text:
    Robbins M. Witherbee and Another, Respondents, v. Aubrey E. Meyer, Appellant.

      Equity action — defense of an adequate remedy at law — the specific performance of a contract and damages for its breach ■ — •covenant running with land — privity of estate.

    A defendant cannot, wlien sued in equity, avail himself of the defense that an adequate remedy exists at law, unless he pleads that defense in his answer.
    Where a court of equity has once obtained jurisdiction of a case, it will ordinarily retain it until the whole controversy is disposed of, and will adapt its relief to the exigencies of the case.
    The plaintiff has a right to ask for the specific performance .of a contract and for damages for the breach thereof in the same action.
    Where an agreement to furnish water power is in terms one between the parties, their executors, administrators and assigns, and where it affects certain real estate and the value thereof, if the conveyance of the water rights and real estate to a person recites that the conveyance is taken subject to such agreement, the agreement constitutes á covenant running with the land, and there exists a privity of estate between such grantee and the assignees of the rights granted by such agreement.
    Appeal by the defendant, Aubrey E. Meyer, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Washington on the 4th day of October, 1894, upon the report of a referee, with notice of an intention to bring up for review upon such appeal said judgment and the exceptions taken upon the trial and to the referee’s report.

      J. Sanford Potter, for the appellant.

      Joseph Potter, for the respondents.
   Herrick, J.:

This is an appeal from a judgment entered upon the report of a referee, awarding ‘a judgment in favor of the plaintiffs for the specific performance of a contract to furnish water power and for damages in the sum of $3,119.50 for withholding the same.

The appellant claims that the case is not one for a specific performance ; that the plaintiffs have an adequate remedy at law. It is possible that the appellant’s contention is true, but it comes too late; he neither raised that question by his answer, nor can I discover by an examination of the record that it was raised during the progress of the trial.

“ It appears to be settled by a very general concurrence of authority that a defendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exists, unless he pleads that defense in his answer.” (Town of Mentz v. Cook, 108 N. Y. 504-508; Hollister v. Stewart, 111 id. 644-659; Hawes v. Dobbs, 137 id. 465-470; Dudley v. The Congregation, etc., of St. Francis, 138 id. 451-460.)

The plaintiff had a right to ask for a specific performance and for damages in the same action. (Miles v. D. F. I. Co., 125 N. Y. 294-298.)

Where a court of equity has once obtained jurisdiction of a case it will ordinarily retain it until the whole controversy is disposed of, and will adapt its relief to the exigencies of the case. (Ostrander v. Weber, 114 N. Y. 102; Valentine v. Richardt, 126 id. 272.)

The agreement to furnish water power was in terms one between the parties, their executors, administrators and assigns; it was one that affected the lands now in possession of the defendant, and affected the value thereof; and when the defendant took the conveyance of the water rights and premises which he now owns and holds, the conveyance thereof recited, that he took the same subject to the agreement in question.

It seems to me, therefore, that the agreement constituted a covenant running with the land, and that there was a privity of estate between the defendant and the plaintiffs, who are the assigns of the rights granted by said agreement.

There was sufficient evidence to sustain the findings of fact of the referee, and they should not ,be disturbed.

The judgment should be affirmed, with costs.

, Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Per Ouriam :

license: Public Domain

text:
    Jose Gomez and Others, Appellants, v. William Hagaman and Others, Respondents.

      Preferences created by a failing debtor by a bill of sale — the statutory limitation of preference applies only to assignments ■— assumption by one firm of the debts of another, how shown.

    A failing debtor may prefer any and all of liis creditors by a bill of sale to such an extent as his property will permit; the statute limiting the amount of preferences only applies to a general assignment for the benefit of creditors. The assumption by a firm of the debts of another firm, existing on a certain date, may be established by facts and circumstances, although there is no express agreement between the parties to that effect.
    Appeal by the plaintiffs, Jose Gomez and others, from a judgment of the Supreme Court in favor of the defendants, entered in * the office of the clerk of the county of Albany on the 31st day of October, 1893, upon the report of a referee dismissing the plaintiffs’ complaint upon the merits.

      George JET. Mallory, for the appellants.

      George II. Stevens, for Samuel 0. Wooster, respondent.

      Arthur L. Andrews, for William Hagaman, respondent.
   Per Ouriam :

It is now settled that a failing debtor may prefer any of his cred- . itors by a bill of sale to such an extent as his property will permit j that the statute limiting the amount of preferences only applies to a general assignment for creditors. The conclusion reached by Parker, J., in London v. Martin (79 Hun, 229) is clearly supported by the authorities cited in his opinion.

"The only questions, then, to be considered are of fact. After reading and carefully considering the evidence contained in the case, and the elaborate points presented by counsel, we have reached the conclusion that we cannot properly reverse the findings of the referee on the facts.

There was testimony from which he was justified in determining that the firm of Samuel Stevens & Co. assumed the debts of Samuel Stevens, in his business, existing on April 1, 1887. Such an assumption may be established by facts and circumstances, although there was no express agreement between the parties to that effect. (Peyser et al. v. Myers et al., 135 N. Y. 599; Hannigan et al. v. Morrissey, Impld., 37 N. Y. St. Repr. 138.)

The facts and circumstances appearing in this case were sufficient to sustain the conclusion reached by the referee, and the evidence also upholds his finding that the bill of sale, which this action is brought to set aside, was not executed with intent to hinder, delay or defraud creditors. If the White debt mentioned in the bill of sale was not a co-partnership but an individual debt of Samuel Stevens, that fact would not, in our judgment, avoid the bill'of sale as to Wooster and Hagaman, the evidence showing that they received it in good faith to secure honest debts and without any knowledge that White’s claim was not a firm debt.

We think it unnecessary to enter into a discussion of the questions of fact involved, and conclude that the judgment should be affirmed, with costs.

Present — Mavham, P. J.; Putnam and Herrick, JJ.

Judgment affirmed, with costs.


author: Putnam, J.:

text:
    Henry W. Hayden, Respondent, v. Catharine E. Van Cortlandt, Appellant.

      Discovery — mandes and symbols on a tree, a document under section 803 of the Code of Oivil Procedure — discovery, not granted unless the necessity therefor be dea/rly shown.

      Quan'e, as to -whether a terminal line tree on which certain marks and symbols have been placed which tell the true line of a lot of land may be deemed a document within the meaning of section 803 of the Code of Civil Procedure.
    An order for discovery and inspection will never be granted unless the necessity therefor is clearly shown, and a fishing examination to enable the plaintiff in an action to discover what, if anything, there is worthy of discovery, will not be allowed.
    Herrick, J., dissenting.
    Appeal by the defendant, Catharine E. Van Cortlandt, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Warren, on the 10th day of November, 1891, directing the defendant to permit the examination of a certain terminal line tree to be made on behalf' of the plaintiff.

      Olcurenee II Frost, for the appellant.

      Henry W. Hayden, respondent, in person.
   Putnam, J.:

This action was brought for the purpose of enjoining the defendant from trespassing on property which plaintiff claimed to own at Lake George, and to establish the boundary line between such property of the plaintiff and defendant’s premises. The answer of defendant alleges that she is the owner in fee of the property which plaintiff claims. On the 2d day of October, 1891, plaintiff, on a verified petition and affidavits, obtained an order from a judge of this court requiring defendant to allow plaintiff to make discovery and inspection of certain marks alleged to be on a tree on defendant’s property, or on the line between plaintiff’s and defendant’s lots, or to show cause at a Special Term on the 20th day of October, 1891, why said order should not be made absolute. On said 20th day of October, 1894, at a Special Term of the Supreme Court, an order was made directing defendant to allow a discovery and inspection of the markings on said tree. From this order the defendant appeals.

It appears from the affidavits and papers presented to the court below that the division line between the lots of defendant and plaintiff is the south line of lot No. 15 of Kennedy’s patent, such line forming the north bounds of defendant’s premises, and that the question in controversy between the parties is as to the true location of said south line of lot No. 15. Plaintiff claimed that a certain terminal marked' tree on the premises now occupied by defendant, if examined and cut into, would probably exhibit marks showing that it is the terminal line tree of said south line of lot No. 15, and afford material evidence to sustain the allegations of the complaint. The order appealed from provided that defendant permit an examination of said terminal line tree by one Arnold, a surveyor, who, in the order, was appointed referee to examine said tree by boxing and cutting into it as far as necessary to read the marks therein.

We are not prepared to decide that the court below had not power to grant the order appealed from under the provisions of section 803 of the Code of Civil Procedure. It may be that a terminal tree on which certain marks and symbols have been placed which tell the true line of a lot of land — which marks have a meaning well understood by surveyors — can be deemed a document within the meaning of section 803 (supra). Rice, in his work on Evidence (p. 185, § 125), speaking of documents, says: “ Under this term are properly included all material substances on which the thoughts of men are represented by writing or any other species of conventional mark or symbol; this is the comprehensive definition by Best.

