the other papers in the action, and in the light of the surrounding circumstances, justifies and necessitates the rejection of that portion of the description giving the metes and hounds as erroneous and inconsistent with the other parts of the description, and contrary to the only purpose of the action of which I can take notice.
      The record evidence showst unmistakably that the insertion of the description of the premises not released, as an exception and reservation from the premises described in the mortgage, was an error, and a reference to the unfortunate and misleading description contained in the release shows how such error occurred.

        The decree, after describing- by metes and bounds the premises not released as being- the premises released, continues, “as described in a certain release bearing date the 18th day of August, 1868,” etc.; a reference to such release shows at once that the wrong parcel had been described and attempted to be excepted and .reserved from the operation of the decree.
      It is, however, strongly urged by counsel for defendants that the words “as .described in a certain release'” have reference to the premises described by metes and bounds in the release, and not to the premises actually released.
      I am unable so to understand the reference. The manifest purpose in the .decree of the reference to the release is to ascertain and locate the portion of the premises released from the mortgage. It is immaterial how such released portion is described, if it can be properly identified and located.
      The reference to the release is found in that portion of the decree relating- to the exception and reservation from the operation of the decree; there could be no purpose in such connection to refer to a description of the premises not released, and which were not to be excepted and reserved from the operation of the decree.
      . After the description by metes and bounds of the portion cf the premises not released is stricken from the decree, there still remains sufficient to clearly describe and locate the premises covered by the mortgage and affected by the foreclosure. Such description is then without ambiguity or contradiction, and is consistent with the judgment pronounced by the decree, that the “mortgaged premises described in the complaint” should be sold, with the findings of the .court, with the notice of pendency of action, with the complaint, and with the only legal purpose which the plaintiff in the foreclosure action could have had.
      This construction of the decree is supported by the authorities as I read them, the proposition being that where parts of a description in a conveyance or in a decree are inconsistent, that portion which is shown to be false or erroneous must he rejected, if sufficient remains to identify and locate the premises, and that, in the endeavor to ascertain what portion of the description is false or erroneous, reference may be had to the whole description, to other parts of the instrument or decree, to conveyances or records referred to in the description, and to the .other papers connected with, and the circumstances surrounding, the transaction.
      This principle is clearly recognized in Laverty v. Moore (33 N. Y. 658), and in Masten v. Olcott (101 id. 152).

        In the case first cited the word “northwesterly” was rejected, and the word “southwesterly” inserted.
      In the case last cited the court(rejected an entire description by metes and bounds, and courses and distances, as inconsistent with other portions of the .description.
      In French v. Carhart (1 N. Y. 96) it was held that a reference to a reservation in another deed was to be “construed precisely as though it were incorporated into and formed a part of that deed.”
      The same is held in Hoppough v. Struble (60 N. Y. 430), and in Jackson v. Parkhurst (4 Wend. 369).
      Under this principle the reference in the decree to the release would operate to incorporate in the description of the released premises in the decree the entire description of the released premises as found in the release. When such incorporation is had (and the case may be considered as though actually made) it will be seen at once that the attempted description of the released premises by metes and bounds is erroneous.
      In Case v. Dexter (106 N. Y. 553) the rule is stated as follows : “ It is a familiar rule in the construction of a deed that where the description is ambiguous, or .there is inconsistency in the several particulars, ‘ words, if necessary, may bo supplied by intendment, and particular clauses and provisions qualified, transposed or rejected, in order to ascertain and give effect to the intention.’ (Beardsley, J., in Hathway v. Power, 6 Hill, 453-455.) What words or clauses shall be rejected or qualified in case of uncertainty is frequently determined by giving effect to those parts or clauses of the description which are most certain and to particulars in respect of which the parties would be least likely to have made a mistake.”
      In Robinson v. Kime (70 N. Y. 147-154) the court says: “The rule is well settled that a conveyance is to be construed in reference to its visible locative calls, -as marked or appearing upon the land, in preference to quantity, course or distance; and any particular may be rejected, if inconsistent with the other parts of the description, and sufficient remains to locate the land intended to be conveyed.”
      The foregoing authorities are sufficient to illustrate the general legal proposition above stated, which seems to me to be controlling in the construction of the description found in the decree, and which leads me to the conclusion that the language of the decree, -when properly construed, does not affect the premises claimed by the plaintiff in this action.
      A consideration of the second question above suggested,' namely, conceding that the premises now claimed by the plaintiff are included in the description found in the decree in the foreclosure action, and in the referee’s deed following such decree, is the plaintiff bound by such decree, leads me to the conclusion that he is not.
      It is true the plaintiff was a party to that action and appeared therein by a guardian ad litem; but that action, as shown by the complaint, by the notice of pendency of the action, by the decision of the court, and by all the proceedings down to the time of the entry of the decree, did not in any manner affect the plaintiff or the premises owned by him.
      After the entry of the decree it is found, if this view of the case be taken, that the decree was entered against the premises owned by him, and which were not subject to the lien of the mortgage and not covered by the complaint. The question is not one of regularity, but of jurisdiction. Had the court, in an action in which the complaint makes no reference to the premises owned by the plaintiff, other than to state that they have been released from the lien of the mortgage, and in which the notice of the pendency of the action states that the mortgage is not a lien upon his premises, and in which the decision of the court is that the premises described in the mortgage be sold except that portion owned by the plaintiff and his co-devisees, power to enter a decree directing that the premises owned by him be sold? I think not.
      The case is not like those cited by the learned counsel for the defendants, in which an error has been made in the form of a judgment by which its scope has been enlarged or its amount increased beyond that authorized by a verdict, referee’s report or decision of the court, in which cases it is held that the judgment is not void but irregular. In this case the scope of the judgment was not enlarged or the amount increased beyond that authorized by the decision of the court; but by the decree the judgment of the court is made to apply to premises not contemplated by the decision, and to a subject-matter not brought within the jurisdiction of the court. The existence of a mortgage upon the premises was. necessary to confer jurisdiction upon the court to decree a foreclosure of the mortgage, and a sale of the premises under such foreclosure. As a matter of fact no such mortgage existed, nor had the court power, in such an action, to create a lieu or to direct a sale where no lien existed.
      The court had jurisdiction of the persons and of the subject-matter covered by the complaint, namely, the premises upon which the mortgage remained a lien after the execution of the release, but not of premises upon which the mortgage was no lien.
      Suppose that an action be brought by A to foreclose a mortgage upon land owned by B, in which action 0 is made a party defendant either unnecessarily or as the holder of a subsequent lien upon the lands of B. Suppose, further, that in the entry of judgment in such action by an error a decree was made directing that the lands of C be sold instead of the lands of B, can it be claimed that C, although a party to that action, would be bound by such a decree?
      It does not follow from the fact that the court had jurisdiction of the parties, and of the subject-matter of the action, as presented by the complaint, that it had power to enter a decree touching an entirely different subject-matter.
      The definition of “ jurisdiction,” as given by the later decisions of the courts, includes the element that jurisdiction is not merely the power to hear and determine, but also the power to render the particular judgment which was rendered. (See 12 Am. & Eng. Ency. of Law, 247.)
      In Windsor v. McVeigh (93 U. S. 274) Mr. Justice Field says that the doctrine “ that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but like all general propositions is subject to many qualifications in its application. * if * The doctrine * * * is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the. class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it.”
      In Jones v. Brown (54 Iowa, 74, 79) jurisdiction is defined to be the authority of law to act officially in the matter then in hand.
      In Munday v. Vail (34 N. J. L. 418) it was held that “a decree in equity, which is entirely aside of the issue raised in the record, is invalid, and will be treated as a nullity even in a collateral proceeding.” (See memoranda of cases last above cited in 12 Am. & Eng. Ency. of Law, 248, 249.)
      In short, I am unable to see how the court, in an action to foreclose a mortgage upon specified real estate, has jurisdiction to enter a decree directing a sale of other and entirely different lands, although such other lands may be owned by one who is a party defendant in the foreclosure action.
      If I am right in this view of the case, the plaintiff was under no obligation to move to set aside the judgment in the foreclosure action for irregularity, under the provisions of section 1282 of the Code of Civil Procedure.
      As already stated, the defect in the decree was not an error in the form of the judgment, by which its scope was enlarged or its amount increased beyond that authorized by the decision of the court, but the defect was that the decree was made applicable to a subject-matter whichhad not been brought within the jurisdiction of the court.
      It follows, therefore, that the case of The Corn Exchange Bank v. Blye (119 N. Y. 414) and the other cases cited by counsel for defendants in the same connection, are not applicable.
      The view that I have taken of the case renders it unnecessary to examine or pass upon the other questions raised and argued by the counsel in the case.
      I am not unmindful of the fact that a groat hardship may result to the defendant McCabe, as it is to be presumed that his purchase was made in good faith, and for value; but this consideration cannot change the principles of law which seem to me to be controlling in the case.
      A careful search of the title at the time of his purchase would, however, have disclosed the defect now manifest.
      I also appreciate the fact that the plaintiff has for many years, and, so far as the récord shows, without excuse, slumbered in the enforcement of a right which should have been promptly asserted; but as this is a strictly legal action, and as no equitable defense, based upon that fact, is interposed, I cannot permit it to influence the decision.
      It is, therefore, my opinion that the plaintiff is vested with the title to the interest described in the complaint, and is entitled to judgment for the recovery of its possession.


