author: Boardman, J.:

text:
    WILLIAM E. KIRKLAND, Respondent, v. WILLIAM B. DINSMORE, President, etc., of The Adams Express Company, Appellant.

      Express company—Receipt of—conditions in—not binding on pa/rty not reading or informed of them.

    When a person, from the nature of the business, the manner in which it is transacted, and all the circumstances surrounding it, knows, or has reason to believe, he is receiving a contract that will bind him, he will be bound whether he reads it or not. But where he may honestly and in good faith suppose he is receiving a check, token, receipt or voucher of some kind, or ticket, as evidence of money paid, he will not be bound by a contract attached thereto, forming no necessary part thereof, to which his attention is not called, and which, through ignorance, haste or inadvertence, he neglects to read or assent to.
    A receipt, given by an express company, for a package of money received for transfer and delivery, which contains certain conditions and limitations of the liability of the company, held, not to bind, by the conditions contained therein, the party sending the package, when it appears that his attention was not called to the conditions, and that he did not know of them, and did not in any way assent to them.
    Appeal from a judgment, rendered for the plaintiff upon the decision of the court.
    On or about March 25th, 1865, a package of $200 in money was delivered to the Adams Express Company as common-carriers, at Wilmington, N. C., by the plaintiff, to be transported to Hudson, N. Y. The agent of the company at Wilmington, upon receiving the package, delivered to the plaintiff a receipt. This receipt was produced upon this argument, under a stipulation of counsel, for the inspection of the court. The following is a copy of such receipt:
    SCHEDULE A.
    Great Eastern, Southern Express
    and
    Western Forwarders.

      Adams Express Gompa/n/y.

    Form 5. Wilmington,
    $200. March 25, 1865.
    Received from -
    One Pa., sealed, and said to contain two hundred doll’s, addressed Mrs. S. Kirkland, Hudson, N. Y.

      Upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and there to deliver the same to other parties to complete the transportation, such delivery to terminate all liability of this company for such package, and also that this company are not to be liable in any manner or to any extent for any loss, damage or detention of such package or its contents, or of any portion thereof, occasioned by the acts of God, or by any person or persons acting or claiming to act in any military or other capacity in hostility to the government of the United States, or occasioned by civil or military authority or by the acts of any armed or other mob or riotous assembly, piracy or the dangers incident to a time of war, nor when occasioned by the dangers of railroad transportation or ocean or river navigation or by fire or steam.
    In no event is this company to be liable for a greater sum than that above mentioned, nor shall it be liable for any such loss unless the claim therefor shall be made in writing at this office within thirty days from this date, in a statement to which this receipt shall be annexed.
    For the Company,
    ROBINSON.
    The part of the receipt after the letters, N. Y., was in very fine and close print, and was partly written over by the signature “ Robinson.”
    The package was lost by the accidental burning and sinking of the steamer Gen. Lyon, at sea, between Wilmington and New York.
    The defense to this action rested solely upon the receipt, which was claimed to express the contract between the parties.
    The plaintiff remained in the express office but a few moments after taking the receipt. While there he inclosed the receipt in a letter, already written to his mother, Sarah Kirkland.
    The court found as facts among other things: “That the plaintiff did not read the receipt when it was delivered to him, nor was his attention called to its conditions or exceptions at that time by the agent of the company, or in any other manner, or by any other person; that he did not become acquainted with its contents until the following fall or winter; that he thought it to be an ordinary receipt for the money, and not a contract; that when the receipt was handed to him, he looked at it to see if the amount was correct; that when he took the receipt, plaintiff supposed it was to show that the company received the money, and that the money was to be sent, and that he could present the receipt and get the money again; that he looked at the receipt to see where the money was to be carried, and to whom it was to be delivered; that he saw it was signed by the company’s agent, and looked at the date also, but that no knowledge of the limitations, exceptions and conditions, printed at the bottom of the receipt, was at the time brought home to the plaintiff; nor did he ever, in any way, assent to such limitations, exceptions and condition.” “ That the amount due at this date (September 30,1871), on the plaintiff’s claim, is $291.”
    As conclusions of law, the court found: 1. “That the special clauses of the receipt exempting the company from liability except as therein stated, were not brought home to the knowledge of the plaintiff, or assented to by him, and cannot be deemed to be agreed upon by the parties.”
    2. “ That the receipt delivered by the company to the plaintiff, did not, under the circumstances detailed in the evidence, constitute an express contract between the parties, according to all its terms as detailed at length in said instrument, limiting the common-law liability of the company as carriers in accordance with, and to the extent specified in, said instrument.”

      “ That the defendant is liable to the plaintiff for the money so lost in its capacity as common-carrier, for the sum of $291, for which the plaintiff is entitled to judgment, besides the costs of this action.”

      Charles M. Da Costa, for the appellants.

      Horace R. Peck, for the respondent.
   Boardman, J.:

The findings of facts accord entirely with the evidence. There is no conflict of evidence. Are the conclusions of law excepted to,correct ? It is conceded, a common-carrier, may limit his liability by special contract. Did the defendant do so in this case ? Had the plaintiff known the contents of the receipt,, and accepted the same with such knowledge, he would have been bound by its terms. In the absence of any proof upon that subject, it would be presumed the plaintiff knew. the contents, and assented to the conditions therein contained. So the courts have repeatedly held.

The Court of Appeals have not yet decided that a person maybe bound by a contract of which he has no knowledge, and to1 which he has given no assent, contained in an express company’s receipt.

• In Belger v. Dinsmore, there was. no evidence-of ignorance of" contents of receipt, and therefore the presumption of knowledge,from acceptance, controlled .the decision. ..Lott, Oh. C.,-puts the" decision upon that express ground.

Fibel v. Livingston is decided upon the authority of Belger v. Dinsmore, but fails to recognize the plain distinction suggested by' Judge Lott, which should have prevented a reversal of the judgment.

In Long v. N. Y. C. R. R. Co., the contents of the receipt' were known and discussed when taken.

In Grace v. Adams Express Co. Colt, J., says:- “It is not claimed that he did not know, when he took it, that it was a shipping contract or bill of lading.” Hence the presumption of knowledge from his acceptance. Keating, J., says- there was evidence “ that the plaintiff assented to those terms.” Such is not true here. In Rice v. Dwight Man. Co., plaintiff received the printed regulations, and was notified that they contained the terms of the contract. In Warhus v. Bowery Savings Bank, plaintiff was una-: ble to read English, but signed the rules and regulations of the, bank. It was held he was bound by his signature, and that he was bound in law to know what he signed.

Hopkins v. Westcott unequivocally sustains the appellant’s view. But it is condemned, as an authority, by the Court of-Appeals, in Blossom v. Dodd, because it ignores the idea of a contract and of assent.

In many cases, the presumption of knowledge of the contents of a written instrument, is conclusive after acceptance. So, a person insured is bound by the terms of his policy, after its acceptance, whether read or not. So, the grantee of a deed may be bound by its conditions and covenants, though he may not have signed or read it, if he has accepted the deed. So of persons knowingly taking shipping contracts and bills of lading from common-carriers. In all these cases the parties know they are making or accepting and agreeing to contracts when they receive the instruments in writing. The law imposes upon them the duty of then determining whether the contract is duly set out, and of correcting it if wrong. If they willfully or negligently omit to read it, they must abide the consequences.

But upon the facts proved and found by the court, this case is analogous to Blossom v. Dodd, The plaintiff supposed he was getting an evidence that he had deposited so much money with ■defendant to be delivered to another—something like a baggage-check, or a token taken of an express company in lieu of a baggage-check, or a mere naked receipt for the package, showing where it was to be carried and to whom delivered—he asked for nothing else; he had no notice that anything else was in it. His attention was not called to the finely printed matter, nor was he informed that he would assent to it by accepting it. Immediately after its receipt he inclosed it in a letter already written, and forwarded it to the party to whom the money was to be delivered.

With proof that the plaintiff supposed it was a naked receipt; that he did not know it was a contract; that he did not read the printed matter, or assent to the conditions therein stated, the court cannot hold the defendant exempt from responsibility without holding the plaintiff responsible upon a contract, of which he never knew, and to which he never assented. The following cases are inconsistent with the defendant’s views and theory. Some of these cases apply only to notices, and are not, therefore, applicable. But the strange consequence follows, from the defendant’s claim, that a notice, directly given to a party, is worthless, while the same facts put in the form of a contract, signed by the carrier and accepted by the party, though in entire ignorance of its character and nature, are binding upon him. The cases of Perkins v. N. Y. C. R. R. Co., Smith v. Same, and Bissell v. Same, are all cases of express contract—two of them in writing, signed by the parties receiving the pass—and can have no application to this case.

The result of this examination leads to this conclusion: When a person, from the nature of the business, the manner in which it is transacted, and all the circumstances surrounding it, knows, or has reason to believe, he is receiving a contract that will bind him, he will be bound whether he reads it or not. But where he may honestly, and in good faith, suppose he is receiving a check, token, receipt or voucher of some kind, or ticket, as evidence of money paid, he will not bp bound by a contract attached thereto, forming no necessary part thereof, to which his attention is not called, and which, through ignorance, haste or inadvertence, he neglects to read or assent to.

The judge having found as facts: “ That the plaintiff did not read the receipt when it was delivered to him, nor was his attention called to its conditions or exceptions at that time by the agent of the company, or in any other manner, or by any other person; that he did not become acquainted with its contents until the following fall or winter; that he thought it to be an ordinary receipt for money, and not a contract; that when the receipt was handed to him, he looked to see if the amount was correct; that when he took the receipt, plaintiff supposed it was to show that the company received the money, and that the money was to be sent, and that he could present the receipt and get the money again ; that he looked at the receipt to see where the money was to be carried, and to whom it was to be delivered; that he saw that it was signed by the company’s agent, and looked at the date also, but that no knowledge of the limitations, exceptions and conditions, printed at the bottom of the receipt, was at the time brought home to the plaintiff, nor did he ever, in any way, assent to such limitations, exceptions and conditionsand such facts being warranted by the evidence, the legal conclusion justly follows, that the defendant was not exempted from liability, upon the ground of an express contract between the parties, creating such exemption.