“Sir James Stephen’s definition is more restricted: ‘Any substance having any matter expressed or described upon it by marks capable of being read.’ (Dig. Law Ev. art. 1.)”

Chamberlayne, in his valuable annotations on the treatise of Best, at page 215, comments suggestively as follows : “ Within these definitions, a ring or banner with an inscription, a musical composition, and a savage tattoed with words intelligible to himself, would all be documents.”

In tlie Century Dictionary tlie meaning of the word “ document is defined as follows: “ In the law of evidence, anything bearing a legible or significant inscription or legend ; anything that may be read as communicating an idea (including thus a tombstone, a seal, a coin, a signboard, etc., as well as paper writings).”

Without passing on the question, however, and assuming that the court below had power to make the order appealed from, we think plaintiff failed in his petition and affidavits to establish a state of facts showing the necessity and the propriety of the order in question.

. It is well settled that an order for discovery and inspection will never be granted unless the necessity therefor is clearly shown. (Bien v. Hellman, 2 Misc. Rep. 168; Morrison v. Sturges, 26 How. Pr. 177.)

• In Brownell v. National Bank of Gloversville (20 Hun, 517) the General Term of this district held that what is called a fishing examination to enable plaintiff to discover something, if there is anything worth a discovery, will not be allowed. And.see the cases cited in the opinion delivered in that case. (Walker v. Granite Bank, 44 Barb. 39; Pegram v. Carson, 18 How. Pr. 519 ; Mott v. The Consumers’ Ice Co., 52 id. 148. See also, Douglas v. Delano, 20 Wkly. Dig. 85, 86.)

■ A careful examination of the petition and affidavits on which the plaintiff applied for the order in question makes it apparent that the necessity for the examination of the terminal line tree in question was not shown. As we have before suggested, the question in the case was as to the true south line of lot No. 15 of Kennedy’s patent. Plaintiff claimed that certain marked line trees on defendant’s premises showed the true south line of said lot, while defendant claimed that certain other marked trees north of her premises were on the true south line of lot No. 15 of Kennedy’s patent.

In his petition plaintiff states in regard to the terminal tree he desires to inspect as follows: “ That your petitioner has been advised by said D. M. Arnold that said terminal line tree bears the surveyor’s mark of a blaze and three hacks, which are now plainly visible to any one examining the tree, and that cos etU terminal line trees were marked to designate the line they stood in, in conformity with the general custom, he believes said terminal line tree to be marked in a manner which will show what the line is which it monuments.”

The surveyor, Arnold, in his affidavit, says as follows in regard to the terminal line tree: “ One of which line trees stands upon the shore of the lake, and is the terminal line tree of the line trees marking the north village line, and the south line of what remained of of lot No. 15, Kennedy patent, and that the blaze and three hacks are plain to be seen by any one familiar with the marking upon ancient trees (and that in deponent?s opinion said terminal line tree is marked in some rncmner which will indicate the line upon which it sta/nds), and throw much light upon the question whether it marks the south line of lot No. 15, Kennedy patent, as referred to in the said description of defendant’s fish pond lot, as its northerly line. * * *

“ That it was apparently marked many years ago, probably when the village of Caldwell was laid out, and that whatever ¡narking was made upon the blaze at that time, although now overgrown and concealed from view, still remains there plain and legible and can be read as well to-day as when placed there, if said tree is cut into and the growth over said marking and blaze is removed. . * * *

“ That it was the custom to mark all terminal line trees in some manner and to refer to them by the marks in the survey bill, and that the said terminal line tree bears the .blaze and three hacks, which are now plainly visible, and deponeovt believes that it will be found ■ marked, upon examination, in some manner designating the line of which it is the terminal monument, and that it will shed much light upon the question at issue, if it does not practically determine it?''

From the above quotations from the petition and the affidavit of Arnold, it is clear that a case for a discovery and inspection was not established. Arnold and the plaintiff merely believe that the tree in question will afford some evidence bearing upon the issues between the parties. But they do not know. It is quite apparent that the object of the examination is to find out whether the marks on the tree will or will not afford any evidence tending to establish the allegations of the complaint. The application for a discovery . is subject to the objections stated in Brownell v. Nat. Bank of Gloversville (supra). It seeks a fisliing examination. Plaintiff and his surveyor surmise that there may be marks on the tree that will afford evidence favorable to one of the parties, and wish to obtain an order of the -court allowing plaintiff to, ascertain the facts. Should the markings on the tree aid plaintiff to establish his cause of action he would use the evidence afforded by them on the trial, otherwise not. Arnold does not say that the marks on the terminal tree in question, which would be developed by cutting into it, will show that plaintiff’s contention is correct. ITe does not claim to know. He merely states that there are probably marks on the tree that will show on wdiat line it was a terminal boundary tree. It is quite evident, therefore, that the order is subject to the objection pointed out in the case of Brownell v. Nat. Bank of Gloversville (supra). It authorizes “ a fishing examination to enable the plaintiffs to discover something, if there be anything worth the discovery.”

The order should be reversed, with costs.

Mayham, P. J., concurred; Herrick, J., dissented.

Order reversed, with ten dollars costs and printing and other disbursements.


author: PUTNAM, J. :

text:
    Elizabeth Kelly, by Mary Kelly, her Guardian ad Litem, Admitted to Prosecute as a Poor Person, Respondent, v. The Cohoes Knitting Company, Appellant.

      Damages for personal injxvries — erroneous refusal of the court to charge the jury in rega/i'd to liability fox' negligence of a third person.

    Upon the trial of an action brought to recover damages arising from personal injuries resulting from the defendant’s alleged negligence, a question of fact was presented for the jury to determine whether the defendant was liable by reason of the negligence of his servants in loading a box onto a truck in the way they did ; it appeared that there were three persons engaged in the business, two servants of the defendant and a servant of an independent contractor; the j ury could have found from the evidence that the defendant’s servants were negligent, or that the servant of the contractor was guilty of .negligence, and that the defendant’s servants were not in fault.

      Held, that, there being no claim that the defendant was liable for any negligent act on the part of the servant of the independent contractor, the refusal of the court to charge the jury that if the accident happened through the negligence of the'servant of the independent contractor the defendant was not 'liable, and that for any commission of wrong on the part of the servant of such contractor or omission of duty by him, the defendant was not liable, was improper;
    That the instruction of the jury by the court that the plaintiff could not recover unless it were established that the injury to her was caused by the negligence of the defendant, did not cure the error made in the refusal to charge.
    Appeal by the defendant, The Cohoes Knitting Company, from a ■judgment of the County Court - of Albany county in favor of the plaintiff, entered in the office of the clerk of Albany county on the 2d day of August, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of August, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Charles F. Doyle, for the appellant.

      J. F. Crawford, for the respondent.
   PUTNAM, J. :

The action was brought to recover 'damages for an injury to plaintiff resulting from dofondant’s alleged negligence. Plaintiff claimed that on April 14, 1891, while she was passing along one of the public streets of the city of Cohoes a box- of goods was negligently pushed out of a door of defendant’s mill by its servants upon the sidewalk and injured plaintiff, who was then lawfully passing along the street.

The principal question between the parties on the trial was as to whether plaintiff was injured by the box as it was shoved out of defendant’s mill, or by the tailboard of the truck standing in front of the building to receive said box.

It is not claimed that defendant was liable for any negligence on the part of Simmons, the driver of the truck. He was an employee of Thompson & Hildreth, contractors, in the work of removing goods from defendant’s premises to the Citizens’ Line Steamboat Company. Simmons was not an agent or servant of defendant, but represented independent contractors.

We will not undertake to discuss the evidence produced on the trial by the parties. After carefully considering it, we are of the opinion that whether defendant’s servants were negligent in shoving the box of goods into the street in the manner they did, whether plaintiff was struck and injured by the box, and whether plaintiff’s negligence did or did not contribute to the injury, were all questions of fact, which the trial court properly submitted to the jury, and as to which the verdict is conclusive.

Nor, under the circumstances of the case, can the damages awarded to the plaintiff be regarded as excessive.

We should, therefore, be in favor of an affirmance of the judgment were it not for certain refusals to charge by, and ladings of, the trial judge, which, we think, were erroneous, and which may have affected the result.

On the trial defendant requested the court to instruct the jury as follows: “ That, if the accident happened by the negligence of Simmons, the defendant is not liable.” Also : “ For any commission of wrong by Simmons, or omission of duty by him, the defendant is not liable.” The court declined to so charge, and the defendant duly excepted.

As we have seen, Simmons was not a servant of defendant,' but of independent contractors, and it is not claimed that defendant was. liable for any negligent act on his part. It was a question of fact for the jury whether defendant was liable by reason of the negligence of its servants in loading the box onto the truck in the way they did. There. were three persons engaged in the business, two servants of the defendant and Simmons, the servant of the contractors. From the evidence the jury could have found that defendant’s servants were negligent. They could also have determined that Simmons, the servant of the contractors, was guilty of greater negligence; that he, standing in the wagon, where he must have seen the children passing along the street, and allowing the plaintiff to come under the descending box, which he was assisting to load, without warning, was guilty of gross negligence. Defendant’s servants, knowing that Simmons was in the wagon to receive the box, may, without being necessarily negligent, have regarded him as a watchman, who would warn travelers on the street as to the box about to descend and have relied on him to give such warning, and hence may not have been in fault themselves in pushing the box as they did into the wagon. At least, under the evidence, it was possible for the jury to so find.