source: Caselaw Access Project

author: Dyicman, J.: Brown, J.:

license: Public Domain

text:
    John H. Farrelly, Respondent, v. George J. Hubbard, Appellant.
    “ Conversion” defined — the identical bills or coin received need not beretw'ned— arrest under subdivision 8 of section 2895 of the Oode of Oivil Procedure — execution against the person.

    Conversion has reference to specific articles of property which are owned by a person other than the one who is charged with converting them. It does not apply to money, the receipt of which creates only a debt to another.
    An action for conversion cannot be maintained against a person who receives money in a fiduciary capacity.
    Money in bills or coin has no ear-marks, and when it is received by the consent of another the legal obligation thus created is discharged by paying the debt. It is never necessary to repay the identical bills or coin received.
    Where one person, with another’s consent, receives the wages of the latter, it is the duty of the former to pay the amount thereof to the latter, but he is under no duty to turn over to him the same checks or bills that he received from the latter’s employer. For his failure to pay such debt he can be arrested under subdivision 3 of section 2895 of the Oode of Oivil Procedure; but, unless an order of arrest is issued, an execution against his person cannot be issued upon a judgment recovered for the debt.

      Appeal by the defendant, George J. Hubbard, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 22d day of October, 1894, upon the decision of the court, rendered $fter a trial at the Orange Special Term, sustaining the plaintiffs demurrer to the defendant’s answer.

      Lewis E. Garr, for the appellant.

      Eranls Lybolt and John W. Lyon, for the respondent.
   Dyicman, J.:

The interlocutory judgment should be affirmed upon the opinion of the court at Special Term, with costs.

Pratt, J., concurred;' Brown, P. J., not sitting.

Judgment affirmed on opinion of the Special Term.

The opinion of the Special Term was as follows:

Brown, J.:

Section 3026 of the Code of Civil Procedure regulates the issuing of executions upon judgments rendered in Justices’ Courts. Executions against the person can be issued in actions specified in subdivisions 1 and 2 of section 2895, or when an order of arrest has been issued under subdivision 3 of that section.

No order of arrest was issued in the action against Farrelly.

In my opinion the action against him fell within subdivision 3. His receipt of the money from the railroad company was as Hubbard’s agent. He received it in a fiduciary capacity. The action against him could not be said to have been for conversion of personal property.

That expression has reference to specific articles of property owned by a person other than the one who is charged with converting them. It does not apply to money, the receipt of wdiich creates only a debt to another.

Honey in bills or coin has no ear-marks, and wffien it is received by the consent of another, the legal obligation thus created is discharged by paying the debt. It is never necessary to repay the identical bills or coin received.

Farrelly had Hubbard’s consent to receive his wages, and his duty was to pay the amount to Hubbard, but he was under no duty to turn over to him the same checks or bills that he received from the railroad company.

For his failure to pay the debt he could have been arrested under subdivision 3 of section 2895 of the Code of Civil Procedure, but, unless an order of arrest was issued, an execution against bis person could not be issued upon a judgment recovered for tbe debt. The Code authorizes a demurrer to an answer where the defense pleaded is insufficient in law, and, as the answer in this case sets out all the facts, the question of the justification is one of law solely, and is properly before tbe court.

Segelken v. Meyer (94 N. Y. 473) and other cases cited by the plaintiff are not directly in j>oint upon the question discussed, as sections 549 and 550 of the Code were amended in 1886, and the rule applied in the cases cited is now somewhat changed from what it was when Segelken v. Meyer was decided. (See Moffatt v. Fulton, 132 N. Y. 507.) But for reasons stated I think the demurrer must be sustained. Plaintiff is allowed costs.


author:
Dykman, J.:
      Brown, P. J.:

text:
    Mary Clifford, Appellant, v. Frederick Kampfe and Others, Respondents.

      Inchoate right of dower — action by a married woman for its protection.