No regard is had to the element of fraud or imposition, since no-such facts are found, and no evidence is returned, that would seem to justify findings against the defendant in those respects.

The judgment should be affirmed with costs.

Miller, P. J., concurred; Bockes, J., dissented.

Judgment affirmed, with costs.

       Grace v. Adams, 100 Mass., 505; Belger v. Dinsmore, 51 N. Y., 166, 171.

      51 N. Y., 166.

      Id., p. 171.

       64 Barb., 179.

       50 N. Y.,76.

       100 Mass., 505.

      2 Cush., 80.

       21 N. Y., 543.

       6 Blatchford, 64.

      43 N. Y., 264, 268.

        Ante.

      Limburger v. Westcott, 49 Barb., 283; Rawson v. Penn. R. R. Co., 48 N. Y., 212; Blossom v. Dodd, ante; Sunderland v. Westcott, 40 How., 468; Nevins v. Bay State Co., 4 Bosw., 225; Hollister v. Nowlen, 19 Wend., 234.

      24 N. Y., 196.

      24N. Y., 222.

      25N. Y., 442.


source: Caselaw Access Project

author: Boardman, J.: Bockes, J.:

license: Public Domain

text:
    GEORGE HOFFMAN and others, Plaintiffs, v. DANIEL BARRY, Defendant.

      Demu/rre/r—costson appeal from order sustaining or overruling —Distinction between final order and order with leave to plead over.

    On. an appeal from an order sustaining or overruling a demurrer to the entire pleading, when leave to plead over or amend is not granted, the successful party is entitled to full costs under section 307, subdivision 5, of the Code — the order being substantially a judgment.
    When leave is given to amend or to withdraw a demurrer and plead over, -the order is merely interlocutory, and ten dollars costs only are allowed.
    When the order is or becomes final, by reason of the fact that the time given to plead over has expired, so as to determine the rights of the parties, full costs of appeal will be given.
    Motion by defendant to correct order of General Term, so as to allow defendant full costs, on appeal to this court.
    The defendant demurred to the complaint. The demurrer was overruled at Special Term, with leave to defendant to answer on payment of costs of demurrer.
    The defendant appealed to this court, from such order. The order of the Special Term was reversed, with ten dollars costs, and the demurrer was sustained, with leave to the plaintiff to amend, upon paying costs of demurrer, and ten dollars costs of the appeal.

      Mr. Kenyon, for the motion.

      A. Schoonmaker, Jr., opposed.
   Boardman, J.:

An appeal may be taken from an order sustaining or overruling a demurrer to an entire pleading. When such an order, that is, one simply sustaining or overruling the demurrer, is entered, it is substantially a judgment, because thereby the successful party is entitled to judgment thereon.

On appeal from such an order, or more properly the judgment to be entered thereon, the successful party is entitled to full costs, under section 307, subdivision 5.

But when leave is granted to amend a defective pleading, or to withdraw demurrer and plead, it becomes an interlocutory order until the .leave expires, and if an appeal is taken from such an order, the costs to be allowed on appeal are ten dollars only. So, too, if the demurrer is a part of a pleading only, the costs, upon appeal from the order entered thereon, will' be ten dollars only.

When the demurrer is to the whole pleading, and the order gives no leave to plead over, it is a final determination of the rights of the parties. That makes it in substance a judgment under section 245, and not an order as defined in section 400. Hence the allowance of full costs on appeal from, such orders.

An order is the decision of a motion ; a judgment is the decision of. a trial. Whenever the decision which is the subject of an appeal is not final, it is an order, and the appeal will be treated as an appeal from an order in all respects.

There are many other cases reported. In a number of them, the views herein expressed are not sustained. Not all the cases cited are consistent with each other. But I gather from a careful examination, the following conclusions as fairly sustained upon principle and authority:

1. Full costs are given upon an appeal from an order or judgment sustaining or overruling a demurrer to an entire pleading, when no leave is granted to plead anew.

2. Ten dollars costs of appeal are given where the order sustains or overrules a demurrer to a part only of a pleading.

3. The latter sum is also given on appeal, where the order sustains or overrules a demurrer to an entire pleading, but gives leave to plead anew so long as the leave to plead is in force; but if the time to plead anew expires, and judgment is entered for want of a plea, on appeal from such judgment, full costs are allowed.

4. When the order is or becomes final, so as to determine the rights of the parties in that action, full costs of appeal will be given to the prevailing party upon such appeal.

5. While the order is interlocutory, and does not determine the final rights of the parties, it is an order and not a judgment, and, upon appeal, $10 costs only will be allowed.

If these conclusions are correct, the motion of defendant should be denied, with $10 costs to plaintiff.

Bockes, J.:

When, by the order, liberty is given a party to amend or to answer over, the court is at liberty to fix and determine what costs must be paid as a condition - and this is so whether such condition be imposed by the Special Term, or by the General Term on appeal. With this additional remark, I concur with my Brother Boaedmae.

Miller, P. J., concurred.

Motion denied with $10 costs to plaintiff.

       Code, sec. 349, sub. 2.

       10 How., 221, 97; 4 Abb., 90; 3 id. (N. S.), 423 ; 3 Abb., 385; S.C., 13 How., 193 ; 11 Abb. (N. S.), 342; 1 Duer, 633 ; S. C., 8 How., 246; 19 Barb., 196 ; 12 N. Y., 591; 10 Abb. (N. S.), 137 ; 50 N. Y., 689.

      l0 How., 218 ; 18 id., 123 ; 11 Abb., (N. S.), 343; 13 Abb., 304; S. C., 22 How., 60; 4 Sand., 702 ; 8 How., 275.

       15 How., 57; S. C., 6 Duer, 689.


text:
    WILLIAM WITBECK, Appellant, v. WILLIAM P. VAN RENSSELAER and others, Respondents.

      Writ of possession — execution of after its return day —presumption, if fully executed, after, that its execution commenced before the return day.

    In the execution of a writ of possession after the return day, it will be presumed that the sheriff began the execution of the process within the lifetime of the writ.
    Writs of possession and executions for the sale of real estate are analogous, and both may be fully executed after the return day therein named.
    After a judgment and writ of dispossession have been fully though informally executed, the time begins to run within which the redemption may take place.
    Appeal by plaintiff from a judgment, rendered on the decision of the court, dismissing plaintiff’s complaint without costs to either party.

      R. A. Parmenter, for the appellant.

      Matthew Hale and S. Hand, for the respondents.
   Boardman, J.:

Plaintiff was the owner, subject to reserved rents, of certain premises in East Greenbush. By reason of the non-payment of the rent, the defendant, Van Rensselaer, who was the owner of the rents reserved, brought ejectment, and recovered judgment for re-entry. On the 10th of May, 1867, the defendants claim to have taken possession of the premises under a writ of possession, executed by one Griggs, a deputy sheriff. Afterward, the plaintiff resumed possession of the lands, and another writ was issued, and, during the attempt to execute it, Griggs, the deputy, was killed. Soon after, a further writ was applied for, when the plaintiff made a tender of rents due, claiming that the judgment in ejectment had never been executed, and that his redemption was good and effectual ás against the judgment for re-entry, under 2 Revised Statutes, 506, sections 33, 34.

The tender not having been accepted, the plaintiff brings this action in equity to redeem the farm from forfeiture under the right of re-entry. The judge, at Special Term, dismissed the complaint, holding that the tender was sufficient, but not in time, because more than six months had elapsed after said May 10, 1867, before such tender- -was made,' and plaintiff’s equity of redemption was thereby bar-red.

The plaintiff insists that the vitality of the writ of possession was spent prior to the 10th of May, 1867. It was issued to the sheriff on the 17th of January, 1867, and returnable in sixty days . thereafter. The writ was therefore executed (if at all) more than sixty days after it was issued.

In reply, it is suggested that it will be presumed, in the absence of evidence, that the sheriff began the execution of the process within the sixty days. Such is the rule in regard to executions for the collection of money. A levy in time will be presumed, where the . sale takes place after the sixty days, in the absence of any evidence. ■.By analogy the same presumption may and should exist in this case.

But a further and stronger answer is made. In executions for the sale of real estate, no levy is ever made or required, for the reason that the judgment itself constitutes the lien. But the land may be sold on the execution after the return day is passed. So in this case the judgment gives in terms the right of re-entry and ■ possession. The only office of the execution or writ is to enforce ' such right. The lien is not created by a levy; the right to dispossess is not the outgrowth of the writ; but the writ is the visible • authority for doing in fact what the judgment determines as done i in law already. The position of the parties to the writ, is the same ■ before the return day as after. No greater reason can exist why '.this writ- should be executed in whole or in part within the sixty .days, than must arise-on an execution for the sale of real estate, .It would seem, therefore, that the two writs are analogous, and that :both may be fully executed after the return day therein named.