We think, therefore, that the court should have charged, as requested, that defendant was not liable for any omission of duty, wrong or negligent act of Simmons. The question before the jury was — was the injury to plaintiff caused by a negligent act on the part of defendant ? Defendant was liable if a negligent act of its servants produced or contributed to the injury. It was not liable if the injury was alone caused by the negligent act of the contractors or their servant. It was a question of fact for the jury. By the charge, and the refusal of the judge to give the instructions asked for, the jury were allowed to believe and may have concluded that the defendant was liable for the act of Simmons. They may have reached a conclusion which they would not have arrived at had they been informed that the defendant was not responsible for the negligent action of the contractors or their servant. It is true, as suggested by the learned counsel for the respondent, that the jury were instructed by the court that plaintiff could not recover unless it were established that the injury to plaintiff was caused by the negligence of the defendant. But he should have charged further, as requested, that the act of the contractors was not that of the defendant. As the court left it, the jury may have determined that the defendant was liable for the negligent omission of Simmons to give proper ■warning to the children passing along the street. The refusal of the trial judge to instruct the jury as above suggested was a material error which necessitates the granting of a new trial.

We also doubt the correctness of the following instruction to the jnry: “ If you find the wagon was standing, as is claimed on the part of the defense, backed up against the building, and this plaintiff attempted to crawl through or to go through there when the end board was up within three inches of the building and hit the end board, then it is a question for you to determine whether she was guilty of negligence or not, taking in consideration her age. If she were an adult, had been at the time, and attempted to pass through such a place, I should charge you as a matter of law it was negligence, and gross negligence, and if she got injured she ought to suffer the consequences. I will leave that question with you to determine whether this girl, being ten years and a half or a little older, at the time, whether she was guilty of negligence, if she attempted to pass through there when the truck was standing within three inches or up against the building, or not.”

Although plaintiff was only ten and one-half years old, if she attempted to pass defendant’s building when the truck was only three inches from it, and under the circumstances stated in the charge, we doubt whether, as a matter of law, she was not guilty of contributory negligence. (See Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420.)

But as there should be a new trial for the reason above stated we will not consider this question, as well as other questions raised on the appeal.

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

Mayham, P. J., and Hbeeiok, J., concurred.

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


author: PüTNAM, J.:

text:
    Nathan G. Douglas and Another, Respondents, v. Daniel S. Coonley and Another, Appellants.

      Order sustaining a demurrer — reviewed on appeal from an interlocutory judgment entered thereon — the grant of a right to use the stairs of a building terminates upon its destruction — demurrer to an answer not sustained if the complaint is demurrable— allegation of the legal effect of a conveyance — form of denial by the answer.

    In order to review upon appeal an order sustaining a demurrer, upon which an interlocutory judgment was entered, it is not necessary to appeal from the order nor to refer to it in the notice of appeal.
    Such order is not appealable, and upon an appeal a reference in the notice of appeal to the interlocutory judgment entered pursuant to such order, enables the order sustaining the demurrer to be reviewed.
    Although the grantee of land upon which a store has been erected may acquire thereby the right to the use of a stairway in a building on the adjacent lot, such right terminates on the destruction of the building.
    Where a deed conveyed the right “to pass and repass up and down the passageway or stairway between the store owned by Margaret A. Cantwell, and of the parties of the first part hereto at all times in common * * * for the purposes of going and returning to and from the rooms in the upper part of said stores,” the language will be deemed to apply to the rooms and stairway in the building then standing, and cannot be construed to convey a right in the space occupied by the stairs, or a right to rebuild them after their destruction, or a right in a new stairway in a new building that may thereafter be erected on the lot by the assigns of the grantor named in such deed.

      Tliis is so notwithstanding the fact that the conveyance was made to the grantee, her heirs and assigns, if there was no provision in such deed which would compel the grantor or his heirs or assigns to rebuild the store on the adjacent lot in case of the destruction thereof.
    Where the complaint in an action fails to set forth a cause of action, a demurrer by the plaintiff to the answer of the defendant therein cannot be sustained.
    Where the plaintiff in his statement of the cause of action in the complaint in an action alleges only the legal effect of a conveyance, the defendant, in his answer, may follow the plaintiff's example in such respect.
    Appeal by tbe defendants, Daniel S. Coonley and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Franklin on the 13th day of September, 1894, upon the decision of the court rendered after a trial at the Clinton Special Term, adjudging the plaintiffs to be the owners and entitled to the immediate right of possession of a certain right of way, and enjoining and restraining the defendants from interference with the enjoyment of such rights, with notice of an intention to bring up for review upon such appeal the interlocutory judgment entered in said clerk’s office on the 30th day of June, 1894, sustaining the plaintiffs’ demurrer to the defendants’ answer, and also the order of reference made at the Clinton Special Term, and entered in said clerk’s office on the lltli day of July, 1894.

      Albert Hobbs, for the appellants.

      William P. Ocmlwell, for the respondents.
   PüTNAM, J.:

This is an appeal by defendants from a final judgment sustaining the demurrer interposed by plaintiffs to the answer. The action was brought to enforce plaintiffs’ alleged right to the use in common with defendants of a stairway on premises of the latter leading from the street to the upper story between the adjoining stores of the parties, situate in Chateaugay, Franklin county.

It was alleged in the complaint that one Henry B. Smith, deceased, being the owner of a building containing three' stores, died, leaving a last will and testament, in which he conferred on his executors therein named power to convey his real estate. The latter sold the middle store to one Margaret A. Cantwell on September 14, 1865, and on March 31, 1869, the adjoining west store to defendant Coonley and one John Hughes, whose title has since been transferred to the defendant Sophronia C. Smith. Between said middle and west stores was a party wall. Also, there was a stairway from the street to the upper rooms of the building, between the two stores, built in the store so conveyed to Coonley and Hughes, and used at the time of the above-mentioned conveyance in common by the tenants in the rooms over each of the stores as the only means of access thereto. It is alleged in the complaint: “ That while the said Daniel S. Coonley and John Hughes continued to be the owners of said west store, and the said Margaret A. Cantwell the owner of said middle store, and on the 15th day of May, 1869, the said Daniel S. Coonley and John Hughes, by a deed of conveyance duly executed by them, granted, sold and conveyed to the said Margaret A. Cantwell, her heirs and assigns, the right of way to pass and repass up and down the passageway or stairway between the store owned by Margaret A. Cantwell and of the parties of the first part hereto at all times in common with the parties of the first part hereto for the purposes of going and returning to and from the rooms in the upper part of said stores. The party of the second part to pay .one-half of the expense of keeping said stairway in repair.”

It was further alleged in the complaint that plaintiffs have succeeded to the title in said middle store and stairway formerly owned by said Margaret A. Cantwell; that on the 11th day of January, 1893, said building was destroyed by fire; that plaintiffs have since rebuilt the middle store and defendants the west store, with a stairway placed as and like the one destroyed, and the parties have built a party wall between the two stores similar to the one formerly existing; that defendants have wrongfully excluded and continue to exclude plaintiffs from the use of said stairway; that the plaintiffs, in consequence of such exclusion, have sustained damages to the amount of $200'. Plaintiffs asked for a judgment restraining defendants from interfering with the use of said stairway' by plaintiffs and their tenants, for $200 damages and further relief.

An answer was interposed, which will be hereafter considered. Plaintiffs demurred to the answer, and from the final judgment sustaining such demurrer this appeal is taken.

The demurrer interposed was in two parts —first, to the whole answer; and, second, to certain portions thereof which were assumed to be set up as separate defenses. The court below only considered and passed upon the demurrer to the whole answer. He, doubtless, concluded that the different paragraphs in defendants’ answer were not intended as separate answers, but as different paragraphs of one defense. It will only be necessary for us to consider the legal questions raised by the demurrer passed upon by the court below.

It is urged by respondents that this appeal does not bring up for review the questions sought to be raised by appellants, because no appeal was taken from the order on which the interlocutory judgment was based, nor is it stated in the notice of appeal that said order will be brought up for review on the hearing of the appeal. That the position of respondents is not well taken lias been held by this General Term in Dick v. Livingston (41 Hun, 455). Bockes, P. J\, in delivering the opinion, and speaking in regard to such an order, said: “ The decision was not appealable, but stood as does a decision by a referee or a judge on trial a without jury, which declares the rights of the parties and directs judgment. (Sec. 1021.) So here, it gave direction for the entry of an interlocutory judgment, from which an appeal might be taken pursuant to section 1349 of the Code.” The order not being appealable, it was not necessary to refer to it in the notice of appeal. The reference to the interlocutory judgment entered pursuant to the order was all that was necessary.