    A wife has rights in the land of her husband, which, although they are inchoate or incipient, the courts will protect. They do not constitute an estate, nor an existing interest in iand, but they are based upon a possibility of becoming such, and are entitled to protection in the same degree as the vested rights of a widow.
    Where an action is brought by a married woman for the protection of that which may become her separate estate, she can prosecute the action as if she were a single woman.
    Appeal by tlie plaintiff, Mary Clifford, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on tlie 18th day of May, 1894, upon the decision of tlie court, rendered at tlie Kings County Special Term, sustaining the defendants’ demurrer to the complaint and dismissing the complaint, and also from the decision or order of tlie^ Supreme Court, made at the Kings County Special Term and entered in said clerk’s office on the 14th day of May, 1894, sustaining such demurrer.

      Albert O. Aubery, for the appellant.

      Herman F. Koepke, for the respondents.
   Dykman, J.:

The plaintiff in this action alleges that she is the wife of James Clifford, and as such has an inchoate right of dower in the premises described in the complaint; that in June, 1892, her husband was seized in fee of such premises, and at that time, in conjunction with some person unknown to the plaintiff, he executed to the defendants a deed of conveyance of the jjremises, which purports to have been executed by Maria Clifford, wife of James Clifford; that the plaintiff never signed nor acknowledged such deed, and she asked that the same, so far as it affects her, be set aside.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and that the -plaintiff had not legal capacity to sue because the action does not affect her separate estate. The demurrer was sustained and the plaintiff has appealed from the judgment. While it may be quite doubtful whether the execution of the deed by Maria Clifford, wife of James Clifford, would constitute any bar or obstruction to the rights of Mary Clifford, the plaintiff, yet we have concluded to examine and decide the case upon its merits. While there is a difference between the rights of a wife and a widow in the land of her husband, yet both have rights which the courts will protect. The right of the wife is denominated inchoate or incipient. While it is not an estate, nor an existing interest in land, yet it is based upon a possibility of becoming such, and it is the legal right of a wife to have such possibility protected. Such inchoate right of a wife cannot be impaired or evaded, and it is entitled to the same protection as a vested right of a widow. (Platt v. Brick, 35 Hun, 121; Mills v. Van Voorhies, 20 N. Y. 420; Simar v. Canaday, 53 id. 298; Babcock v. Babcock, 53 How. Pr. 97; Matthews v. Duryee, 4 Keyes, 525.)

In the case of Babcock v. Babcock (53 How. Pr. 97) the husband of the plaintiff, on the eve of their marriage, made a voluntary convej'ance of his real property to his son and daughter without the knowledge of the plaintiff. After the marriage the plaintiff brought a suit to nullify the deed, and it was held that the plaintiff have judgment declaring such deed void as to her, and that she had an inchoate dower right in all said real estate notwithstanding such conveyance, and a future absolute right of dower therein upon the event of the death of her husband in her lifetime; and, further, that the wife is not required to wait before bringing her action until her inchoate right becomes absolute by the death of her husband. It is the present injury the plaintiff has sustained in the loss of her inchoate right in the lands in question that entitles her to maintain her present action, and the conveyance being made on the eve of the marriage to defraud the wife of the interest in the land which she would have acquired by the marriage, a court of equity will entertain her action for the conservation of the right which she has lost or may lose by the fraudulent acts of the defendants, and grant her the relief to which she may be entitled equitably.

The same doctrine is taught in the case of Swaine v. Perine (5 Johns. Ch. 482). We liad occasion to examine the question iii another aspect in The Matter of the Brooklyn Bridge (75 Hun, 558), and we there held that the inchoate right of dower of the wife must be recognized and protected in an award for land appropriated under the right of eminent domain.

The deed in question purports upon its face to release the inchoate right of dower of the plaintiff, at least such is its legal effect, and it should be nullified so far as she is concerned. We do not consider the objection to the capacity of the plaintiff to maintain this suit well taken.

The action is for the protection of what may become her separate estate, and she can prosecute the same as if she was a single woman.

The judgment should be reversed, with costs, and the demurrer to the complaint should be overruled, with leave to the defendant to answer in twenty days on payment of costs.

Pratt, J., concurred.

Brown, P. J.:

I concur that’ the action may be maintained on tlie authority of Burns v. Lynde (6 Allen, 300); Madigan v. Walsh (22 Wis. 501).

Judgment reversed, with costs, and demurrer overruled, with leave to defendant to answer in twenty days on payment of costs.


author: Brown, P. J.:

text:
    James W. Fox and Others, Appellants, v. Franz O. Matthiessen, Respondent.

      Appeal from a judgment — notice of an intention to bring up orders for review — what orders are reviewable thereunder — intermediate order defined — the reopening of a case on rebuttal is discretionary — ruling thereon not reviewable on appeal.

    A notice of appeal from a judgment which gives notice of an intention to review an order which denied a motion for the new trial of the action on the judge’s minutes, under the provisions of section 1316 of the Code of Civil Procedure, brings up such order for review upon the appeal; but an order denying a motion to set aside a verdict and for a new trial, on the ground of the alleged misconduct of one of the jurors, andan order made denying a motion to resettle such order, are not intermediate orders affecting the judgment in the action, and a statement in the notice of appeal from the judgment of an intention to bring up such orders for review upon the appeal is not sufficient to enable the appellate court to review them, although the judgment was not entered until after the granting- of such orders.
    An intermediate order is one made between the commencement of the action and the time the successful party has the right to enter final judgment therein.
    The plaintiff in an action has no right to withhold a part of his testimony until lie has ascertained how far the defendant’s testimony would contradict the same, and then offer the balance of las testimony in rebuttal; it is discretionary with the trial court how far it will permit the reopening of a case on rebuttal, and its ruling in that respect is not reviewable upon appeal.
    Appeal by tlie plaintiffs, James W. Fox and others, from a judgment of tlie Supreme Court in favor of tlie defendant, entered in tlie office of the clerk of the county of Westchester on the 16th day of June, 1894, upon the verdict of a jury rendered after a trial at the Westchester Circuit, with notice of an intention to bring np for review upon sucli appeal an order made at the Westchester Circuit on the 12th day of April, 1894, and entered in said clerk’s office denying the plaintiffs’ motion for a new trial made upon tlia minutes, ail order made at the Westchester Special Term and entered in said, clerk’s office on the 10th day of May, 1894, denying the plaintiffs’ motion for a new trial on the ground of the misconduct of a juror, and an order made at the "Westchester Special Term and entered in said clerk’s office on the 26th day of May, 1894, denying the plaintiffs’ motion to resettle the order entered in said clerk’s office on the 10th day of May, 1894.

      James M. Hunt, for the appellants.

      Martin J. Keogh, for the respondent.
   Brown, P. J.:

This action was brought to recover commissions upon the purchase price of certain sugar refineries, alleged to have been earned under an agreement with the defendant.

Upon the trial the jury rendered a verdict for the defendant.

The verdict was rendered on April 12,1894, and an order entered on that day denying a motion for a new trial on the judge’s minutes, but judgment was not entered until June sixteenth.