If any doubt can exist- as to the correctness of the foregoing conclusions, another consideration would seem to set such doubt at .rest. ■ . °

The judgment in ejectment determines that the plaintiff in such .action is entitled to re-enter upon the premises, and to have possession thereof. By virtue of such judgment, the plaintiff therein having peacefully obtained possession, he may hold it. “ When a man, having a title to an estate, comes to the possession of it by lawful means, he shall 'be in possession according to his title.” “ The demandant after judgment in a common recovery may enter or take out execution at his election,” where the demand is certain, Again, “the lessor in ejectment may enter after judgment without a writ of possession,” and it is no trespass while the judgment continues in force. If then the judgment and execution had been fully executed, though informally and without thé aid of legal power, on the 10th day of Hay, 1867, such possession set the time to run, within which the redemption must take place. Whether the execution had spent its force or not, it was used for the purpose of giving possession to the plaintiff in ejectment, or his assignee, and the design of the judgment, the execution and the law having been thus fully executed, six months of neglect to redeem thereafter, bars and forecloses all relief or remedy in law or in equity.

It having thus been determined that the writ of assistance in the hands of the sheriff on" the 10th day of Hay, 1867, could be lawfully executed, it remains to be decided whether the plaintiff in the ejectment judgment or his assignee was, on that day, put in the possession of the premises, so as to constitute are-entry within the meaning of the Revised Statutes.

The learned judge who tried the action at Special Term, has found that such possession was given, and re-entry made, upon the tenth day of Hay, under the authority of the sheriff, and by virtue of the writ of assistance in the sheriff’s hands. In the opinion contained in- the case, and accompanying his decision, he has reviewed the evidence touching the nature and extent of possession taken, and justifies the findings of facts by him made. I am content to adopt his opinion in that respect. The evidence, findings and opinions, alike concur in satisfying me that possession was taken, and re-entry was made, as fully and perfectly as practicable or necessary, in order to set the short statute of limitations running.

Though the plaintiff in this action was informed of the fact, he disregarded it, and, at a subsequent time, substituted force in the attempt to regain his illegal possession of these premises. Baffled in his attempt to defy the law and its officers, he at last tenders satisfaction, and invokes a court of equity to save him from forfeitures already incurred.

The two leading points alleged by plaintiff as erroneous, the execution as to its vitality, and the re-entry made thereunder, have been considered and found against the plaintiff. Other questions have been suggested. They are incidental to those already discussed. The disposition of the main questions carries them also. They are so far immaterial, as to avail nothing in the view of the case heretofore taken.

Believing the decision of the learned judge at Special Term a fair result from the evidence, justified by law, and consistent with equity and good conscience, the judgment appealed from should be affirmed, with costs.

Miller, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.

       Hartwell v. Root, 19 J. R., 345; Jackson v. Shafer, 11 id., 513.

       Wood v. Colvin, 5 Hill, 228.

       Taylor ex dem. Atkyns v. Horde, 1 Burrow’s R., 60, 88, 90.

       Ibid.

      Jackson v. Haviland, 13 J. R., 234. See, also, Withers v. Harris, 1 Salk., 258, and Adams on Eject., 339.

       2 R. S., 506, §34.


text:
    MILO MARSH and another, Appellants, v. URI GILBERT and others, Respondents.

      Agent—when prina/pal bound by acts of— Termination of agency—when notice of, should be given.

    The defendants employed one B. to build a dock for them, defendants to furnish the materials therefor. B. having ordered timber of the plaintiffs, they applied to the defendants, and were informed by them that B. had agreed to repair the dock, and that if plaintiffs would furnish the timber, they, the defendants, would pay for it. Timber was furnished by the plaintiffs to B., some of which was used in repairing the dock, and the remainder in building a new dock for the defendants, in pursuance of a second contract entered into by them with B., by which B. was to furnish the materials.
    Neither plaintiffs nor defendants knew that any portion of the timber had been used in the new dock, and defendants had paid B. in full for building it. B. having died insolvent, this action was brought to recover the price of the timber. Held, (1.) That when the defendants authorized B. to buy upon their credit so much timber as he should want for a specific purpose, they made him their agent to determine the amount of lumber needed, and that the plaintiffs were not bound to see that it was used for that purpose, or inform themselves when such purpose was accomplished; (2.) that it was negligence in the defendants not to notify plaintiffs when B.’s agency ceased, or when his requirement for lumber, under the first contract, was filled; and that, as they had put it in B.’s power to do this injury, they must bear the loss.
    Appeal from a judgment, entered upon the report of a referee. The facts are stated in the opinion.

      R. A. Parmenter, for the appellants.

      Martin I. Townsend, for the respondents.
   Boardman, J.:

About April 1, 1872, the defendants employed one Beaulac to repair their dock on Green Island near Troy, and defendants were to furnish the materials therefor. Beaulac called upon plaintiffs, who are lumber dealers at West Troy, to buy the necessary lumber for the defendants. The plaintiffs, having no confidence in Beaulac, who was unworthy of credit, went to see the defendants, and told them what Beaulac wanted and had ordered on their account. Mr. Gilbert, one of the defendants, replied, they (defendants) were going to build a dock or to repair a dock. Beaulac had agreed to do the work, and, if plaintiffs would furnish the timber, the defendants would pay them for it. Plaintiffs said, we will charge the lumber to you (defendants) and Gilbert said, all right. In fact, the contract between defendants and Beaulac at that time, was for the repair of a dock, but the referee’s findings, like the evidence, are contradictory.

In pursuance of such understanding, Beaulac, by the 25th of May, 1872, had ordered lumber and timber for docking, of the plaintiffs, to the value of $552.13, which had been delivered upon defendants’ premises. The repairs of the dock were completed on the thirteenth of April, and all of the timber -that was used for such repairs, was delivered before that date, and was of the value of $48.37. On the first of May, Beaulac made a new contract with defendants, to build about 300 feet of new dock, and furnish the materials. That work was completed about the twenty-fifth of May, and, in such new dock, much of the lumber ordered by Beaulac of plaintiffs, was used.

From the first of April to the twenty-fifth of May, neither plaintiffs nor defendants had any knowledge or suspicion that Beaulac was getting lumber of plaintiffs on defendants’ account and credit without right or authority. Defendants had done nothing to advise plaintiffs of. the termination of Beaulac’s authority, and plaintiffs ■ had done nothing to ascertain the use which was being made by Beaulac of the lumber got of them, and delivered upon defendants’ premises.

On or about the twenty-fifth of May, Beaulac called upon plaintiffs for a bill for defendants. The bill was made out and taken away. Afterward, at Beaulac’s request, the account was made out in two bills, one including only the $48.37, and the other, the remainder of the account, but no reason for such request was assigned.

When plaintiffs and defendants met to settle the account, each party, for the first time, discovered that Beaulac had acted fraudulently and without authority, in continuing to get lumber of plaintiffs on defendants’ account after April thirteenth. The defendants, however, had paid Beaulac in full for building the new dock, and were not owing him anything. They therefore declined to pay anything beyond the $48.37. Plaintiffs brought action for the whole account. Upon the trial, the referee found for plaintiffs only the above sum of $48.37. As defendants had made an offer to allow judgment of $51, judgment for such first sum, with interest and costs before defendants’ offer, was given for the plaintiffs, and the defendants had judgment for their costs after the date of such offer.

The whole case shows that the parties were innocent of any design to do wrong. The whole mischief arises from the wrongful acts of Beaulac, in continuing to purchase lumber and timber of the plaintiffs upon defendants’ credit, after the repairs of the dock were finished, and while building defendants’ new dock. But Beaulac had in the meantime died insolvent. Flow, as between these innocent parties, who shall suffer the loss arising from Beaulac’s unwarranted conduct ?

If the act of Beaulac was within the terms of his authority, the defendants would be liable. If he had an apparent right during the months of April and May, to buy docking timber of plaintiffs, upon the credit of defendants, such authority became real, though in excess of what was intended to be given. It was not incumbent upon the plaintiffs to inquire into the existence of facts outside their own knowledge, and peculiarly within the knowledge of the agent and his principal. The principal is bound by the acts of his agent within the apparent scope of his authority. When the defendants authorized Beaulac to buy upon their credit so much timber as he should want for a specific purpose, they made him their agent to determine the amount of lumber needed. It did not impose upon the plaintiffs the necessity of watching the timber to see that it went to that use, or to inform themselves when the purpose was accomplished. This case was reversed in the Court of Errors, but has repeatedly been adopted and reaffirmed in the Court of Appeals, as good law.

In the case of North River Bank v. Aymar, Judge Cowen says: “ Whenever the very act of the agent ” [in this case the buying lumber of plaintiffs on the defendants’ account] “is authorized by the terms of the power, that is, whenever by comparing the act done by the agent with the words of the power, the act is in itself warranted by the terms used, such act is binding on the constituent as to all persons dealing in good faith with the agent; such persons are not bound to inquire into facts aliunde. The apparent authority is the real authority.”

Evidently the authority given in this case, was to buy lumber on credit of defendants. Whether it was to repair or build a dock, was of no consequence upon the question of credit. No known or ascertainable limit was fixed as to amount. None could be fixed, until the work was well in progress. It was understood that Beaulac was to order the timber and do the work. He only knew how much to order. The plaintiffs had no knowledge, or means of knowing how much would be wanted. It was therefore clear, they could not fix any limit. Neither could defendants, except through Beaulac, determine that fact. It was therefore an apparent necessity that Beaulac should be authorized to order any quantity he should deem necessary. He was then defendants’ agent to buy on credit, without limit as to quantity. In so doing, he acted within the scope of his authority, and the defendants were bound by his acts. There is nothing in the findings of the referee, or in the evidence, seriously conflicting with such a determination.