It is claimed by plaintiffs that their grantor, Cantwell, became the owner of an easement in, or right to the use of, the stairway in question by virtue of the deed from the executors of Henry B. Smith, and independently of the deed from Coonley and Hughes. It does not appear, from the statements made in the complaint, that the deed from the said executors in terms conveyed any rights in said stairway, but plaintiffs urge that Smith, being the owner of the two stores, and there being no other way of access to the rooms over the middle store except by the stairway, by the deed from the executors to Margaret A. Cantwell of said store and the rooms above it, without any reservation, a right to use said stairway as an appurtenance passed. That when Coonley and Hughes, afterwards, purchased the west store, they took the premises subject to the easement or servitude existing in favor of Margaret A. Cantwell.

Assuming that this position taken by respondents is correct, we are of the opinion that the easement in the stairway in question acquired under the circumstances by Margaret A. Cantwell, under the .deed to her from the executors of Smith, only continued to exist while the building standing when the right to such easement was acquired, remained, and ceased with the destruction of the building. (See Heartt v. Kruger, 25 N. Y. St. Repr. 686; affd., 121 N. Y. 386.)

In the case cited the owner of two adjoining lots erected a building on each with a party wall between them, one-half of which was placed on each lot. The two lots were afterwards transferred to different owners and both buildings were destroyed by fire. The defendant, the owner of one of the lots, erected a new wall on the old party wall foundation, and the plaintiff, the owner of the other lot, commenced an action of ejectment and was sustained in all the courts. In delivering the opinion of the Court of Appeals, GRAY, J., remarked: When the title to these two lots was severed by their conveyance to separate persons, the purchaser of each lot is presumed to have contracted in reference to the condition of the property at the time, and the openly existing arrangement of a party wall could not be changed, so long as it stood and answered its purpose. It was made a party wall upon the severance of the title by the description of the boundary line, but the whole extent of the qualification, which resulted as to each lot owner’s title, was the easement which the other acquired in the wall dividing and supporting their respective buildings. Each was bound to preserve the existing order of things in that respect, and neither had any right to change the relative condition of his building to the injury of the adjoining one. The party wall of the two buildings was an open and visible condition of' the ownership of the property, and, in legal contemplation, its use as such, while the buildings stood, was an element which entered into the contract of the purchaser and which charged the land with a servitude. * * * But, upon the destruction of the buildings, the tenements reverted to their original or primary conditions of ownership. Their tenure was no longer qualified by the relative rights and obligations which previously existed. * * * The implied agreement that the party wall, exising at the time of the conveyances of the two lots by their common owner, should continue in its use and occupancy as such, cannot be extended so as to relate to a changed condition of things caused by the casual destruction of the wall and buildings.”

We think the principles enunciated in the above quotations apply to this case. By the conveyances of the owner of both stores of the middle store to plaintiffs’ grantor, she acquired a right to use the stairway, the same as the defendants in the case cited acquired the right to use the party wall, one-half of which was on plaintiffs’, premises, but such right terminated on the destruction of the buildings.

Respondents also claim that under the deed from Coonley and Hughes to Margaret A. Cantwell, set out in the complaint, she, her heirs and assigns, acquired an easement in and a right to use the stairway existing when the conveyance was made, and also the stairway erected by defendants since the destruction of the building. The complaint does not contain a copy of the deed in question or a statement of its contents, except as above quoted. The answer to which the demurrer was interposed did not deny the execution of the deed.

We think the recital of the provisions of said deed in the complaint does not show a conveyance to Margaret A. Cantwell of any other or greater right than she possessed before it was executed. The deed (as the complaint states) conveyed a right “ to pass and repass np and down the passageway or stairway between the store owned by Margaret A. Oantmell and of the parties of the first part -hereto at all times in common with the parties of the first part hereto, for the purposes of going and returning to and from the rooms in the upper part of said stores.” The language above quoted should be deemed to apply to the rooms and stairway in the building then standing, and cannot be construed to convey a right in the space occupied by the stairs, or a right to rebuild after their destruction, or a right in a new stairway in a new building that might thereafter be erected by defendants. It is true that the conveyance was to Margaret A. Cantwell, her heirs and assigns. But the old building might have stood 100 years, and in that case the heirs or assigns of the grantee would have been entitled to the benefit of the conveyance. We think that the stairway referred to in the deed in question, as set out in the complaint, was the stairway existing when the conveyance was executed, and hence it did not appear from the allegations in the complaint that there was any conveyance of any easement in a new building to be erected after the destruction of the old one. There is no provision in the deed as so set out which would have compelled defendants to rebuild the west store, or if they did rebuild, to place a new stairway where the former one was, or wdiich would have allowed plaintiffs to erect a new stairway on the failure of defendants to do so.

We are inclined to think, therefore, that the complaint failed to show any right on the part of plaintiffs to an easement in the stairway in question, and hence to state a cause of action, and on that ground the court below erred in sustaining the demurrer. (Harvey v. Brisbin, 16 N. Y. St. Repr. 42; People v. Booth et al., 32 N. Y. 397.)

Assuming, however, that the complaint did state a cause of action, we think the answer contained denials of the averments therein which could not be properly held insufficient.

As we have seen, the complaint contained no copy of the deed from Coonley and Hughes to Cantwell. As far as it stated the contents of the deed, that instrument did not appear to convey to the grantee any easement in the land or in a new structure that might be erected after the destruction of the one standing. The complaint, however, alleged inferentially and in the way of a legal conclusion that plaintiffs, under the provisions of said deed, and by reason of all the circumstances set out in the complaint, became legally entitled to an easement in the new stairway.

To such a complaint so stating the carrse of action, if any, we think the denials in the answer were sufficient, and that the demurrer thereto should not have been sustained. The answer is somewhat indefinite and obscure, and doubtless could have been corrected on a motion to make it more definite and certain, but it alleges that under said deed any right acquired by Margaret A. Cantwell, her heirs and assigns, terminated with the destruction of the old building ; that the deed in question related to and only conveyed an easement in the old stairway and not in the new one. There being no copy of the deed in the complaint' and only a partial statement of its provisions, as heretofore shown, the above denials in the answer raised an issue. Plaintiffs having alleged only the legal effect of tiie conveyance in tlieir statement of the cause of action, defendants in the answer could follow their example. The answer also denies the allegations of the complaint that plaintiffs had sustained damages to the amount of $200 or any other sum, and alleged that the defendants were the sole owners of the space occupied by the new stairway and of the right to use the same. The answer also denied that either in fact or law plaintiffs had the rights claimed by them in the new stairway, or any right, claim or easement or privilege in or over the same.

We think to the complaint in the action the answer should have been held sufficient, and hence that the judgment should be reversed and judgment rendered for defendants upon the demurrer of the plaintiffs to their answer, with the usual costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed and judgment rendered for the defendants upon the demurrer to the answer, with costs and costs of this appeal.


author: PüTNAM, J. :

text:
    Patrick Fogarty, Respondent, v. Adam Hook and Another, Appellants.

      Direction of a verdict at the request of both pa/rties — not disturbed upon appeal.

    "Where both the parties, upon the trial of an action, request the court to direct a verdict, and neither asks that the case be sent to the jury, the court is authorized to decide the questions of fact in the case, and if there is evidence to sustain the finding made it cannot be properly disturbed on appeal.
    Such case stands in the same position as if it had been srrbmitted to the jury, and a verdict had been rendered by it in favor of the party in whose behalf the court directed the judgment.
    Appeal by the defendants, Adam Hook and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 20th day of June, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Fulton Circuit.

      Andrew J. JVellis and Borden J. Smith, for the appellants.

      Clarence V. Smith, for the respondent.
   PüTNAM, J. :

A careful reading and consideration of the evidence in the case has satisfied us that a question of fact was presented as to whether the conveyance from Henry B. Noll to. the plaintiff, under which the latter claimed title to the property which was the subject of the action, was fraudulent as against the creditors of Noll, or otherwise.

It cannot be held that the evidence conclusively established the fraudulent nature of the conveyances as alleged by defendants. It was possible to find from the testimony the payment by plaintiff to Noll of a fair price for the property in question, a change in the possession thereof, and the good faith of the transaction.

This question of fact, had either party so requested, it would have been the duty of the trial court to submit to the jury.

But both parties requested the court to direct a verdict, and neither asked to go to the jury.

It follows that the court was authorized to find upon the questions of fact in the case, and as there was some evidence to sustain the finding made it cannot properly be disturbed by us. (See Kirtz v. Peck, 113 N. Y. 222; Provost v. McEncroe, 102 id. 650 ; Schram v. Werner and others, 81 Hun, 561.)

The case stands the same as if it had been submitted to the jury and a verdict had been rendered for the plaintiff.

We conclude that the judgment should be affirmed, with costs.

Mayham, P. J"., and HerRIOK, J., concurred.

Judgment affirmed, with costs.


author: PutNAm, J.:

text:
    Isaac W. Winne, Appellant, v. David Houghtaling, Respondent.