On May fifth the plaintiffs moved, at Special Term, upon affidavits and upon the minutes of the trial, to set aside the verdict and for a new trial, upon the ground of the misconduct of a juror; and an order denying such motion was made and entered on May tenth, and on May twenty-sixth another motion was made to resettle the order of May tenth, which was denied upon the same date and an order duly entered.

The notice of appeal in this case is from the judgment, and states that the plaintiffs intend to bring up for review at the same time the order denying plaintiffs’ motion for a new trial upon the minutes and the orders of May tenth and May twenty-sixth.

There is no appeal from any of the orders, except in the manner and form stated.

The form of the appeal does not bring before us for review the orders of May tenth and May twenty-sixth. Those were not intermediate orders.

Section 1316 of the Code provides that an appeal from a final judgment brings up for review “ an intermediate order which is specified in the notice of appeal and necessarily affects the final judgment.”

A notice of appeal from a judgment, which specified an order denying a motion for a new trial on the judge’s minutes, was held, under this section, to bring up such an order for review. (Hymes v. Van Cleef, 16 N. Y. Supp. 343 ; Pfeffer v. B. Ry. Co., 24 id. 490.)

But an order denying a motion to set aside a verdict on the ground of surprise, irregularity in the trial and misconduct of one of the jurors, has been held not to be an intermediate order necessarily affecting the judgment. (Selden v. D. & H. Canal Co., 29 N. Y. 635; Hymes v. Van Cleef, 15 N. Y. Supp. 341.)

In the last case the court defined an intermediate order to be one made between the commencement of the action and the entry of the judgment from which the appeal is taken.

The orders appealed from in this case fall within the letter of that definition, but they do so merely from the fact that the defendant delayed entering the judgment long after he was entitled to do so, and not from any connection existing in law or fact between She orders and the judgment. The motions were not addressed to the trial court, but to the Special Term, long after the Circuit adjourned; and while it is a fact that, had they been granted, judgment would not have been entered, it is equally the fact that there was the legal right to enter the judgment immediately upon the rendition of the verdict, and neither the motions nor the orders that the court might make therein necessarily affected that right, and if it was necessary for us to define an intermediate order we should designate it as one made between the commencement of the action and the time the successful party had a right to enter final judgment. We are of the opinion, therefore, that the orders denying a new trial for the misconduct of the juror are not before us for review, and the appeals therefrom are dismissed.

Upon the merits of the case the testimony was of a most conflicting character. The jury adopted the defendant’s version of the case, and their determination of the facts is final.

The exceptions to the exclusion of testimony are not sustained.

The testimony offered in rebuttal was properly excluded.

. The facts which it was sought to bring out were not material to the controversy.

It was not denied that Leonard and defendant had had frequent conversations, both at their respective homes and on the trains.

The facts that defendant might have been frequently at Leonard’s home, or that he was there on a Sunday afternoon when Leonard started for Philadelphia, or that he once had a long conversation with Leonard on the train were all corroborative of Leonard’s testimony, and, if they had any relevancy to the case, tended to establish Leonard’s version of the contract. It was, therefore, a part of the plaintiffs’ original case, and they had no right to withhold a part of their testimony until they had ascertained how far defendant’s testimony would contradict their testimony, and then .offer the balance in rebuttal.

It was discretionary witli the court liow far it would permit a reopening of the case on rebuttal, and its ruling in that respect is not reviewable on appeal.

We have examined the other exceptions, but there are none that require notice.

The judgment and order denying a new trial upon the judge’s minutes must be affirmed, with costs, and the appeals from the orders of May tenth and May twenty-sixth are dismissed, with ten dollars costs and disbursements.

Pratt and Dykman, JJ., concurred.

Judgment and order denying motion for a new trial on the judge’s minutes affirmed, with costs; appeals from orders of May tenth and May twenty-sixth dismissed, with ten dollars costs and disbursements.


author: Cullen, J.:

text:
    William Albrecht, Appellant, v. The County of Queens, Respondent, Impleaded with Others.

      Liability of a county for the malfeasance of its officers- — counties are not merely municipal corporations — effect of declaring them to be such — claims against them, how enforced.

    Prior to the enactment of the County Law (Chap. 686 of the Laws of 1892) no liability rested upon a county for the malfeasance of its officers.
    ■The theory upon which cities and villages are held to a liability different from that of counties and towns is that they obtain, upon the request of their citizens, valuable franchises, in consideration for which they undertake to perform. with fidelity their charter obligations. This principle is not applicable to counties which, while they are made by statute municipal corporations, are something more than such. They are political divisions of the State, so recognized in the Constitution, and beyond the power of the Legislature to abrogate, and while the State can impose upon counties a liability for the neglect of county officers to perform local duties, an intent to create such a liability should not be inferred from the mere fact that in the general revision of the laws relating to counties they are declared to be municipal corporations.
    As a rule, an action cannot be maintained against a county to enforce a claim against it, but such claim must be presented to the board of supervisors of such county for audit, and in case of a refusal on the part of such board to audit it the remedy is by mandamus.
    Appeal by the plaintiff, William Albrecht, from a judgment of the Supreme Court in favor of the defendant, The County of Queens, entered, in the office of the clerk of the county of Kings on the 14th day of September, 1894, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint as to such defendant, and also from an order entered in said clerk’s office on the 6th day of September, 1894, sustaining such defendant’s demurrer to the plaintiff’s complaint.
    Darley, Bell de Crane, for the appellant.

      F. II. Yon Yechten, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of dismissal and from an order sustaining a demurrer to the plaintiff’s complaint.

The action is to recover for personal injuries sustained by the plaintiff in the falling of a bridge across Newtown creek between the counties of Queens and Kings. The complaint alleged that it was the duty of the boards of supervisors of the two counties to maintain the bridge, and that the injury happened from the negligence of such boards in failing to maintain the bridge reasonably safe and secure for public travel. The question presented is whether the comity is liable for the negligence of the board of supervisors in failing to discharge this duty.'

The opinion of the learned trial judge on sustaining'the demurrer,, in which we concur, leaves but little to be added by us. It is practically conceded by the counsel for the appellant that, prior to the-enactment of the County Law (Chap. 686, Laws of 1892), no liability rested oil tlie county for tlie malfeasance of the supervisors or the other county officers. The same rule applied to towns. Towns in this State were not liable for failure to keep the highways in repair until the passage of chapter 700 of the Laws of 1881, and that statute created liability only in such cases where the commissioners of highways would have been personally liable in case of an action against them individually, a very different liability from that imposed on cities and villages. (Lane v. Town of Hancock, 142 N. Y. 510.)

The theory on which cities and villages were first held liable for defects in highways is stated in Conrad v. Village of Ithaca (16 N. Y. 158) and Weet v. Village of Brockport (Id. 161, note).