Upon another familiar rule, defendants ought to be held responsible. Of these innocent parties, one must suffer the loss. He or they should suffer, who has put it in the power of Beaulac to do this injury. The plaintiffs have sold the lumber on the order of Beaulac. They delivered the lumber on defendants’ premises. It was used in building or repairing defendants’ docks. The orders for, and delivery of, lumber were continuous from April third to May twenty-fifth. Ho thing occurred to create a doubt, or excite a suspicion of Beaulac. On the contrary, the defendants knew when Beaulac finished the first job, and settled with him for his labor. They knew that other docking timber was being delivered on their premises. They knew, or might naturally suppose, that plaintiffs could not tell when Beaulac’s agency ceased, or when his requirements for lumber under the first contract were filled. If, then, they desired to protect themselves, it was their duty to notify plaintiffs of the termination of Beaulac’s agency. It was negligence on their part, to leave Beaulac in possession of the power to do this injury. It was all the more so, since they knew Beaulac was unworthy of credit, and that plaintiffs were only dealing with him on defendants’ credit.

By such negligence, as well as by express authority, the defendants have enabled Beaulac to obtain the property involved in this action. If you concede for the moment, that Beaulac acted in excess of his authority, though within the general scope of his employment, the defendants would be responsible to plaintiffs, provided they acted in good faith, and in the honest belief of his authority.

Beaulac was defendants’ agent and in their employ ; they gave and intended to give him authority to buy the kind of property in o suit, upon their credit, of plaintiffs. Ho actual limitation of the amount of such purchases was made known to plaintiffs. In no respect were they cautioned as to their reliance upon Beaulac's orders. The defendants agreed to be responsible for the lumber bought by Beaulac. They were told it would be charged to them, and assented thereto. In the absence of any restriction, why had not the plaintiffs a right to suppose the defendants would notify them of the termination of the authority? Was not such the defendants’ duty if they would avoid responsibility for Beaulac’s conduct? How was it plaintiffs’ duty to watch defendants’ agent, whom defendants had put in power, and whose trustworthiness they had indorsed by their order to let him have what he wanted ? Good faith and justice seem to me to require that the defendants, under the circumstances, should, be held responsible for the whole debt contracted by Beaulac with the plaintiffs.

Believing that the learned referee fell into an error, in rejecting that portion of the accounts which accrued after the 13th of April, 1872, I think the judgment should be reversed and a new trial granted, costs to abide the event.

Miller, P. J., and Bockes, J., concurred.

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

       N. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y., 30,49, 53 ; 2 Kent Com., and No. 6; North River Bank v. Aymar, 3 Hill, 262.

      14 N. Y., 623; 16 id., 125; 25 id., 595; 26 id., 505; Prest. Westfield Bank v. Cornen, 37 N. Y., 320 ; Story on Sales, § 70.

       Clark v. Metrop. Bk., 3 Duer, 241, 248; Smith v. Emp. Ins. Co., 25 Barb., 497; Sandford v. Handy, 23 Wend., 260, 268.


text:
    THE CITY OF TROY, Plaintiff, v. JOHN WINTERS, Defendant.

      Oha/p. 598, 1870— Oily of Troy—power of to prescribe fire limits—committee of common council—powers of— common council cannot delegate powers conferred upon it by charier.

    The city of Troy is authorized by its charter to control the construction of buildings as to materials, to prescribe the limits within which wooden buildings shall not be built, and to impose a penalty not exceeding §500 for a violation of any ordinance.
    The defendant applied to the common council for permission to erect a wooden building within the fire limits. It appears from the minutes of the common council that his application was referred to a committee, two members of which subsequently signed and gave to the defendant a permit to erect the building.

      In an action to recover the penalty for a violation of the fire law, Held, (1.) That it did not appear that the committee had any power except to examine and report to the common council. (2.) That even if it had authority to authorize the erection of the building, that, as the permit was signed by two only, and it did not appear that the other members had been notified of the meeting, it was invalid. (8.) That the common council could not confer such authority upon a committee, as it could not delegate to a committee or to third persons the trust and duty imposed by law upon itself.
    The case of The Mayor of Hudson v. Thorne (7 Paige, 261) distinguished.
    Motion for a new trial after a verdict rendered for the plaintiff upon exceptions ordered to be heard in the first instance at the General Term.
    The defendant' applied to the city of Troy for leave to erect a wooden building in that city. After the application had been referred to a committee of the common council, as is stated .in the opinion, the following paper, signed by two members thereof, was given to the defendant:
    Consent is hereby given to John Winters to erect a two story wooden building, on lot number 24, North Third street,---, said building to have a tin roof, and to be filled in with brick.
    JOHN MARE.
    THOMAS MoMANUS.
    Dated Tboy, Oct. 10, 1871.
    The other facts are stated in the opinion.

      R. A. Parmenter, for the plaintiff.

      John H. Colby, for the respondent.
   Boardman, J.:

It is conceded that defendant erected a wooden building within the fire limits of the city of Troy; that the erection of wooden buildings within such limits was forbidden by an ordinance of said city, at the time of such erection; that the penalty for the violation of such ordinance was $300. The defendant interposes defense as follows: 1st. That the city had no right or authority to pass such ordinances, and

2d. That he had lawful authority from said city to build such dwelling-house.

The authority to pass such ordinances, and to impose the penalty, is conferred by the charter of the city.

Municipal corporations derive their powers from their charters. They can exercise no authority beyond that expressly given, or necessarily implied from the act of incorporation. But no doubt can exist in this case. The legislature has plainly, and in express words, given the plaintiff the power to control the construction of buildings, as to materials; to prescribe the limits within which wooden buildings shall not be built, and to prescribe the penalty, not exceeding $500, for a violation of any ordinance. The ease of Mayor of Hudson v. Thorne, is not an authority in point, for two reasons ; first, because the charter of the city of Hudson did not give the city the power to restrict the erection of wooden buildings within the city; and secondly, because what was said in that respect by the chancellor, was obiter. The case was decided upon the ground, that a court of equity would not, by injunction; enforce the ordinances of a municipal corporation, unless the act sought to be restrained, was a nuisance. Then it would be restrained, because it was a nuisance, and not because it was a violation of a city ordinance.

We conclude, therefore, that the city had the right to pass and enforce the ordinances in question.

No evidence was given, of any consent by the common council of the city to build the house of defendant. All the evidence that could have any tendency to prove such consent, was rejected. If it was not error to reject such evidence, or if such evidence, being admitted, would not show, or tend to show, the necessary consent, the recovery of the plaintiff was correct.

All that the defendant attempted to prove, was a reference of his application to the proper committee with power. The minutes of the common council show a reference to such committee, but it does not thereby appear that the committee had any power in the matter, except that ordinarily possessed to examine and report. These minutes had been examined and approved at a later meeting of the board. So they may be presumed to be correct, and to express correctly the action of the board. In that event, no authority was ever given the defendant. The committee certainly could not give such authority, in the absence of any delegated power. Nor could a power be given to the committee, in excess of the power possessed by the common council. The power attempted to be proved, did not conform to the requirements of the ordinances of the city. By such ordinances, no application could be entertained unless notice of such application, and of the time of making it, had been published in two or more issues of a daily paper, in said city. This had not been done. The common council could not give the defendant the requisite authority, unless three-fourths of all the members concurred. It was not shown, or offered to be shown, that such a number was present, or concurred in any action taken, on defendant’s application.

Besides, if power were given to the committee, it was a power to be exercised by the committee jointly and not severally. So far as appears, there was no meeting of the committee to take action in this matter, nor does it appear that the two, who signed, were together when they signed the consent, or that the third member had notice of any meeting, or had an opportunity to be present. It is a familiar rule, that when an authority is given to several to do an act requiring discretion and judgment, all must meet and consult together, or notice must have been given of the meeting, to such as were absent, to make their action valid.

Again, the common council was the plaintiff’s agent. It could not delegate to a committee, or to third persons, the trust and duty imposed by law upon itself. Whether the defendant should be permitted to build his house of wood, within the fire limits, involved the exercise of discretion and judgment. The rights of others, and the safety of other property, were to be considered, and, if necessary, protected. That discretion and judicial action had been committed, by the legislature, to the common council, as the agent of the city. The common council could not divest itself of its responsibility and clothe another with it.

It results from the foregoing remarks, that if all the evidence offered by the defendant had been admitted, no defense to this action would have been established. It is not, therefore, necessary to consider whether the evidence offered was admissible. Following the same line of reasoning, it would seem that the evidence was properly rejected, and was not admissible for any purpose.

The motion for a new trial must therefore be denied, and judgment ordered for the plaintiff, upon the verdict, with costs.

Bockes, J., concurred.

New trial denied and judgment ordered for plaintiff, with costs.

       Laws of 1816, 139, §§ 3,15, amended in Laws of 1834, pp. 556, 557, §§ 11, 13,13, and Laws of 1870, p, 1384-85, § 3.

       7 Paige, 261.

      Grinell v. Buchanan, 1 Daly, 538, and cases cited; 2 Kent, *633; Com. Bank v. Norton, 1 Hill., 501.


author: Bockes, J.:

text:
    DE FOREST STOCKHAM, Appellant, v. ERIAL D. ALLARD and another, Respondents.

      'Chattel mortgage—rejtting of original instead of copy—when sufficient compliance with statute.

    Where a chattel mortgage has been duly filed in the proper clerk’s office, and, within the time specified in the statute, the original mortgage, with an indorsement thereon exhibiting the interest claimed by the mortgagee in the property, is refiled in said office; held, that this is equivalent to filing “ a true copy,” as required by the statute, and a sufficient compliance with its requirements, to continue the validity of the mortgage as against creditors of the mortgagor, and mortgagees and purchasers in good faith.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    On the 12th of September, 1868, one Kinny was the owner of a horse, for the recovery of which this action was brought. On that day he gave a chattel mortgage on the horse, with other property, to one Ellis, which mortgage was, on the 29th of September, 1868, duly filed in the proper clerk’s office. On the 4th of September, 1869, the mortgagee, Ellis, with the purpose of renewing the mortgage, indorsed upon the original mortgage a statement of the amount then due thereon, and the mortgage was refiled on the same day. Under this mortgage, the defendant Allard, as assignee thereof, and defendant Burton, as purchaser, justify the taking and detention of the horse from the plaintiff, who claimed the same as purchaser under a subsequent chattel mortgage given by Kinny, June 24, 1870.