      Execution against the person — renewal thereof by a justice of the peace ■ — • when void and insufficient to authorize an arrest — release on habeas corpus — Code of Cvvil Procedure, §2016.
    A justice of the peace, on the return unsatisfied of an execution against the person, may at his election issue a new execution or renew the former one; if he issues a new execution it must be returnable under the provisions of section 3025 of the Code of Civil Procedure within sixty days; if he renews the former execution its renewal must be for the same period.
    A renewal has the same effect and stands in the place of a new execution, and where a justice on the return unsatisfied of an execution against the person, instead of renewing the same as provided by statute, indorsed on it a restricted renewal whereby he attempted to make it returnable in thirty days instead of sixty days, such renewal has no authority from the statute and is void.
    A Justice’s Court being one of limited jurisdiction, such attempted renewal of an execution against the person does not justify an officer in arresting the person against whom such execution was issued.
    A person arrested under a judgment obtained without jurisdiction, or under a process not authorized by the judgment or by statute, may be released by a writ of habeas corpus. Section 2016 of the Code of Civil Procedure, which provides that a person detained by virtue of an execution or other process issued upon a judgment shall not be entitled to a writ of habeas corpus, refers to a valid and authorized and not to a void execution.
    Appeal by tbe plaintiff, Isaac W. Winne, from an order of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Scliobarie on tbe 16tb day of June, 1894, discharging tbe defendant from jail and tbe custody of tbe sheriff, with notice of an intention to bring up for review upon such appeal the petition, said order and execution, renewal, affidavits, evidence and all papers used upon tbe granting of tbe same.

      G. M. Palmer, for the appellant.”

      I. W. Baxter, for tbe respondent..
   PutNAm, J.:

This is an appeal from an order discharging respondent from tbe custody of tbe sheriff of Schoharie county, N. Y., be being detained under an execution issued agaitíst tbe person by a justice of tbe peace, and having been brought before a justice of this court upon a writ of habeas corpus.

A judgment was rendered in favor of plaintiff against defendant by a justice of, tbe peace for wrongful conversion of property. An execution was properly issued upon said judgment by said justice on tbe 29th day of March, 1894, against tbe person of said respondent. This execution was renewed by said justice on tbe 29th day of May, 1894, by indorsing on said execution tbe following:

“ Tbe within execution is hereby renewed this 28th day of May, 1894, for tbe term of thirty days.
“AUGUSTUS PARSONS,
“ Justice of the PeaceP

For a failure to pay said judgment the defendant Hougbtaling was taken into custody by a constable on the 9th day of June, 1894, and imprisoned in the jail of Schoharie county, where he was detained by the sheriff until discharged by the order aforesaid, from which this appeal is taken. The order discharging the prisoner was granted on the sole ground that the indorsement of renewal upon the execution was irregular and void.

It is provided by the Code of Civil Procedure (§ 3025) that an execution issued by a justice of the peace must be made returnable in sixty days. Also (§ 3027), that on the -return of the execution issued by a justice of the peace wholly of partly unsatisfied, he may issue a new execution or renew the former one as'follows : “ An execution is renewed by a written indorsement there upon to that effect, signed by the justice, and dated upon the day when it is made. * * * Each indorsement renews the execution for sixty days from the date thereof.”

It thus appears that a justice on the return of an execution unsatisfied may, at his election, issue a new execution or renew the former one. If he issues a new execution, it must be returnable under the provisions of section 3025 within sixty days, and if he renews the former execution it is a renewal for the same period. A renewal has the same effect and stands in the place of a new execution. ■

The justice in this case, instead of renewing the execution, as provided by statute, indorsed on it a restricted renewal whereby he attempted to make it returnable in thirty days instead of sixty. Such a renewal had no authority from the statute, and we think that the court below was correct in holding it void.

In Toof v. Bently & Harris (5 Wend. 276) the defendant Bently had obtained a judgment against plaintiff in a Justice’s Court for fifty dollars and eighty-seven cents, and tire justice had issued an execution, made returnable in sixty days. Hnder the statute then existing it should have been returnable in ninety days. A levy was made under the execution on Toof’s personal property, and the property was locked up in his building. The defendant Bently and Harris, the constable, after such levy, broke into the building where the property was situated, and for such trespass the action was brought. Savage, Ch. J., in delivering the opinion of the court, says; “The justice had jurisdiction; the judgment was regular. If tbe execution bad been returnable in ninety days tbe officer would bave been justified. Tbe defendant in tbe execution (tbe plaintiff liere) was not injured by tbe error in tbe return of the execution-; but it is well settled that inferior and limited jurisdictions must be coiifined strictly to pursue tbe authority given them. The justice bad no more authority to issue an execution in tbe case before liim, returnable in sixty days, than in thirty days, or even in ten days; and surely such an execution would be no protection to tbe officer, because on tbe face of tbe process it was not such an one as tbe justice bad authority to issue upon such a judgment. In my opinion, therefore, tbe execution was no justification.”

Tbe same doctrine was held in Farr v. Smith (9 Wend. 338). In that case an execution issued, returnable in thirty instead of ninety days, as provided by statute, was held void. We are not cited by appellant to any authorities in conflict with tbe above. Under tbe doctrines therein laid down we must bold that tbe renewal which tbe justice assumed to make in this case for thirty days was an unauthorized act by tbe justice and void. It was to all intents and purposes the same as if be bad on tbe return of tbe first execution issued a new one for thirty days, instead of sixty days. A Justice’s Court being one of limited jurisdiction, and tbe renewal assumed to be made in this case being unauthorized by any statute, it was void, and did not justify tbe officer in arresting the defendant.

It is claimed, however, by the appellant that tbe defendant having been imprisoned by virtue of tbe execution issued upon a judgment duly obtained against him under the provisions of section 2016 of the Code of Civil Procedure, be could not be discharged from imprisonment by a writ of habeas corpus. But in this case, as we bave seen, tbe execution was without authority, although tbe judgment on which it was attempted to be issued was duly obtained. One arrested under a judgment obtained without jurisdiction, or under a process not authorized by tbe judgment or by statute, may be released by a writ of habeas corpus. Tbe statute (§ 2016, supra!), which provides that one detained by virtue of an execntion or other process issued upon a judgment, decree or final order, shall not be entitled to a writ of habeas corpus, refers to a valid, authorized and not a void execution. In People ex rel. Tweed v. Liscomb (60 N. Y. 559) AlleN, J., says: “ The prohibition of the forty-second section of the habeas corpus act forbidding the inquiry by the court or officer into the legality of any previous judgment, decree or execution specified in the twenty-second section, does not and cannot, without nullifying in good measure the provisions of that and other sections of the act, take from the court or officer the power, or relieve him from the duty, of determining whether the process, judgment, decree or execution emanated from a court of competent jurisdiction, and whether the court making the judgment or decree or issuing the process had the legal and constitutional power to give such judgment or send forth such process. * * *

“ The inquiry is necessarily in every case whether the process is void, and the officer or court having jurisdiction of the writ must pass upon it. If a process good in form issued upon a judgment of a court having jurisdiction, either general or limited, must in all cases be assumed to be valid until the judgment be reversed upon error, the remedy by writ of habeas corpus will be of but little value.”

The doctrine so enunciated in the case above cited was followed and approved in People ex rel. Frey v. The Warden (100 N. Y. 20-24).

It follows that the order should be affirmed, with costs.

Hekbiok, J., concurred; Mayham, P. J., not acting.

Order affirmed, with ten dollars costs and printing and other disbursements.

      So in original.


author: Pee CueiaM :

text:
    Richard B. Hoos, Appellant, v. Sarah C. Hempstead, Respondent.

      Credibility of the husband of a pa/i'ty to an action — ratification, by the owner of land, of the una/wthorized erection of a building thereon.

    The credibility of the husband of a party to an action, who testifies upon the trial thereof, is to be determined by the jury.
    Where, upon the trial of an action brought to recover for the building of a bam upon the lands of the defendant, the jury determines from the evidence that the plaintiff erected the barn on the defendant’s premises without any authority whatever from the defendant or her agent, or her assumed agent, the subsequent renting by the defendant of the premises on which the barn was erected would not, as a matter of law, constitute a ratification.
    Herrick, J., dissenting.

      Appeal by the plaintiff, Richard B. IIoos, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 8th day of October,, 1894, upon the verdict of a jury rendered after a trial at the Rensselaer Circuit, and also from an order, made on the 21st day of September, 1894, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.

      George Lawyer and'A”. B. Spalding, for the appellant.

      A. W. Gleason, for the respondent.
   Pee CueiaM :

The error of the court below, if any, in overruling the objections of the plaintiff to the question asked of the witness Salisbury, Q. “You never heard Mrs. Hempstead ask him to build that” (referring to a shed) was cured by the answer, the witness stating: “ I am not positive about it. It was so long ago I couldn’t say. I would not swear now whether I did or not hear her ask him to build it.” If the court was wrong in his ruling, the plaintiff was not injured. Also, there was no error in excluding the testimony of the plaintiff as to the various conversations between him and the defendant in regard to the shed.