It is not merely that they are corporations, but that they obtain upon the request of their citizens valuable franchises, and that in consideration therefor they undertake to perform with fidelity their charter obligation. This may be a fiction, as the Legislature can incorporate a city without the consent of the inhabitants, but, nevertheless, the principle is too well settled in the law to be ignored. This principle is not applicable to counties, which, while the statute may make them municipal corporations, are something more than such. They are political divisions of the State, so recognized in the Constitution and beyond the power of the Legislature to abrogate. The State doubtless can impose upon counties liability for neglect of county officers to perform local duties. But we think no such intent should be inferred from the mere fact that in a general revision of law relating to counties they are declared to be municipal corporations.

There is a further objection to the maintenance of this action; there has been no audit of the plaintiff’s claim. From the earliest period in the history of the State to the present it has been necessary to present claims against the county to the board of supervisors for audit. "With some unimportant exceptions, dependent on special statutes, or where the claim was liquidated by the existence of a county obligation for a specific sum, suits could not be maintained against the county for claims or county charges. The remedy was by mandamus to tlie board of supervisors. If the claim was fixed by law so as to involve no discretion, a mandamus would lie to audit it at a specific amount. If the claim required the exercise of discretion or judgment, the audit was conclusive unless reversed on review, and could not be attacked collaterally. (Osterhoudt v. Rigney, 98 N. Y. 222; Supervisors, etc., v. Briggs, 2 Den. 26; People ex rel. Johnson v. Supervisors, 45 N. Y. 196; People ex rel. Myers v. Barnes, 114 id. 317.)

By section 12, subdivision 2, of tbe County Act, tlie same power is still vested in tlie board of supervisors to annually audit all accounts against tlie county. If tlie plaintiff lias a claim against the county, it must bo submitted to the board of supervisors.

The judgment and order appealed from should be affirmed, with costs and disbursements.

Pratt and Dykman, JJ., concurred.

Judgment and order affirmed, with ten dollars costs and disbursements.


author: Pratt, J.:

text:
    John Schlachter, Respondent, v. Robert E. Hopkins, Appellant, Impleaded with Others.

      Action on a building contract — rental value allowed foi' delay in completing the work.

    If it be shown upon the trial of an action, brought by a contractor to recover the amount alleged to be due him under a building contract, that if he had used reasonable diligence and dispatch the building would have been ready for occupancy at a certain date, the defendant is entitled to be paid by the plaintiff the pro rata portion of the rental value of such premises for the time subsequent to such date during which the said premises were uncompleted.
    Brown, P. J., dissenting.
    Appeal by the defendant, Robert E. Hopkins,' from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of May,' 1894, upon the report of a referee, with notice of an intention to bring up for review upon such appeal said judgment, tlie rejiort of the referee, the appellant’s exceptions to said report, the appellant’s • proposed findings and conclusions of law, and his exceptions to the referee’s refusal to find as requested by him.

      E. T. Boat, for the appellant.

      James M. Bunt, for the respondent.
   Pratt, J.:

This is an action instituted to foreclose a mechanic’s lien alleged to have been created by performance of a contract entered into by the plaintiff with defendant Hopkins. The contract was executed on September 12, 1891, and the work called for by its terms was to be completed on April 1, 1892, and it is admitted that it was not finished until July 10,1892.

That the plaintiff delayed in commencing work under the contract is undisputed; that the defendant TIopkins, as early as November 6,1891, complained to the plaintiff and the architect of the delay in its prosecution; at that date they were only laying the foundation ; that the architect appreciated the justice of such complaint is manifest from the fact that lie testifies that he repeatedly urged plaintiff to hurry the work; that Hopkins continued to complain of the tardiness in the prosecution of the work, and frequently urged the plaintiff to be more expeditious with the work; that about January 11, 1892, Hopkins insisted that the chimneys, arches and fire places were illy and unskillfully constructed, and at his request the matter was referred to another, who, after a delay of two weeks, decided that after some slight alterations the work on chimneys, etc., would do; such alterations were made during such two weeks. For some reason, not apparent from the testimony, all other work on the premises was stopped. Would it not have been fairer and more reasonable to have continued the work during such delay on other portions of the building which required it %

Hopkins directed that some stairs other than those provided by the contract should be placed in the building, and agreed to pay the cost of constructing the same in addition to the sum to be paid under the contract, and the amount ($215) charged for same was allowed by him. The testimony does not disclose when the work on said stairs was commenced, or how long a time was consumed to supply them and perform the extra labor caused by their construction and erection; upon this point it is somewhat conflicting. From a careful perusal of the evidence, my best judgment is that, an allowance of three weeks for such delay would be equitable.

The referee did not err in allowing the defendant Hopkins the sum of $495.05 for moneys paid by him for painting required by the contract, and such sum should be deducted from the,- contract price.

. The testimony throughout shows to my mind that the plaintiff did not prosecute the work called for by the contract with diligence and dispatch ; that whatever delays might inferentially be charged to Hopkins were more than counterbalanced by the apparent delays and lack of energy and attention of the plaintiff in performing such contract.

It is clearly shown that Hopkins, with the exceptions of the delays hereinbefore noted, did everything in his power to facilitate and hasten the work; the promptness with which he paid the sums alleged to be due under the contract, and tlic fact of his pecuniary advances to plaintiff to relieve him financially, and to provide him with funds to prosecute the work, his waiver of the performances of several items required by their agreement, as also his celerity in paying the charges for extra plumbing and mason work, all abundantly prove this. On the other hand, the testimony clearly shows the plaintiff’s lack of interest in the work; that he farmed out every part of the general construction to various sub-contractors, over whom Hopkins had no authority, and with whom he could not advise; that upon the occasion of such complaint to the plaintiff he threw the blame, or cause of the same, upon one of these sub-contractors ; that said contract was so sublet without the written consent of Hopkins, which the contract obligated the plaintiff to procure; his almost entire failure to give the work his personal supervision as evidenced by his rare and infrequent visits to the premises during the progress of the work; that although behind time on this contract he transferred mechanics from the Hopkins building to tlic Ramsay house, for whose construction he also had an agreement.

I am of the opinion that if the plaintiff had used reasonable diligence and dispatch the building would have been ready for occupancy, notwithstanding the delays attributed to defendant Hopkins, on May 1, 1892; if it had been completed at 'that date the uncontradicted testimony shows that the premises could have been leased to a responsible tenant for $1,100 per year.

I am of the opinion that the defendant Hopkins is entitled to be paid by the plaintiff the pro rata portion of said $1,100 from May 1, 1892, to July 16, 1892; that plaintiff should be allowed the sum of $1,500, being the amount of the last payment under the contract; the further sum of $215, the cost of erecting the additional stairs, etc.; making together the sum of $1,715 ; from such amount should be deducted the sum of $495.65, paid by defendant Hopkins for painting, etc.; the further sum of • $840, as liquidated damages under section 12 of contract, $10 per day from April 22, 1892, to July 4, 1892.