      Isaac D. Garfield, for the appellant.

      L. B. Kern, for the respondents.
   Bockes, J.:

It is not claimed that the statements of the mortgagee, indorsed on the mortgage, exhibiting his interest in the property, were insufficient, either in form or substance, to secure a continuance of its validity after the expiration of the year, against the creditors of the mortgagee, subsequent purchasers and mortgagees in good faith; nor that the refiling was not in due time; but it is insisted that the refiling of the original with such statement indorsed, was not a compliance with the law, which required a true copy ” with such statement to be again filed.

The design of this law is plain and unmistakable. It had in view the protection of creditors, mortgageesi;and purchasers in good-faith. Its object is well stated by Judge Grover, in Ely v. Carnley. He remarks as follows : “.The object of the act was to enable creditors and others to ascertain whether personal property was owned by the possessor, and the extent of his interest in it. This was deemed necessary for the protection of creditors. It is important for creditors to know the amount of liens as well as their existence. Hence the act requires the filing of the instrument or of a true copy. A compliance with the act will give the creditors full information as to the property mortgaged, the amount of the debt and condition of the mortgage, and to what extent the property can be made available for the payment of his debt. When the paper filed fails to accomplish these purposes, it falls short of the requirement of the law.” How, may it not be added, that the requirements of the law are complied with, when the paper filed does meet and answer all these purposes ? The original mortgage refilled in proper place and in due time, with a statement exhibiting the interest of the mortgagee in the property, good in form and substance, would convey all the information possible to be desired from the refiling of a copy instead. With a view to notice and information of the contents, the original is. equal to a copy. If, then, the performance of an act which fully answers all the purposes of a law, shall be deemed and held, to be a compliance with its requirements, the validity of the mortgage in this case was continued by its refiling in due time, with the proper statement of the interest of the' mortgagee in the property. The rule above indicated, was held to be a sound one, in Patterson v. Gillies; also in Dillingham v. Bolt; and it is supported by reason and justice. Perhaps a peculiarity in the language of the act, should also be adverted to. It requires the paper to be “ again filed.” This seems to imply, in literal significance, a refiling—a second filing of the same paper—that is, the filing again, of the paper previously filed. It is supposed that if a copy be filed, instead of the original, in the first instance, as the law permits, then the refiling, or again filing of such copy, with the necessary statement by the mortgagee, would answer the requirement of the law. If a refiling of the copy would be good, to continue the lien, there can be no reason why the refiling of the original should not secure the same result. In Fitch v. Humphrey, the original was filed in the clerk’s office, and was “ again filed,” as in the case at bar; but the case turned on the insufficiency of the statement of the mortgagee’s interest in the property. The point here under discussion, was not raised, but if fatal to the validity of the mortgage as against creditors, mortgagees and purchasers in good faith, as is now urged, it is not a little remarkable, that it was not intimated or adverted to in that case, either by court or counsel.

On the whole, I am clearly of the opinion, that the refiling of the original mortgage was equivalent to again filing a true copy, for every possible object of the law; and that such refiling, with the necessary statement as to the mortgagee’s interest in the property, in due time and in proper place, was a compliance with the requirement of the act, and continued the validity of the mortgage as against creditors of the mortgagor, and mortgagees and purchasers in good faith. The referee was therefore right in his decision, and the judgment should be affirmed, with costs.

Present—Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.

      Laws 1833, chap. 279, sec. 3, page 403 ; 2 R. S., 136, sec. 11.

      19N. Y., 496, 498.

       64 Barb., 568.

       37 N. Y., 198.

         Meech. v Patchin, 14 N. Y., 71.

       1 Denio, 163.


author: Miller, P. J.:

text:
    THE PEOPLE ex rel. CHAUNCEY KILMER, JOSEPH G. COOKE and ROBERT GILCHRIST v. PATRICK McDONALD, Town Clerk of Saratoga Springs, and A. J. CHERRYTREE, DAVID T. LAMB and AUSTIN L. REYNOLDS, Commissioners of Appraisal of Damages, etc., on Widening and Extending Union Avenue, in the Village of Saratoga Springs.

      Chap. 628,1870; chap. 500, 1872; chap. 256, 1874— Certiorari—cannot he granjed hy judge at chambers—may he quashed after retwm.

    Chapter 628, Laws of 1870, and the acts amending the same in 1872, require the benefits resulting from the improvements thereby authorized, to he assessed exclusively upon real estate, and not.upon the persons of the owners. A failure of the commissioners of appraisal to comply with the statute in this respect is fatal to the whole proceeding. (Per Miller, P. J.)
    The right of the relators to a judicial determination as to the validity of the proceeding of the commissioners of appraisal, cannot he affected by an act of the legislature, confirming the acts of the commissioners, passed subsequent to the . issuing of a writ of certiorari.

      People v. Canal Board (7 Lans., 220) followed.
    A common law certiorari must he applied for and granted in open court, either at Special or General Term, and cannot be allowed hy a judge at chambers. Gardner v. Commissioners of Warren (10 How., 181); People v. Supervisors (15 Wend., 198) followed.
    The objection that the writ was improperly awarded, may he considered upon a return and hearing upon the merits.
    Allowing a motion to be made for an amended return without moving to quash a writ, is not a waiver of the right to make such motion.
    This case comes on to be heard on the return of the defendants to a common law writ of certiorari, awarded by a judge out of court, requiring them to return the proceedings of said commissioners in appraising the damages, and assessing the benefits resulting from the laying out, widening and extending Union avenue, in" the village of Saratoga Springs, from Nelson street to Circular street, under chapter 623, of the Laws of 1870, page 1442, entitled “An act to provide for laying out and improving roads and avenues in the village and town of Saratoga,” and the acts aménding the same, passed in 1872.
    The town clerk has made a return to the writ, in which he gives the final report of the commissioners of appraisal, on file in his office, which report was filed by him on the 13th day of June, 1873. The other defendants, the commissioners of appraisal, have also made an original and amended return in the case.
    In their final report, it appears that the commissioners of appraisal have assessed for benefits, and imposed taxes upon the relators for the widening, etc., of said Union avenue, as follows: Upon Cooke, $900; upon Gilchrist, $700; upon Kilmer, $5,000; and both the return of the commissioners of appraisal and their final report, alike show that the assessment purports to have been made, and the tax imposed, under said act of 1870. The commissioners of appraisal did not describe any real estate in their report, neither that which they assessed for benefits, nor any other. It did not appear from their report, for what parcel of land, or for how much land, they had assessed either of the relators, or any other person named therein as an owner.

      A. Pond, for the relators.

      L. B. Pike & P. H. Cowen, for the respondents.

       Laws of 1870, p. 1442, and the several acts amending the same in 1872.

   Miller, P. J.:

It is claimed by the counsel for the relators that the commissioners of appraisal, appointed in pursuance of the act of 1870, have failed to comply with the requirements of said act, and, for that reason, the taxes imposed upon the relators are illegal and should be set aside. By the ninth section of the act in question, in case the commissioners of construction disagree with the owners, provision is made for the appointment of commissioners of appraisal. These last named commissioners are to appraise all damages and to assess all resulting benefits, as provided in sections 10 and 11; and by the twelfth section, in making estimates of damages to landholders, whose lands are taken, they are to take into consideration any benefits. They are also to make awards in writing, and, upon notice, to meet and review the assessments made; and are authorized, at their second meeting, to hear additional testimony, as they may think proper, and any reasons for or against the awards of damages or assessments for benefits.

By section 13, it is provided that, “Whenever the commissioners of appraisal shall have thus reviewed their first awards and assessments, they shall make their determination in writing, stating the quantity of land and the value of any property taken for such avenues, with the names of the persons and the amount of the damages awarded, and also a general description of all lands and property assessed for benefits, with the names of the owners and the amount assessed against each.”

It is also provided by section 1, chapter 500, Laws of 1872, page 1167, which amends the act of 1870, among other things, that the resulting benefits to be assessed and appraised in carrying out the provisions of this act, shall be assessed, and resulting benefits appraised upon the real property embraced within certain boundaries, which are named. These provisions establish, beyond question, that the assessments were to be made exclusively upon real estate, and not upon the persons of the owners; and the requirement in the thirteenth section of the act of 1870 was, no doubt, intended to enable the owners to ascertain whether the appraisers did appraise the resulting benefits to all the lands within the territory named, and whether the assessment was made equally and fairly upon all of said lands, and upon just, sound and equitable principles. The provision, therefore, requiring a description of all the lands assessed, was vital and material, and an essential part of the report.

A substantial compliance with the statute in the measures preliminary to the taxation of persons and property, in all matters which are of the substance of the procedure, and designed for the protection of the tax-payers, is a condition precedent to the legality and validity of the tax. Here was an entire failure to comply with the statute, and, as the report was made out and presented, it was impossible to ascertain for what particular parcel of land, or for what quantity the relators were assessed. This omission was erroneous, in contravention of the statute, and is, I think, fatal to the validity of the whole proceeding. The relators’ counsel claims that the act of 1874 (chapter 256), which is entitled “An act to amend,” etc., the act of 1870, before cited, and which provides, among other things, to confirm the acts of the commissi oners, disposes of the certiorari in this case. Several objections are urged to this position, and, without passing upon all of them, it is sufficient to say that, even if it be valid, it cannot affect the right of the relators to a judicial determination as to the validity of the proceedings, inasmuch as said act was passed since the writ of certiorari in this case was issued.