The question whether or not plaintiff was employed by defendant or her husband to build the barn, to recover for the building of which this action was brought, was, we think, one of fact which the trial judge was compelled to submit to the jury, and we are unable to see how the verdict of the jury can be disturbed.

The only evidence showing that defendant’s husband employed plaintiff to build the barn was the' testimony of the latter. His credibility was a question for the jury. (Hodge v. City of Buffalo, 1 Abb. N. C. 356; Elwood v. Western Union Tel. Co., 45 N. Y. 549; Gildersleeve v. Landon, 73 id. 609.)

The jury may not have credited the plaintiff’s statement, and hence reached the conclusion that the barn was built without any authority from the defendant’s husband as her agent, or assuming to act as her agent.

Defendant denied that she authorized her husband to act as her agent, or informed plaintiff that she had so authorized him. It was a question for the jury whether the plaintiff testified truly. Also, whether she admitted that she had to pay for the barn, as plaintiff and Salisbury testified.

There was no such conclusive evidence of the ratification by the defendant as required the trial judge to take that question from the jury. The latter, from the evidence, could have found that plaintiff erected the barn on defendant’s premises without any authority whatever from defendant or her agent, or any assumed agent. Such being the case, her subsequent renting of the premises on which the barn was erected would not, as a matter of law, constitute a ratification.

We conclude that the judgment should be affirmed, with costs.

Mayham, P. J., and PutNAM, J., concurred; Herrick, J., dissenting.

Judgment affirmed, with costs.


author: HbReioK, J.:

text:
    Frank N. Wright, Respondent, v. John A. Robinson & Co. (Incorporated), Appellant.

      Tendel• by a creditor to his debtor — when a check, is a sufficient tender — money must be paid into court— effect of a legal tender as to interest and costs.

    Where one person is indebted to another tor two separate and distinct claims, it is the debtor’s legal right to pay either of such claims separately, and the creditor has no right to reject an amount tendered in payment' of one of such claims because it is not the whole amount due to him from the debtor at the time upon both claims.
    A check, if not objected to, is, for the purpose of a legal tender, the equivalent of money.
    Where a tenant has been in the occupation of premises for about eighteen months and all his payments of rent, which were made monthly, have been made by check, and when, only seven days px’ior to his sending a check in payment of one month’s rent, the owner of the premises had written to him requesting that he send a check for the rent then due, an offer of payment by check is equivalent to a tender of the amount in cash.
    The owner has the right at any time to put a stop to such method of payment, but if payments by check have been the customary and accepted way of dealing between the parties, the owner, having invited payment in that manner only a brief time before, if he desires to stop payments in that way, should notify the tenant that that manner of payment will no longer be accepted, and give him an opportunity to make a strict legal tender.
    Where a tender is made by check, if the amount thereof is paid into court, and the answer alleges that fact, it is not necessary to bring the check into court in. order to keep the tender good; sections 731 and 732 of the Code of Civil Procedure only apply where a tendería made after the commencement of an action.
    Interest can be allowed in any case, only where such allowance is authorized by some contract, express or implied, or by some statute or on account of the default of the party liable to pay when it is allowed as damages for such default.
    Where the sending of a check is a sufficient legal tender it stops the running of interest from that time upon the amount thereof.
    A legal tender is equivalent to payment as to all things which are incidental or consequential to the debt.
    Where a legal tender is not accepted, the creditor, while not losing his right to the prior debt by his refusal of the tender, does lose all collateral benefits and securities, and if the tender is followed by payment into court, subsequent to the tender, interest and costs cannot be recovered by the creditor.
    The effect of a tender is to stop interest and prevent costs, and to be effectual for such purpose it must be kept good by the debtor, and whenever he seeks to make it the basis of affirmative relief, it must be paid into court, and that fact must be alleged in the pleadings. >
    Appeal by the defendant, John A. Robinson & Co. (Incorporated), from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 24th day of September, 1894, upon the report .of a referee.

      Joseph G. Behan, for the appellant.

      L. L. Boyce, for the respondent.
   HbReioK, J.:

This is an appeal from a judgment entered upon the report of a. referee in favor of the plaintiff and against the defendant, for the sum of $177.05, damages and costs.

The facts are undisputed, and were stipulated before the referee. The plaintiff let and rented a store to the defendant for a term commencing August 15,1892, and to terminate on the 31st day of March,. 1895, at the yearly rental of $300, payable monthly.

On the 23d day of January, 1894, the plaintiff wrote to the defendant as follows : “ I wish you would send me a check for my rent, as I am in need of it.” Pursuant to such letter the defendant sent plaintiff its check, dated January 26,1894, for seventy-five dollars for rent then past due. The plaintiff was put to the expense of fifty cents for the collection of such check. The defendant received, no notice of the expense of .such collection.

On the 1st day of February, 1894, the sum of twelve dollars and fifty cents became due and payable on account of rent of said store.. On the 30th day of January, 1894, the defendant sent to plaintiff its cheek for the sum of twelve dollars and fifty cents ; accompanying such check was a letter, in substance stating that such check was sent in payment of the rent due February 1, 1894.

On the 31st day of January, 1894, plaintiff returned said check to the defendant, with a letter reading as follows:

“Noethville, N. Y., Jan. 31 si, 1894.
“ JohN A. RobiNsoN & Co.:
“GeNtlemeN.— I herewith return your cheek for $12.50, as I cannot accept it as payment for anything.
“ Yours, &c.,
“ F. N. WRIGHT.”

The letter and check were received by the defendant February 1, 1894.

All the payments of rent during the term of said lease were made by the defendant’s checks, which were accepted by plaintiff, and ■duly paid, except the installment of twelve dollars and fifty cents before set forth. At the time the check for twelve dollars and fifty cents was drawn and sent by the defendant to plaintiff, there was and ever since have been funds on deposit to the credit of the defendant in the bank upon which such check was drawn, more than sufficient to meet the same had it been presented, and it is conceded that the check would have been paid if presented in the usual course of business.

At the time of the rental of said store by plaintiff to defendant, an agreement was entered into whereby the plaintiff agreed to heat the said store for the defendant, for the sum of forty-five dollars per year, which sum the defendant agreed to pay on the first day of January of each year.

On the 2d day of February, 1894, this action was commenced by the service of a summons and notice upon defendant.

It does not appear when the complaint was served. The complaint sets forth two causes of action; one for twelve dollars and fifty cents, being for the-installment of rent due February 1, 1894, and the other for forty-five dollars, being the amount due January 1,1894, for heating the store, pursuant to the agreement above stated.

On the 9th day of April, 1894, the defendant served its answer to plaintiff’s complaint. In sucli answer the defendant admitted the indebtedness of the forty-five dollars. As to the cause of action for the twelve dollars and fifty cents for rent, the defendant alleged that on or about the 31st day of January, 1894, it tendered and delivered to the plaintiff a check for the sum of twelve dollars and fifty cents in payment thereof, and that such tender “ was in accordance with the usual custom and practice long established between the plaintiff and defendant, and at the request of said plaintiff; that at that time, and ever since, there have been funds on deposit to the credit of said defendant at the bank upon which said check was drawn, more than sufficient to meet the payment of said check.”

The answer further alleges that the defendant has ever since been, and still is, ready and willing to pay the plaintiff said amount, “ and that said sum of twelve and 50-100 dollars has been actually delivered and paid over to the Clerk of this Court for the use and benefit of said plaintiff, whenever said plaintiff shall elect to receive the same, and that notice of the delivery and payment to said clerk has been given to said plaintiff.”

Upon, the hearing, before the referee, it was stipulated between the parties, “that on the 9th day of April, 1894, the defendant deposited with the Clerk of this Court, to wit: the Clerk of the County of Fulton, the sum of $12.50, in cash, for the use and benefit of plaintiff, and that notice of such deposit was given to and received by the plaintiff at the time the answer herein was served.”

Upon these facts, the referee directed judgment for fifty-seven dollars and fifty cents, with interest from the time the several amounts became due, together with costs, in favor of the plaintiff and against the defendant.

The legal question arising in the case is as to whether the defendant’s sending its check, for the amount due for rent, was a sufficient tender, and, if so, whether such tender has been kept good.

No reason was given for the return of the check, as will be observed by reading the letter heretofore set forth.

At that time the defendant was owing the plaintiff fifty-seven dollars and fifty cents, consisting of two separate and distinct claims; one of forty-five dollars, and one of twelve dollars and fifty cents.

It was the defendant’s legal right to pay either of these separately, and the plaintiff had no right to reject such payment because it was not for the whole amount due him at that time from the defendant on both claims.

Its return cannot be sustained, therefore, on the ground that it was not for the full amount the defendant owed the plaintiff.

The defendant made it applicable to the rent due, as it liad a legal right to do, and it was for the full amount of rent then due ; so that it was a good tender, except that it was by check instead of in money.