The plaintiff is entitled to recover upon the evidence from the defendant Hopkins the sum of $399.35, with interest thereon from July 16, 1892, and the judgment entered herein on May 26, 1894, should be modified to conform therewith, and in other respects said judgment should stand, without costs.

Dykman, J., concurred; Brown, P. J., dissented.

Judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulates to reduce the judgment to $399.35, with interest from July 16, 1892. If such stipulation-is filed in twenty days judgment, so modified, is affirmed, without costs.


text:
    Charles H. Slocum, Appellant, v. Walter C. Gilman, Respondent.

      Verdict for damages for « breach of contract — proof of the existence of the contract is essential thereto — a ratification must be of the whole contract — no ratification after the date fixed for its execution.

    In nn action, "brought to recover damages for a breach of contract a verdict for damages in any amount, even nominal, is predicated upon the existence of the contract.
    A ratification of a contract made by one person for another, must, to be effectual, be of the whole contract.
    Where a person, acting without authority for another, agrees that the latter will sell certain property and assign a certain lease to a third person on a specified date, nothing that the principal may say subsequent to such date can bind him to comply with the terms of the unauthorized contract.
    Appeal by the plaintiff, Charles H. Slocum, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day. of February, 1894, upon the verdict of a jury for six cents damages rendered by direction of tlie court after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 'Tth day of March, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Jo!m Elton Wayland wncLWilliam II. Ha/rris, for the appellant.

      WiTlimn M. Benedict, for the respondent.
   Brown, P. J.:

The complaint in this action alleged that the plaintiff and defendant entered into a contract whereby defendant sold to plaintiff the unexpired tenn of a lease of a saloon and eating house in the city of Brooklyn, and the fixtures, stock and good will of said business for the sum of $5,500. That $300 was to be paid in cash to defendant, $200 to an agent named Lloyd for negotiating the sale, and the balance by the conveyance of a farm owned by plaintiff and situated in Dutchess county, and that possession of said lease and property so sold was to have been given on February 13, 1893.

That plaintiff, on the -9th of February, had conveyed his said farm to the defendant and paid the $500 as required by the contract, but that defendant refused to give plaintiff possession of his said saloon or transfer the lease and stock, and judgment was asked for the sum of $5,500 damages.

It was essential to the proof of the cause of action alleged in the complaint that there should have been a contract in writing between the parties or proof of delivery of the deed of the farm and payment of the money to the defendant.

And there was produced by the plaintiff and put in evidence upon the trial a paper, of which the following is a copy :

“Brooklyn, §th February, 1893.
“ Received from Olías. IT. Slocum the sum of Three Hundred dollars ($300), the difference agreed upon in Exchange of my Myrtle Avenue Cafe & Chop House (369 Myrtle Avenue), for the Store & residence property of said Slocum described in deed delivered to me this day properly executed, and I agree to give said Slocum possession of said Myrtle Avenue Cafe & Chop House together with all fixtures & chattels pertaining thereto on 10th Febry., 1893, at 2 p. m., at which time the said Slocum, upon his payment of One month’s rent in advance & the broker’s fees of Two hundred dollars, the above transfer to include license & existing lease on premises.
“For W. D. GILMAN,
“ A. Lloyd, Agent.
Time of transfer postponed until 4: 30 p. m.
“A. LLOYD, Agt.
“ CHAS. II. SLOOÚM.”

Lloyd, who signed this instrument as defendant’s agent, had no authority to execute it. He was not authorized to make or sign a contract for the defendant, nor had he authority to accept for him payment of airy money or the delivery of a deed of the farm. He had been employed by the defendant to find a purchaser of the saloon, but had never been authorized to make or execute any contract for the sale thereof.

It was claimed on the trial, however, that the execution of this instrument by Lloyd had been ratified by the defendant, and the trial court appears to have taken that view of the evidence. A verdict for damages for any amount, even nominal, is predicated upon the existence of a contract, and there was concededly no contract unless the defendant had ratified the execution of the written receipt by Lloyd. ■

If there was any ratification, it must have been of the whole instrument, and I am unable to perceive how defendant could be held to have made a contract to assign his lease of the saloon and escape the conclusion that he had accepted a delivery of the deed and payment of the money with a consequent liability for the value of the farm and the amount of money received.

This view of the case is now presented by the appellant, and if the evidence would permit the conclusion of a ratification of Lloyd’s act, the ruling of the trial court was wrong, and the case should have been submitted to the jury.

We are of the opinion, however, that a finding of ratification by the defendant could not be sustained on the evidence. The agreement upon defendant’s part contained in the receipt was to transfer his lease and give possession of the saloon to the plaintiff at two p. m. on February tenth. The defendant did not see this paper until after mat date. The plaintiff testified that it was shown to him at an interview on the thirteenth, and he then said it was “ all right.”

Lloyd testified tliat on tlie evening of tlie ninth be notified defendant that he had made the sale in his behalf, and asked him to call at his office on the morning of the tenth, but that he did not come.

That at a later interview, the date of which he was uncertain about, but which he finally fixed as on the eleventh, he told defendant all the particulars and showed him the papers, and that he was satisfied. The time for the transfer of the lease had then passed, and nothing that defendant then said could bind him to the terms of the paper.

There is nothing in the evidence as to the subsequent interviews (and there were many of them) which would permit the inference that either of the parties regarded the written receipt as the embodiment of a contract between them.

Plaintiff evidently did not consider that he had made an irrevocable delivery of the deed, as he repossessed himself of both deed and money and had them in liis possession for two days, and produced and tendered them to defendant at the interview on the thirteenth, while the defendant repeatedly refused to transfer the lease unless he could obtain from liis landlord a release from liability for rent that would accrue subsequent to the assignment.

It is impossible for me to regard the claim of ratification of the receipt by the defendant as an honest one on the part of the plaintiff. The delivery of the deed and payment of the money to Lloyd was a perfectly useless act, so far as it could have any bin ding force on the defendant. The plaintiff knew that. lie had had repeated interviews with the defendant, and the terms of the contract between them had been agreed upon tentatively, but defendant had refused to execute the agreement.

Plaintiff knew that Lloyd had no authority to make any agreement for the defendant, and a ratification of the execution of the receipt would be absolutely inconsistent with the defendant’s conduct both before and after its date.

The claim, in my judgment, is a mere pretense without foundation in the facts of the case, and the judgment should be affirmed, with costs.

Pratt and Dyicman, JJ., concurred.