I think that this is a proper case for a writ of certiorari to review the proceedings of the commissioners of appraisal. I am also inclined to think that the certiorari was improperly awarded by a judge out of court. As I understand, the authorities hold that a common law certiorari cannot be allowed by a judge at chambers, and must be applied for and granted in open court, either at Special or General Term.

The objection that the certiorari was improperly awarded, may be considered upon a return and hearing upon the merits. It is claimed that this objection was waived, because the respondents’ counsel allowed a motion to be made for an amended return without moving to quash. I do not understand that this is a waiver, and, as a motion to quash the writ cannot be sustained until after a return, I do not see any sufficient reason why the objection is not available, after an amended return has been granted, within the decisions.

There are some other questions raised, but their examination is unnecessary. As the case stands, there is no escape from quashing the writ, and it must be so ordered, with ten dollars costs.

Boardman, J., concurred, on the ground that the writ was granted by a judge out of court, and without notice.

Writ quashed, with ten dollars costs.

       Westfall v. Preston, 49 N. Y., 349.

       People v. Canal Board, 7 Lansing, 220.

       Gardner v. Commissioners of Warren, 10 How., 181; People v. Supervisors of Allegany, 15 Wend., 198.

         People v. Mayor of N. Y., 2 Hill, 12; Same v. Supervisors of Allegany, 15 Wend., 198, 206; Same v. Supervisors of Queens, 1 Hill, 195, 200.

       Clark v. Lawrence, 1 Cow., 48; S. and W. R. R. Co. v. McCoy, 5 How. Pr., 378

         See 2 Hill, 9; 21 Barb., 664, 665; 19 N. Y., 531, 532.


text:
    MYNDERT R. VEEDER, Respondent, v. WILLIAM COOLEY, Appellant.

      Complaint—amendment of—When recovery on contract sustained in action sounding in tort— Evidence' to vary written instrument.

    Where the allegations of a complaint are sufficiently sustained by the testimony, if a cause of action ex contractu be otherwise set forth, it is not enough to authorize a nonsuit that the complaint contains an allegation suited to an action ex delicto.

    Where a motion for a nonsuit is not made upon the distinct ground that the action sounds in tort, and a contract is proved, a new trial will not be granted on that ground, as, if’ it had been pointed out, an amendment might have been allowed which would have cured the defect.
    Evidence that it was verbally agreed, at the time a written contract was entered into for the cutting of 100,000 feet of timber, that the defendant might cut more than that amount, held, to have been properly excluded.
    Evidence of a notice from a party who has verbally agreed to purchase a farm, to a person cutting timber thereon under a contract, not to cut in excess of his contract, held admissible; as, even if the agreement to sell was still incomplete, the notice inured to the benefit of the real party in interest; and as the party giving the notice subsequently became the owner, he was entitled to any advantage arising from it.
    Appeal from a jtidgment, entered on the report of a referee in .favor of plaintiff. ■
    The action was brought for cutting and carrying away timber from a farm of land, in Chenango county, which, prior to the 1st of April, 1869, was owned by one Perry Rogers, and, on that day, was conveyed to the plaintiff. On the 10th of February, 1869, Rogers made a contract with the defendant, by which he sold him 100,000 feet of hemlock timber, at six dollars per thousand, to be cut near a certain line, which was designated. On the fifteenth of March, while the defendant was cutting, Rogers agreed to sell the farm to the plaintiff; and, on the first of April the deed was delivered. The sale was made subject to the right of the defendant to cut and remove the 100,000 feet; and it was agreed that the plaintiff, in the event of the defendant cutting more, was to have the benefit of it; and Rogers assigned all claims and demands for the same to the plaintiff, which assignment bears date April 1, 1869. The defendant having cut and carried away a much larger quantity of timber than he had purchased, the plaintiff brought this action to recover for the same. The complaint contained two counts; the first alleged that the defendant cut down, carried away, and converted a large number of trees standing on the land of Perry P. Rogers, and that Perry P. Rogers, for a valuable consideration, assigned all his right of action and claim against the defendant by reason thereof to this plaintiff; the second claimed to recover damages for an unlawful entry, and cutting and carrying away the timber. The cause was referred; and the referee found, among other things, that the defendant cut down and carried away 37,345 feet of timber, and the plaintiff was entitled to recover $336.10, with interest, amounting to $404.06, besides costs. Exceptions were taken to the referee’s report and the several rulings made upon the trial. A judgment was entered, and the defendant appealed.

      Isaac S. Newton, for the appellant.

      O. M. Hungerford, for the respondent.
   Miller, P. J.:

The principal point urged by the defendant’s counsel against the decision of the referee, is, that the action was for a tort, and, as no wrongful taking or conversion of the property was shown, the referee was in error. Even admitting that the defendant had a right to enter upon the lands of Rogers, under the license from and contract with him, and was originally lawfully there, I am of the opinion that he was liable for what he did beyond the terms of his contract, under the complaint in this action. The first count of the complaint avers that the defendant entered upon the lands and premises, then the property of Rogers, and cut down and carried away and converted a large number of trees there growing, without the right, or consent of Rogers, ’by means whereof he has sustained damages, and that the right of action was assigned to the plaintiff. The allegation that the defendant converted the trees without the right and consent of Rogers, while it may constitute part of a cause of action in tort, in connection with the remaining portion of the count referred to, may, I think, be considered as a statement of the facts constituting the cause of action, without characterizing it as an action sounding in tort; and while the statement is not as definite and formal as it might have been, yet, under the liberal rules of pleading which are established by the Code, I cannot forego the conclusion, that, as the proof warranted it, this count may be considered as amended to meet the facts proved upon the trial, which, I think, clearly established a cause of action against the defendant. As the complaint was sufficiently sustained by the testimony, it was not enough to authorize a nonsuit, if a cause of action was otherwise set forth, that it contained an allegation suited to an action ex delicto, or that the plaintiff stated too much. The courts have gone to a great extent in sustaining pleadings, on a trial, even although they were extremely informal and defective, and sometimes contained averments which rendered it questionable what form of action was really intended. Especially have they been liberal in exercising the plenary power of amendment, where defects existed which could be easily remedied in this manner, without proving injurious to the rights of parties. The motion for a nonsuit was not made upon the distinct ground that the action sounded in tort, and a contract was proved. Had the defendant put his finger upon any such defect, if it really existed, for aught that appears, an amendment may have been made to meet the difficulty. What could have then been done, may now be considered as done, and therefore, it cannot now fairly be claimed that while the action was for tort, the plaintiff recovered upon a contract, or a different cause of action.

If I am right in assuming that the action could be sustained upon the grounds stated, then it is not important to consider whether the selling of the farm, and the recognition in the mortgage that the claim for the excess of timber cut was assigned as a debt, was a waiver of an action for a tort. And for the same reason the referee properly refused to find in accordance with the request of the defendant’s counsel, that Rogers could not and did not assign the debt and retain the tort, if any, as it was entirely immaterial, and could not affect the determination of the whole ease.

The finding of the referee that the defendant cut down and carried away the excess of timber, for which the recovery was had, between the 15th and 30th of April, 1869, except some drawn in 1870, and some left and wasted on the field, was excepted to as contrary to the proof. It is inconsistent with the previous findings, that on the 15th of March, 1869, the plaintiff notified and requested the defendant, by informing his agent, who conveyed the information to the defendant in person, not to take over 100,000 feet of timber, and that any excess, beyond this, belonged to and should be paid to the plaintiff, and that the defendant by his agents and servants, continued cutting and drawing timber from the farm ten or twelve days after this, and removed the excess for which a recovery was had. It was evidently a clerical mistake in inserting April instead of March; and, as upon the whole, the referee’s report can be sustained, is no ground for a new trial.

A careful examination of the various requests made to find facts, and the refusals to do so by the referee, discloses no error which is fatal to the judgment rendered.

The evidence offered, to prove that at the time the contract was made with Rogers it was talked between him and the defendant that he might cut over the 100,000 feet, was properly rejected. It was parol evidence to vary a written contract, and inconsistent with the contract made, and on no principle admissible.

The testimony showing directions from the plaintiff to the defendant’s foreman not to cut any more timber than was provided for by the contract, and that the foreman informed the defendant of such notice, was entirely competent and properly received. The plaintiff, at the time, had an arrangement or understanding with Rogers, which was consummated by a conveyance of the farm on the first of April following, by Rogers to him. He was, therefore, interested; and, although at the time he had no conveyance of the legal title, had a right to direct as to any cutting beyond what was within the terms of the contract. It was a notice from plaintiff to the defendant, who was to become the owner, quite as effectual as if it had been given by the owner himself. It is no answer to say that the plaintiff had no legal rights in the land, and that the refusal to obey his directions was not therefore competent evidence; for, even if the contract was still incomplete between the plaintiff and Rogers, the notice would, I think, inure to the benefit of the real party in interest; and, as the plaintiff subsequently became the assignee of Rogers, he was entitled to any advantage which it conferred. If the action could be upheld for the wrongful cutting and conversion, then it was competent to show the notice, and, if otherwise it can be maintained, it was evidence relating to the transaction, which was clearly admissible. It might have a bearing upon the amount of damages to be recovered, and affect the value of the timber which was cut without authority or license after the notice had been given.

It was also competent to prove by whose direction, and the manner in which certain portions of the timber was cut, as a part of the transaction, if for no other purpose.

The assignment to the plaintiff covered and included all claims, and the referee allowed only damages for the timber by the foot, without regard to the manner in which it was cut. The evidence, therefore, could not have injured the defendant.

No other question is raised which requires comment, and the judgment must be affirmed, with costs.

Present—Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.

       Austin v. Rawdon, 44 N. Y., 63.


text:
    ELLEN R. SLOCUM, Respondent, v. RICHARD ENGLISH and CALVIN ENGLISH, Appellants.