A check may be a sufficient legal tender. “ The check of the party not objected to was, for all the purposes of a legal tender, the equivalent of money.” (Mitchell v. V. C. M. Co., 67 N. Y. 280-282.) In that case another reason than that it was a check was given for declining it.

The defendant had been in occupation of these premises for about eighteen months, and all its payments of rent had been made by check. Only seven days before the sending of the check in question the plaintiff had written to it requesting it to send a check for the rent then due. Under such circumstances I think the offer of payment by check was the equivalent of a tender in cash. Of course the plaintiff had the right at any time to put a stop to that method of payment; but payments by check having been the customary and accepted way of dealing between the parties, and the plaintiff having invited payment in that manner so brief a time before, if he had desired to stop payments in that way he should have notified the defendant that that manner of payment would no longer be accepted, and have given an opportunity to make a strict legal tender; good faith required such a course on his part. I do not think that he should be permitted to take advantage of the defendant, after so long a course of dealing between them, by peremptorily stopping it without notice and mulcting the defendant with interest and costs. (Gray v. Green, 9 Hun, 334-338.)

The action was commenced so quickly after the return of the check, with his reason for refusal unexplained, that the defendant did not have a reasonable opportunity to make the required payment in money.

The defendant’s jn’actice to keep the tender good was proper; it was not necessary to bring the check into court when the amount in money was deposited.

In Becker v. Boon (61 N. Y. 317), wliere the defendants had tendered a check before the commencement of the action, the court said: “ In order to make the tender effectual for any purpose it was the duty of the defendants to pay the money into court, and allege that fact in their answer.” The tender is thus kept good.

Sections 731 and 732 of the Code of Civil Proceedin'® only apply where a tender is made after the commencement of an action, and do not affect any of the questions raised in this case.

The plaintiff insists that the tender, if made, was not kept good because the defendant did not include, in the amount deposited by it in court, interest upon the sum of twelve dollars and fifty cents from the time it was due, February-first, until the time of such deposit in court.

If sending the check to the plaintiff was a sufficient tender, it stopped interest from that time forth.

“ Before interest can be allowed, in any case, it must be by virtue of some contract, express or implied, or by virtue of some statute, or on account of the default of the party liable to pay, and.then it is allowed as damages for the default.” (Matter of Trustees, etc., 137 N. Y. 95-98.)

In this case there was no default upon the part of the defendant. It tendered payment in the manner it had been invited and accustomed to pay, and it was, under the circumstances, a legal tender. A legal tender is equivalent to payment as to all things that are incidental or consequential to the debt. The creditor, while not losing his right to the prior debt by his refusal of the tender, does lose all collateral benefit and securities; and where the tender is followed by the payment into court, interest and costs cannot be recovered. (Kortright v. Cady, 21 N. Y. 343, 347, 366.)

If, on the trial, the defendant establishes the defense of tender, such tender bars the recovery of all interest subsequent to the tender. (Kelly v. West, 36 N. Y. Super. Ct. 304.)

In Riley v. Cheesman (75 Iiun, 387) and Nelson v. Loder (132 N. Y. 288) it was held that for the purpose of barring interest, the tender must be kept good from the time of the tender made up to the time of depositing the money in court.

The case of Riley v. Cheesman was an action upon a note, and it was held that an amount sufficient must be kept on deposit to meet the -note upon its presentation to the bank; and in the other case, Nelson v. Loder, which was upon a mortgage, it was said that the money must be devoted “ to the specific purpose of paying the debt,” and put within the power of the creditor to receive it at any time.

In this case no question is raised as to the tender not being kept good in the time intermediate between the making of the tender by check and the deposit of the money in court, but it appears that during all that time there was money in the bank to defendant’s credit sufficient to meet the amount of such check if it had been presented.

The effect of a tender is to stop interest and prevent costs, and to be effectual for such purpose must be kept good by the debtor, and whenever he seeks to make it the basis of affirmative relief, it' must be paid into court, where the creditor can get it, and that fact must be alleged in the pleadings. (Halpin v. Phenix Ins. Co., 118 N. Y. 165-178.)

Here the parties were living at a distance from each other (one in Northville and the other in Troy), and the suit was commenced the day after the rejection of the tender, and the defendant was not called upon to make or keep his tender good by an offer in cash, other than that made in his answer to the complaint, and his notice accompanying the same, when the time came for making his answer to such complaint.

The tender being kept good by the defendant keeping himself at all times able to make a cash payment by having the necessary funds in the bank, and by the deposit in court, the effect of it relates back to the time when it was originally made, and bars the recovery of interest from that time.

These conclusions lead to a reversal of the judgment. The facts being undisputed, judgment is, therefore, ordered for the defendant, with costs, together with the costs and disbursements of this appeal, from which amount should be deducted the sum of forty-five dollars, with interest thereon from January 1, 1894.

MayhaM, P. J., and PutNAM, J., concurred.

Judgment reversed, and judgment rendered for the defendant with costs and disbursements of this appeal, less forty-five dollars, with interest from January 1, 1894.


author: ELbRRICK, J.:

text:
    Louis Bourdon, Respondent, v. Francis A. Martin, as Receiver, etc., of Emma Walker, a Judgment Debtor, Defendant. Robert C. Waldron, Appellant.

      •Costs of an action brought against a receiver, chw'ged against the judgment creditM' 'procuring Ms appointment.

    An order made by the Special Term of the Supreme Court charging a person with costs, awarded in an action brought against a receiver appointed under a judgment obtained by such person, is proper, and will not be interfered with upon an appeal therefrom, if it appears that such party charged with costs is the only person who would have been benefited by the fruits of the action to which such receiver was a party (the receivership not having been extended to any other judgment), that the attorney who conducted such action for the receiver was the attorney for such person, and that all the steps taken by the receiver were taken at the request of such attorney.
    ■Appeal by Robert 0. "Waldron, a judgment creditor, from an order of tbe Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Saratoga on the lltli day of July, 1894, directing the said Waldron to pay to-the laintiff herein the costs awarded to the plaintiff in the action.
    This action was brought by Louis Bordon originally against The New York and Lake Champlain Transportation Company to recover $243.20 “ for food and meals furnished to divers persons during the months of April and May, 1891, for and at the request ■of the defendant.”
    In an action brought by Robert C. Waldron against Emma Walker (who was the same person as Emma Bourdon) j udgment was recovered by the plaintiff, and in supplementary proceedings instituted therein an order was made June 13, 1891, directing The New York and Lake Champlain Transportation Company to pay over to the sheriff of Saratoga county $240. Thereafter the order of June 13, 1891, was vacated and the sheriff was directed to repay the money to the company, which was directed to pay it to the sheriff, “ there to remain until the further order of this court.”
    Subsequently the said company was discharged on the payment of the money into court, and Francis A. Martin, the receiver of Emma Walker (appointed in the supplementary proceedings), was substituted as a defendant in its place in the first above-entitled action, wbicli was finally decided in favor of tlie plaintiff therein, and the defendant was charged personally with the costs thereof. Thereafter an application to compel Robert C. Waldron (the judgment creditor), as the person beneficially interested in the litigation, to pay such judgment was granted.

      J. W. Atkinson, for the apj)ellant.

      Thomas O’ Connor, for the respondent.
   ELbRRICK, J.:

This is an appeal from an order of the Special Term charging-the appellant with costs awarded in an action against a receiver under a judgment obtained by the appellant.

It appears that the appellant is the only person who would have been benefited by the fruits of the action commenced by the receiver. The receivership has not been extended to any other judgment.

The attorney who conducted that action for the receiver was the appellant’s attorney; the one who had conducted the proceedings supplementary to execution; the one who had appeared for the appellant in the original judgment; the one who appeared also for the appellant before the Special Term, resisting the application charging him with cos'ts. The receiver swears that all the steps taken ”by him were at the request of said attorney.

The appellant’s affidavit was somewhat evasive, and that, coupled with the absence of the attorney’s affidavit, in face of the fact that the moving papers charged that such attorney was acting for and at the request of the appellant in conducting the litigation in question in the name of the receiver, justified, I think, the Special Term in assuming that such attorney was acting for the appellant, and at his request and upon his retainer all through these proceedings, and that the receiver was in fact the mere instrument through which such attorney acted. Such being the fact, the order was abundantly justified by the case of Ward v. Roy (69 N. Y. 96), and should be affirmed, with ten dollars costs of this appeal and printing and other disbursements.

Mayham, P. J., and PutNAm, J., concurred.

Order affirmed, with ten dollars costs and printing and other ' disbursements.


author: HeeRicK, J. :

text:
    Laura B. Ingalsbe, Appellant, v. Julia Murphy and Others, Respondents; Nellie R. Ingalsbe and Others, Defendants.
    . Mm'tgage foreclosure — the amount due the mortgagor’s estate or his heirs by the mortgagee deducted — an accounting ordered — equity jurisdiction extended to all necessa/ry relief ■ — multiplicity of suits and expenses avoided.