Judgment affirmed, with costs


author: Dykman, J. :

text:
    Stephen B. Sturges, Respondent, v. John E. Hart, Asa W. Parker and Sophie G. Parker, Appellants, Impleaded with Others.

      Mortgage foreclosure — assignment of a mortgage to the owner of the fee — assignor estopped from questioning its validity.

    Upon the trial of an action brought to foreclose a first mortgage which had been assigned by one Doody to the plaintiff's assignor, it was shown that one Hart, holding the legal title to certain premises for the defendant Doody, executed on the same day two mortgages thereon to the defendant Parker. He subsequently reconveyed the premises to Doody; Doody thereafter paid the first mortgage to Parker and took an assignment of it to himself. When Doody made the last payment upon the first mortgage and took the assignment thereof, Parker knew that he desired t'o continue, the same in existence for the purpose of using it to procure a future loan.
    In an action brought to foreclose the first mortgage, which had been assigned by Doody to the. plaintiff’s assignor, which was defended by Parker, who held the second mortgage,

      Meld, that the mortgage was not extinguished by the payment of the amount due thereon and the taking- of the assignment thereof by Doody, the owner of the fee;
    That Parker’s written assignment of the first mortgage to Doody, coupled with his knowledge of the purpose for -which Doody -wished the same, constituted his assent to the continuance of such mortgage in existence;
    That if Parker had intended to insist upon the extinguishment of the first mortgage, he should have done so at the time he gave the assignment thereof;
    That as Parker by his assignment of the mortgage to Doody conferred upon him the title to the mortgage and the power to dispose of the same, he was estopped from asserting- any defense to the mortgage.
    Appeal by tlie defendants, Jolm E. Hart, Asa W. Parker and Sophie G. Parker, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tlie clerk of the county of Kings on tbe lOtb day of August, 1894, upon tbe decision of tlie court, rendered after tbe trial at tlie Kings County Special Term, directing tlie foreclosure and sale of certain mortgaged premises.
    Also an appeal by tlie defendants Asa ~W. Parker and Sophie G. Parker from an order of tlie Supreme Court, made at the Kings County Special Term and entered in said clerk’s office on tbe 13th day of December, 1894, denying tlieir motion to reopen tbe case for the purpose of admitting additional testimony.

      A. W. Pwriter, G. W. Wright and F. A. Ward, for the appellants.

      Shivrges <& Roby, for the respondent.
   Dykman, J. :

This is an action to foreclose a mortgage for $8,000 executed by the defendant ITart to the defendant Asa W. Parker, bearing date May 8, 1891, and' assigned by Parker to the defendant Daniel Doody August 2?, 1891, and by Doody assigned to the plaintiff September 3, 1891.

On the same day Hart made another mortgage upon the same premises to Parker for $20,000, which was recorded five minutes later than the first mortgage for $8,000.

Both of the assignments of the first mortgage were recorded on or before September 5, 1891.

It is to be gathered from the case that at the time of the execution of these mortgages Hart held the legal title to the premises for Doody, who was the real owner, and made the mortgages at his request and for his benefit; and, further, that he subsequently reconveyed the premises to Doody.

Doody paid the mortgage in suit to Parker and took an assignment of it to himself, instead of a satisfaction piece, which he at one time contemplated taking.

Daniel Doody and wife subsequently conveyed portions of the same premises to the defendant Sophie G. Parker, and then she, with her husband, reconveyed the premises to Doody and took back two mortgages upon the same from him, one for $30,000 and the other for $12,600.

Asa W. Parker, Sophie G. Parker and Hart, the mortgagor, all served separate answers to the complaint. All the answers set up payment of the mortgage in suit by Doody to Parker, the mortgagee.

The cause was tried before a judge without a jury, and he rendered a judgment in favor of the plaintiff, from which Hart and Asa and Sophie Parker have appealed.

It is true that Doody paid the amount of the mortgage in suit to Asa W. Parker, but it by no means follows that the mortgage was extinguished by such payment. It must be remembered that Doody was not the mortgagor, and although his intention when he made the first two payments upon the mortgage was to have the same canceled, yet when he made the last payment he desired to continue the same in existence, for the purpose of using the same for a further loan. That intention was communicated to Parker, and with that knowledge he assigned the mortgage to Doody. Parker, therefore, had notice of the intention of Doody to continue the existence of the mortgage, and his written assignment with that knowledge constitutes his solemn assent to such continuance.

Parker then held the second mortgage of $20,000, and if he intended to insist upon the extinguishment of the first mortgage, that was his time to make such insistance.

By failing to do so, and making a written assignment of the mortgage, he furnished Doody with the means of procuring a loan thereon from the plaintiff, who thus became a Iona fide holder of the same.

The inequity of allowing the defense to prevail in this action against the plaintiff is so palpable that there seems to be no necessity either for further pursuit of the subject or for the citation of authorities.

As the mortgagee Parker, by his assignment of the mortgage to Doody, confei’red upon him the title to the mortgage and the power to dispose of the same, he should be now estopped from asserting any other claim or defense against the mortgage. (McNeil v. Tenth National Bank, 46 N. Y. 325.)

The judgment should, therefore, be affirmed, with costs.

After the trial of the action a motion was made to open the ease and introduce newly-discovered evidence. The motion was denied, and the defendants Asa and Sophie Parker have appealed from the order of denial.

According to the principle upon which we base our decision, it is obvious that the new proof desired to be introduced could not change the result, and, therefore, the motion was properly denied.

The order should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs. Order affirmed, with ten dollars costs and disbursements.


text:
    Samuel Phillips, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Damages f 'or personal injuries — horses frightened by the blowing of a locomotive whistle — liability of the railroad company therefor.

    The public have no easement in common with railroad companies except at grade crossings. In other places travelers upon highways must avoid the exposure and danger which may result from the sound of moving trains.
    Upon the trial of an action brought to recover damages for personal injuries sustained by the plaintiff by reason of his being thrown from a wagon, it was shown that he was driving across a bridge, upon a highway, over a railroad as a train was passing under the bridge; that as the train approached the bridge, and again as it passed under the bridge, the engineer blew his whistle, which frightened the horses, causing them to run away.
    It further appeared that there were, two highway grade crossings beyond the bridge in question, and that the whistle was blown in each case at the distance from such grade crossing required by the statute, for the purpose of giving warning of the approach of trains at such grade crossings.

      Held, that in the absence of evidence of wantonness or malice on the part of the engineer, the railroad company was not liable for injuries resulting from his act in blowing the whistle, where such act was done under the obligation imposed by law to give alarms at public grade crossings.
    Appeal by the defendant, Tlie New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 26th day of September, 1894, upon the verdict of the jury rendered after a trial at the Rockland Circuit, and also from an order entered in said clerk’s office on the 16th day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Ashbel Green and Herbert E. Kinney, for the appellant.