      Beal estate—when surrogate may direct the sale of—within what time proceedings must he instituted.

    To authorize the surrogate to direct the sale of real estate in payment of the debts of the deceased, the petition must be filed within three years after the granting of letters of administration upon his estate.
    Where letters of administration áre granted by the surrogate, and subsequently the administrators first appointed are removed and others appointed in their place, the petition must be filed within three years after the issuing of the first letters of administration.
    Appeal from a judgment rendered upon a trial at the Saratoga County Circuit, in June, 1873, before Mr. Justice Bookes, without a jury.

      The action was ejectment, and the question to be determined was the validity of certain proceedings had before the surrogate of Saratoga county, for the sale of the real estate of an intestate, for the payment of debts, by virtue of which the defendants claimed title.
    The plaintiff showed title as one of the heirs-at-law of Harvey Granger, deceased, who died August 1, 1846, seized in fee of the premises in question. It appeared that letters of administration were granted on the 2d of September, 1846; that the administrators Avere afterward removed, and other administrators were appointed da bonis non of said estate; that on the 2d of April, 1852, a creditor of the estate, upon application to the surrogate, obtained an order to show cause why the administrators should not be required to mortgage, lease or sell the real estate for the payment of debts. This order was served, and a further order obtained for all persons to appear, etc., on the 31st of May, 1852. Ho proof of service was made, and no further proceedings were had under this order. That, on the 2d of September, 1852, the surrogate revoked letters to John Granger,which left his associate, Dillingham, sole administrator. On the 3d of March, 1853, the administrator applied to sell the real estate, obtained the necessary order, and conveyed to one, under whom the defendant obtained title. The judge found in favor of the plaintiff. The defendants excepted, and, judgment having been entered, appealed.

      Paul F. Cooper, for the appellants.

      E. F. Bullard, for the respondent.
   Miller, P. J.:

It is quite plain, I think, that the sale, by the administrator, of the premises in controversy, was void, because the petition was not filed within three years, as required by the statute, after the granting of letters of administration, and that no title was acquired under the deed executed by him to the purchaser at the sale. The defendants’ counsel seeks to avoid the effect of the statute cited, by insisting that the petition by the administrator was but a continuation of the proceedings which had been previously instituted on behalf of a creditor, and not an original or new application within the provision of the statute cited.

It appears that a petition was presented hy a creditor for an order to show cause why the administrators should not mortgage, sell, or lease the real estate of the deceased for the payment of debts, and an order to show cause, made returnable at a day named. Upon the return day the surrogate made an order declaring that no cause had been shown, and directing all persons interested to appear at a future day to show cause, etc. There was no proof that said order was ever served, and no proceedings or adjournment- or further proceedings were had on said petition. Subsequently, the administrator filed a petition, and an order to show cause was made, and a sale directed to be made, which took place, and an order wTas made for the distribution of the proceeds. No reference is made in any portion of the proceedings to the previous proceedings by the creditor, and the record shows that it was a separate and distinct application, in no way. connected with, and entirely independent of, that which had previously been instituted by the creditor.

The proceeding by a creditor to compel an administrator to sell the real estate of the intestate, is entirely different and distinct, and is not perfected until the order for a sale is made, which should fully recite all that has been done, and show that the creditor was the moving party throughout. No petition is required from the administrator, and if he makes and presents one, independent of the proceedings had, and without reference to what had already been done, it cannot be considered as a part of the old proceeding. It is, perhaps, sufficient to say, in this case, that the administrator did not, by his petition, in any way act as if the proceeding was a part of what had already been done. He, as well as the surrogate, regarded it as new and distinct throughout, and there is no rule of law which could make a connection between the two, as none such exists. The old proceeding was ended and a new one commenced, and no attempt was made to conduct the latter otherwise than as an original proceeding. Even although the statute may have intended that the administrator could step in after the creditor had commenced, it appears that this was not done. As no recitals of previous proceedings were made in the petition or the orders, it is not necessary to consider what effect they might have had if they had been inserted. It is enough that the papers show an independent proceeding by the administrator, to establish that it had nothing to do with any other; and I think no presumption can be indulged in favor of their validity as the case stands. Nor does chapter 82 of the act of 1850 aid the defendants. It is not a mere irregularity, or omission, or defect in the papers which invalidates the proceedings, but a jurisdictional defect which strikes at its foundation. It is a failure to institute the proceedings within the time required by law, which is apparent upon their face, and in direct violation of the statute.

The counsel for the defendants insists that the sale was valid within the meaning of the statute. The statute provides that, after the executors or administrators shall have made and filed an inventory according to law,” * * * “ they may, at any time within three years after the granting of their letters,” etc., apply for authority to mortgage, etc.; and it is claimed that this refers to the time when the last letters were granted, and not to the first. In this case, the first administrators were removed and others appointed, and hence, it is contended that, as they applied within the three years, it was in season. I am inclined to think that this position cannot be upheld. The evident intention of the statute was that the sale should be applied for within three years after executors or administrators had taken out letters, and to compel them or their successors to institute the proceeding within this period, so that the estate might be closed up, and the title to real estate acquired from heirs-at-law, or by devise, might not be disturbed after the time provided for. If it were otherwise, then the time might be extended beyond reasonable limits, by the death or removal of executors or administrators and the appointment or others in their places. The words “ their letters testamentary or of administration,” have reference, I think, then, to such letters as may be first issued, and are not designed to refer to the successor or successors of those who are first appointed executors or administrators.

The statute means all executors or administrators who may take upon themselves, in the first instance, the duties of these offices, as a preliminary step to closing up an estate, and when another is appointed in the place of one who is deceased, or has been removed, he takes the place of his predecessor, with the estate and all proceedings remaining the same as if he had been originally appointed. It may also be observed that it would be inconsistent with the object of the statute to allow every new executor or administrator three years’ further and additional time to make an application for the sale of real estate, when a creditor can do so at any time after an accounting has been had.

The fact that no inventory had been filed prior to the filing of the petition, is also, I think, a jurisdictional defect, and sufficiently appears from the proceedings.

As I find no error upon the trial, I am of the opinion that the judgment at the circuit must be affirmed with costs.

Present — Miller, P. J., and Boardman, J.

Judgment affirmed, with costs.

      2 R. S., 100, § 1.

      4 R.S. (Edmonds’ ed.), 499, §78.


author: Learned, J.: Bockes, J.:

text:
    FREDERICK O. NORTON, Respondent, v. JACOB L. SNYDER and others, APPELLANTS.

      Lease — covenant of renewal—when grantee of lessor not hound hy a renewal hy his grantor.

    One S., the owner of certain land upon which there was a quarry, leased the right to quarry and remove stone therefrom for twenty-five years, and agreed to renew the said lease for the term of twelve years, the consideration for such renewal to be determined hy appraisers. Prior to the expiration of the twenty-five years, S. sold a portion of such land to the plaintiff excepting and reserving the rights of the owners of said lease. Held, that upon the expiration of the twenty-five years, the right to renew the lease, in so far as it related to the stone upon the land sold to the plaintiff, was in him and not in S., and that a renewal of-the lease hy S. did not affect the plaintiff’s land.
    Appeal from an order made at Special Term by Mr. Justice Learned, granting an injunction against the defendants, restraining them from doing' certain acts upon premises claimed by the plaintiff.

      The complaint charges that the plaintiff is the owner of a certain ten-acre lot in Rosendale, Ulster county, containing cement stone; and that the defendants have entered upon said lot, and are attempting to carry away such cement stone.
    The defendants deny that the plaintiff is the owner of) or in any manner entitled to, the cement stone in and npon the premises described; and they deny that they have quarried, carried off, or attempted to quarry or carry off, any cement stone from the plaintiff ’s lot. The instruments and conveyances under which the respective parties claim their rights to the cement stone in question, are described in the opinion of Mr. Justice Learned, delivered at Special Term, upon granting the order for the injunction. The following is his opinion:
   Learned, J.:

The alleged trespasses are not such as would in an ordinary case call for an injunction. But the question involved is the right to a quarry, and therefore if the plaintiff owns the quarry, he should be protected by this remedy.

The rights of both parties come from Silas Snyder, who is assumed to have owned the land and the quarry on it, on the 2d of October, 1848. On that day he executed an indenture to John H. Stephens, recorded October 4,1848. By this, in consideration of $6,000, he bargained, sold, demised and leased to Stephens, his heirs and assigns, for the term, and upon the conditions hereinafter mentioned, the exclusive right and privilege in all the cement stone in or on” certain premises of 170 acres (including the ten acres in question) “ and for the purposes hereinafter stated.” There is then a covenant by Snyder for himself, his heirs and assigns, that Stephens, his heirs and assigns, may at all times quarry and remove any cement stone on the premises, and may receive the full benefit of quarrying, in as full a manner as Snyder might do, had not this lease been made,” for the term of twenty-five years from date.

And in case Stephens, his heirs and assigns, shall not, within said twenty-five years, quarry and remove all the cement stone, Snyder binds himself, his heirs and assigns, to execute to Stephens, his heirs and assigns, a further lease of the term, of twelve years from the expiration of the twenty-five, “for the purposes above mentioned.” The consideration to be paid for said last mentioned privilege, is to he determined as follows: The parties or their legal representatives are to submit the subject to two impartial men, each choosing one, who shall determine what amount of money, and when and how to be paid, as a fair consideration for the same; with a provision for an umpire if they disagree.

The consideration of $6,000 for this first indenture was to be paid as follows: $4,000 in cash, and the balance in about a year; with an agreement that the lease should he void on non-payment for ten days.