      Abrami A. Demarest, for the respondent.
   Dykman, J. :

This is an action for the recovery of damages resulting from personal injuries to the plaintiff, received at a highway crossing in Rockland county over the West Shore railroad, which is operated by the defendant.

The highway at the place of the accident is carried across the railroad by a bridge above the grade of the road. The accident happened between half-past six and seven o’clock in the morning of March 21, 1894. During the half hour between half-past six and seven o’clock in the morning of that day two trains passed south on the West Shore railroad under the bridge mentioned. The first of those trains was a train of the New York, Ontario and Western Railway Company, and the second was a train of the West Shore Railroad Company.- The Ontario and Western train passed down about six minutes in'advance of the West Shore train.

The plaintiff was driving two horses attached to a wagon loaded with furniture. He was sitting on the right-hand side of the seat, and there were two other persons on the same Seat; as the plaintiff turned to the east to cross the overhead bridge the horses were walking, and their feet were on the bridge when the persons in the wagon saw a railroad train coming from the north, about 825 feet from the bridge which the plaintiff was then about to cross. The plaintiff drove on, and when the train was about twice its own length north of the bridge the locomotive whistle was sounded and the horses started upon a run. When the locomotive was under the highway bridge the whistle was again sounded, and the horses continued to run. The wagon was upset, the plaintiff and the^ other persons were thrown out, and he received the injuries of which he complains.

The cause was tried at tlie Circuit before a jury, and the plaintiff obtained a verdict for $2,500. The defendant has appealed from the judgment and from an order denying a motion for a new trial made upon the minutes of the court.

There is no claim that the blast of the whistle was given wantonly or maliciously, and the proof is that neither of the engineers saw the plaintiff’s wagon.

It was of primary importance upon the trial to determine which of the two trains passing under the bridge at the time of the accident frightened the horses and caused the injury, and although the question was decided by the jury, we can review the testimony under the appeal from the order denying the motion for a new trial upon the minutes of the court.

One of the witnesses for the plaintiff, who was riding in the wagon at the time, said on liis direct examination that tlie train was a Haverstraw train, No. 62, but on bis cross-examination be said be saw tbe tops of tbe cars and did not see tbe sides at all, and did not know what name was on tbe side of tbe cars, but that he judged from tbe time tbe train went through there that it was that train; that there was no other train that went down at that time.

Tbe testimony was plainly inferential, and amounted only to the judgment or opinion of tbe witness. Moreover, it is antagonistic to tbe following facts, which are undisputed :

Blauvelt is nine-tenths of a mile north of Orangeburgli, and the bridge in question crosses tbe railroad between tbe two stations about a quarter of a mile north of Orangeburgh. Tbe running time between them is two minutes.

Tbe Ontario and Western train passed Blauvelt on tbe morning in question at six-thirty-five o’clock, and tbe West Shore train passed Blauvelt at six-forty-one, six minutes behind tbe other train.

Two witnesses on behalf of tbe defendant, and tbe only persons outside of tbe plaintiff and bis party who witnessed tbe accident, testified that after they reached tbe place where tbe wagon was upset, and tbe horses bad been released and were being led from •the wagon, tbe second train passed by, and they fix tbe time between tbe two trains at from five to seven minutes.

These facts so far outweigh the testimony of tbe plaintiff’s witness as to constitute a decided preponderance of proof, and lead to the natural, if not irresistible, inference that tbe accident was caused by tbe blast from tbe whistle of tbe locomotive attached to tbe Ontario and Western train, which was not operated by tbe servants of the defendant.

Tbe verdict is so much against tbe decided weight of evidence on this point that it ought not to stand.

Proceeding with the examination of the case in respect to tbe negligence of tbe defendant, upon the theory of tbe plaintiff that tbe West Shore train caused tbe accident, it may be remarked preliminarily that the success of tbe plaintiff in this action requires the condemnation of all tbe agencies and precautions which have been so long and so universally employed for tbe prevention of disasters, and for tbe omission of which tbe railroad corporations have so often been found guilty of negligence.

Formerly a statute of tills State imposed upon railroad companies the duty to sound the locomotive bell or whistle on approaching a public crossing, and rendered the corporation liable for damages for a neglect of that duty.

That statute is nullified now, but the Penal Code provides that “ a person acting as engineer driving a locomotive on any railway in this State who fails to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing such bell or bells, or sounding such whistle at intervals until such locomotive and the train to which the locomotive is attached shall have completely crossed such road or street, * * * is guilty of a misdemeanor.” (Penal Code, § 421.)

The negligence of which the plaintiff complains, and which constitutes the foundation Of this action, is the sounding of the locomotive whistle above the bridge and again under the bridge while the plaintiff was passing over it.

The bridge is twenty feet above the railroad track, and neither of the engineers saw the plaintiff or his wagon upon the bridge.

It appears from the evidence that there are two highway grade crossings over the West Shore railroad south of the bridge where the plaintiff was injured; one of those crossings is 1,107 feet and the other 1,343-| feet south.

The first whistle which frightened the horses of the plaintiff was sounded two train lengths north of the bridge, and the second was blown under the bridge, and each was blown about eighty rods north of the grade crossings respectively, being a proper distance from each.

The plaintiff sustained no relation to the defendant which imposed any duty upon it in respect to him. The engineer was not required to signalize his approach to the overhead bridge.

The statute requires him to give warning of his approach to public crossings on the same grade with the railroad. - It so happened in this case that the eighty-rod limit from the two grade crossings was near this overhead bridge, and it would seem to be an exceedingly unjust rule which would impose liability upon the defendant for sounding the whistle of the locomotive at that point when the engineer would be guilty of a crime if he failed to do so. '

There is no rule of law requiring engineers or others in charge of railroad trains to give signals or warnings for other than grade crossings. With wantonness and 'malice eliminated from .the case, and with the obligation imposed by law to give alarms at public grade crossings, there is no principle upon which an accusation of negligence or wrong can be based upon the conduct of the engineer who sounded the alarm in this case.

There are many highways in this State so near to points where the engineers are required to sound the whistle that horses are frightened by the blast and damage ensues, but the railroad corporations incur no liability in such cases; they are simply using their own property in accordance with their legal rights. The public have no easement in common with the companies except at grade crossings. In other places travelers upon highways - must avoid exposure and danger which may result from the sound of moving trains.

If railroad companies were bound to operate their roads with reference to persons having no rights in the locality and to whom they owe no duty, then they can be accused of negligence for every accident resulting from the noise of their trains. In short, the recovery in this action amounts to a condemnation of the precautions which have been devised, required and practiced for the safety of the traveling public since the commencement of railroad operations.

Railroad companies have been frequently condemned for the omission of such precautions, but never for their proper observance.

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

Pratt, J., concurred; Brown, P. J., not sitting.

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