John H. Stephens assigned his rights under this instrument to the Newark and Rosendale Lime and Cement Company, by deed, dated October 25, 1848, and acknowledged the same day. That company assigned their rights to Jacob L. Snyder, by deed, dated October 5, 1872, and acknowledged January 5, 1873.

An indenture dated October 5,1872, and acknowledged January 11, 1873, was thereupon made between Silas Snyder and Jacob L. Snyder, reciting the indenture to Stephens, and giving to Jacob L. Snyder the same rights for twelve years from October 2, 1872, in the 170 acres. The consideration of this indenture is $500, cash, and one-half of the net proceeds of the cement. Tinder this, the defendants claim.

Silas Snyder, by full covenant deed, conveyed, October 31, 1857, the ten acres in dispute (part of the 170) to James T. Anderson and William Anderson, excepting and reserving for the Newark Cement Company the privilege of quarrying and conveying off the cement stone which they hold by virtue of a certain lease for the same.”.

(The Newark Cement Company is the Newark and Rosendale Lime and Cement Company.)

James T. Anderson conveyed by full covenant to William Anderson, April 7, 1866, with same exceptions. William T. Anderson conveyed by full covenant to Henry C. Carman, May 2, 1872, with same exceptions. Henry O. Carman quit-claimed to the plaintiff, May 13, 1872. And this is the plaintiff’s title to the ten acres in dispute.

The question is as to the effect of the original indenture between Snyder and Stephens, and of the subsequent indenture between Snyder and Snyder.

It is plain that, as to these ten acres, the plaintiff has all the rights which Silas Snyder had, after his execution of the indenture to Stephens. The reservation and exception in the deed to Anderson, were intended to relieve the grantor from any liability under his covenants of warranty, etc., on account of the Stephens indenture, then held by the company. That is the only meaning of that reservation or exception. It reserved nothing for the grantor, but only had this effect: that the grantee took the premises, subject to the lease, as it is called in that instrument. This seems to me to be the plain meaning of the language, and to be the only construction that can be given to it. Excepting and reserving for the Newark Cement Company the privilege which they hold by a certain lease.” It was not a reservation of anything for the grantor; but it was only a necessary precaution, lest he should warrant absolutely, and thus be made liable on his covenants.

The defendants do not claim that the title to the cement passed to Stephens by the first indenture. But they claim that the exception in the deed to Anderson had the effect of making Silas Snyder owner of the cement, notwithstanding his deed. I do not think that is the true construction. The thing reserved is a “pri/oilegeP It is a thing held by the Newark Company, and it is reserved for them.

The indenture between Snyder and Stephens gave a license for twenty-four years, irrevocable. It did not purport to convey the title to the cement stone. It contemplated the possibility that all of the stone might not be removed in twenty-four years, and, in that case, agreed to give a further license for twelve years. It would certainly be possible that all the stone should not be removed, even at the end of the second period. The language is quite accurate. It sells the exclusive right and privilege in the cement stone, for the purpose of quarrying and removing it for the term of twenty-four years.

Stephens and his assigns had also a right to a further license; and this license, Snyder, for himself his heirs and assigns, covenanted to give. If this was a personal covenant only, then, if Silas Snyder had put it out of his power to perform it, he would be personally liable; and that would he the only right of the owner of the' original indenture. But if the covenant runs with the land, which is the most equitable view, and the most favorable to the defendant, then it must be the present owners of the land- who are to execute the continuing license for twelve years.

If this were a case of the lease at a fixed annual rent, with a right of renewal in the lessee at the same rent, then the only matter of consequence to the owner of the remainder would be, that the rent should he paid to him. But this case is very different.- The owner and the licensee are each to choose a man who shall determine what amount of money, when and how to be paid for the continuation of the license. This is a matter of the utmost importance to the owner.

Assuming then that the plaintiff, as to his ten acres, may he compelled to execute, on some terms and in some way, a license to Jacob L. Snyder to quarry for twelve years, yet he clearly has a right to the appointment, or to a share in the appointment of the parties, who shall determine the compensation. For, as it seems to me, that compensation, so far as affects the ten acres, belongs to the plaintiff, and not to Silas Snyder. And the wrong is seen in the very indenture executed between Silas Snyder and Jacob L. Snyder. That provides for compensation, viz., $500 and one-half the net proceeds of the cement, to he paid to Silas Snyder, and this, of course, is for the cement partly on these ten acres (among the 170), as to which he has had no right or interest whatever since 1857.

It is not necessary for me to decide that the covenant does, in fact, run with the land. I assume, as the view most favorable to the defendant, that it does so run, or that it is in some way binding upon the plaintiff. Nor is it necessary to decide in what manner the compensation for the renewal of the privilege is to be adjusted with the plaintiff and the other owner of the land covered by the original indenture. It is enough that, as it seems to me, the indenture, executed by Silas Snyder to Jacob L. Snyder, conveyed no rights as to the cement on the plaintiff’s ten acres.

It is said by the defendants, that equity looks on that as done which ought to have been done. They urge that the assignee of the original indenture had a right to a renewal, as against the plaintiff, and that the court should consider the renewal as having been executed. But the answer to this is, that the defendant, Jacob L. Snyder, has assumed a position in hostility to the plaintiff, and has taken a license from Silas Snyder. He claims to quarry the cement, as licensee of Silas Snyder, and denies that he is to make any compensation to the plaintiff. If proceedings were going forward between Jacob L. Snyder and the plaintiff, to adjust the compensation for a further term, according to the provisions of the indenture to Stephens, and, pending such proceedings, these defendants were quarrying, holding themselves liable to make compensation, a very different case would be presented.

A. Schoonmaker, Jr., for the appellants.

S. Hand, for the respondent.

I think that the injunction should issue.

Nothing was said on the argument, as to the amount of security which should be given, and I will consider that question as open, if the parties desire.

Bockes, J.:

The opinion of Mr. Justice Learned, at Special Term, is deemed quite satisfactory on all questions necessary to be considered on this appeal. A few observations, however, on the question as to the right of the defendant, Snyder, to a renewal of the lease or license given to Stephens, in 1848, may be of some moment.

The term of twenty-four years, specified in the lease, expired in 1872. Now, let it be conceded that the right to quarry and remove the stone under that license or grant then terminated, and it would follow that, after that period, the defendants were trespassers ; and as the trespass was in the nature of waste, and productive of irreparable injury to the freehold, they could be enjoined from the further commission of the alleged unlawful acts, at the instance of the owner of the fee.

First, then, has the plaintiff shown himself to be the owner of the fee? We concur with the learned judge, at Special Term, in his conclusion on this question. We are of the opinion that the plaintiff, on the papers before the court, shows himself to be the owner of the fee of the ten acres, subject only to the terms and conditions of the grant of 1848. As to those premises, he stands in the shoes of Silas Snyder, the original grantor and common source of title, with all his rights, and subject to all his obligations as regards any claim for a renewal of the lease. Through various mesne conveyances, he had acquired all rights remaining to Silas Snyder, after that instrument took effect. Consequently, the attempted renewal by the latter, in 1872, conferred no rights as against the plaintiff. The defendants were, therefore, without justification in quarrying and removing the stone after the expiration of the original term of twenty-four years, specified in the lease, in the absence of further grant or license from the owner of the fee.

The reasoning and suggestions of Mr. Jnstice Learned in support of the conclusions above adopted, are well stated in his opinion, and need not be here repeated.

It appears that the defendant, Jacob L. Snyder, has acquired, or claims to have acquired, all rights conferred upon the lessee or grantee, by the instrument of October 2d, 1848; among which was the right to have a renewal of the lease for the further term of twelve years. Concede that he possessed this right, and this is the foundation of his justification in this case, he might then demand and obtain from the plaintiff, the owner of the fee, performance of the condition for renewal, and the latter would be bound to respond to such just and lawful demand, inasmuch as the covenant for renewal ran with the land. The right to such renewal would, however, depend, first, on the validity of the covenant for renewal, and secondly, on the question whether the defendant, Jacob L. Snyder, had complied with the conditions on his part to be per-o formed in order to entitle him to claim and have a renewal from the plaintiff. These questions are open for litigation between the parties, and until they are judicially determined, the defendants should be enjoined and restrained from committing waste on the premises in dispute. The plaintiff has the legal title. The rights of the defendant, Jacob L. Snyder, are equitable only, as lie here presents them; and, until his rights are definitely determined, he should not be permitted to appropriate the freehold in a way which in law is deemed waste. Until his right to a renewal be established, and the conditions upon which the further term should be held and enjoyed, are settled and declared, either by amicable arrangement or by compulsory proceedings, he should desist from the commission of waste. Doubtless, he may have affirmative relief against the plaintiff, in case he can show himself entitled to a renewal or continuance of the lease for the further term of twelve years.

Nor has he lost or forfeited that right by taking, in form, a renewal from Silas Snyder. All that need be said in regard to that is, that the renewal by the latter is valueless as a protection against the claims of the plaintiff. He is bound to seek a renewal from the plaintiff, and must obtain it from him amicably or by compulsory proceedings, showing himself entitled to it; or, he must stand without justification for the acts complained of. It is sufficient here to say that the defendant, Jacob L. Snyder, has not here shown, before us, such a clear right to remove the stone as entitles him to have the injunction discharged. Hé must establish his right to a renewal, and have it adjudged to him before he can be allowed to cause irreparable injury to the freehold.

I am of the opinion that the injunction was properly granted; and that it sh ould be continued until the rights of the parties are determined by an open trial. It is presumed that ample security was given on granting the injunction, to indemnify the defendants against all damages which can result to them therefrom.

The order appealed from must be affirmed, with ten dollars costs.

Present—Miller, P. J., Bockes and Boardman, JJ.

Order affirmed, with ten dollars costs.

       West Point Company v. Reymert, 45 N. Y., 703.