    In an action brought to foreclose a mortgage the maxim applies that he “ who comes into a court of equity must do equity.”
    Where a debt, secured by a bond and mortgage, has become due, and the only persons interested in the estate of the deceased mortgagor, except the creditors thereof, are the children of the mortgagor and their descendants, the plaintiff, in an action brought to foreclose such mortgage, if in any manner indebted to the testator at the time of his death, must allow the amount of such debt to be deducted from the amount due upon the bond and mortgage.
    If, since the death of the testator, the mortgagee, who is also the guardian of the testator’s children and the trustee of his property, including the mortgaged property left in trust for the benefit of the testator’s children, has become, by appropriating- or withholding a portion of such trust property, indebted to such children, the amount of such indebtedness will be deducted from the amount of the claim of the mortgagee against the testator’s estate. In such foreclosure action, where no accounting has been had between the parties, it is proper that an accounting between the mortgagee and her cestuis que trust should be ordered.
    To do complete justice between the parties, a court of equity will retain a cause for the purpose of affording all necessary and adequate relief.
    It is the object of the Code of Civil Procedure, as it is of equity, to avoid 9 multiplicity of actions and useless expense, and to effect by one action a complete determination of all matters which may come into controversy and litiga, tion between the same parties.
    Appeal by the plaintiff, Laura B. Ingalsbe, from portions of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Washington on the 29th day of October, 1894, upon the decision of the court rendered at the Washington Special Term, directing the foreclosure and sale of certain mortgaged premises.

      L. II. HortJmp, for the appellant.

      D. J. Sullivcm, for respondent Julia Murphy.

      A. D. Arnold, for guardian ad litem and Howard Ingalsbe.
   HeeRicK, J. :

In March, 1811, one Lyman L. Ingalsbe, the brother of the'plaintiff, executed and delivered to the plaintiff a bond and mortgage for the sum of $3,371. Lyman L. Ingalsbe died July 25, 1880, leaving a last will and testament, wherein he appointed Milo Ingalsbe his executor. At the time of his death he owned the real estate covered by the mortgage in question, and several other pieces of realty in addition. By his last will, and testament, all his property, both real'and personal, after the payment of his debts and the payment of the dower right of his widow, was given to the plaintiff in trust for the benefit of his children, until the youngest child should become twenty-one years of age, when the property should be divided equally between them. The youngest child became twenty-one years of age before the commencement of this action.

The trial court found, and there is evidence to sustain such finding, that, after the probate of the will, the plaintiff took possession of the real estate of the said Lyman L. Ingalsbe, as testamentary trustee under his said last will and testament, and has remained in possession of such real estate, as such trustee,- down to the commencement of this action.

There has been no judicial or other settlement of the accounts of the plaintiff as such trustee. There is no evidence to show that the plaintiff ever took possession of any of the personal property of the testator.

The executor named in the will died some time before the commencement of this action, without having settled the estate, and no administrator with the will annexed has ever been appointed in his place.

The defendant Julia Murphy is one of the children of Lyman L. Ingalsbe.' The plaintiff commenced this action for the foreclosure of the mortgage in question. The defendant Julia Murphy interposed an answer to the plaintiff’s complaint, in which she alleged, upon information and belief, that the bond and mortgage referred to in the complaint had been fully paid and satisfied before the commencement of the action.

For a further defense she recites the provisions of her father’s will, wherein the plaintiff is made the guardian of all his children who were under the age of fourteen years at the time of his death, until they should respectively attain the age of twenty-one years; and also the provision in said will by which all his property, both real and personal, after the payment of his debts and satisfaction of the dower right of his widow, was devised to the plaintiff in trust for the benefit of his children. And alleges that after the probate of said will the plaintiff entered upon the discharge of her duties as such trustee, and took possession as such trustee of the property named in the mortgage and the other .property of the testator, and continued in the exclusive possession and control thereof down to the present time; and that during all such time the plaintiff has received large sums of money on account of such trust, and that she has supported herself almost entirely out of such property, and that she has never accounted for the property so received by her, and asks that she be compelled to render an account as such trustee, and that anything found to be due from her from the receipts of such property be charged against the bond and mortgage in question.

Upon the trial the court found the amount due for principal and interest upon said mortage to be $3,614.65, and directed a salé of the premises covered by such mortgage, and that after deducting the costs and expenses of such sale the proceeds thereof be paid to the treasurer of the comity of Washington, subject to the order of the court. The court further held that the defendant Julia Murphy was entitled to an order of reference to take proof of the accounts of Laura B. Ingalsbe as such testamentary trustee, and report the same to the court, and ordered that all other questions be reserved until the coming in of such report.

The defendant Julia Murphy was the only defendant who made answer to the plaintiff’s complaint, witli the exception of the usual formal answer of the guardian ad litem, who had been appointed for several infants, the descendants of deceased children of Lyman L. Ingalsbe. The plaintiff appeals from that portion of the interlocutory judgment which directs the payment of the proceeds of the sale to the treasurer of Washington county, and the further provision in said judgment by which a referee is appointed to take and state the accounts of the plaintiff as trustee under the last will and testament of Lyman L. Ingalsbe, and report the same to the court, in order that the court may direct the amount in her hands as sucli testamentary trustee, if any there be, to be applied upon the amount so adjudged due upon said bond and mortgage.”

The appellant, upon this appeal, claims that the court had no authority or jurisdiction to direct the proceeds of the sale of the mortgaged premises to be deposited with the clerk of Washington county, and had no authority in this action to compel the plaintiff to render an account as trustee, and no authority to deduct any moneys found in her possession, or due from her, as such trustee, from the amount of the mortgage, and no authority to withhold from her the amount due upon her mortgage until the settlement of her accounts as trustee.

- She claims that that portion of the answer of the defendant Julia Murphy, in which she alleges the possession by the plaintiff as trustee of the testator’s property, and failure to account for the same, was not properly pleaded ; that it did not constitute a counterclaim to the plaintiff’s cause of action, and was not a proper subject of investigation and trial upon the foreclosure of the mortgage in question. I think these contentions of the appellant are erroneous. The debt secured by the bond and mortgage in question has now become one against the estate of the mortgagor, and the only persons interested in that estate, except creditors thereof, are the children of the mortgagor and their descendants.

If the plaintiff had been in any form indebted to the testator at the time of his death, the amount of such debt would have been deducted from the amount due upon the bond and mortgage. The payment of this bond and mortgage subtracts so much from the estate which has been left in trust for the benefit of his children, and if, since his death, the mortgagee, who is also the guardian of his children, and the trustee of the property, including the mortgaged property that he had left in trust for their benefit, has become, by appropriating or withholding a portion of such trust property, indebted to such children, I can see no good reason in equity why the amount of such indebtedness should not be deducted from the amount of her claim against the estate.

An action to foreclose a 'mortgage is an equitable one. (Pom. Eq. Juris. §§ 112, 111.) And it is a familiar maxim “ that he who comes into a court of equity must do equity; ” and it seems to me simple ■ equity that the plaintiff, before she forces payment of her own claim, which takes so considerable a portion of the property of her wards and cestui que trusts from them, should deduct therefrom such amounts as she has received while she has been acting as trustee, if any, which have not been otherwise properly expended by her in the course of executing such trust. To hold to the contrary, and award her payment of the full amount due upon such bond and mortgage, and force her wards to compel an accounting in a separate action, would not only compel unnecessary litigation, circuity of action and expense, but might also practically result in their being unable, at the end of such action, to procure from their guardian and trustee payment of the amount found due from her to them. By that time the amount paid over to her 'upon her mortgage might be expended, dissipated, or by some means placed beyond the process of, the court.

The plaintiff has come into a court of equity to enforce her rights; all the parties necessary to a determination of all the equities between her and the estate of the testator, and between her and the testator’s children, are now before the court. The court has jurisdiction of the action, and lias jurisdiction of the parties, and it is a familiar rule of equity that when it once obtains jurisdiction of a cause for one purpose, it may retain it generally. To do complete justice between the parties a court of equity will retain the cause for the purpose of affording all necessary and adequate relief. (Lynch v. M. E. R. Co., 129 N. Y. 274-279 ; Dammert v. Osborn, 140 id. 30-45.),

“ The object of the Code is, as it is the aim of equity, to avoid a multiplicity of actions and useless expense, and to effect a complete determination of all matters which may come into controversy and litigation between the same parties by one action.” (Shepard v. M. R. Co., 117 N. Y. 442-450 ; Hunter v. M. R. Co., 141 id. 281-285.)

The case before us seems to me one peculiarly appropriate for the court to exercise its authority in compelling a settlement of all controversies and questions between the parties in one action. And the principles of equity enunciated in the cases cited are singularly applicable to the case of a creditor of an estate who is at the same time trustee of the same estate, and the guardian of the beneficiaries of that estate, and who it is alleged has never rendered any account of her proceedings as such trustee and guardian, but is indebted to her wards for some portion at least of the proceeds or fruits of the property she has been in possession "of, and managing, presumably, for their benefit.

The proceeding of the trial court in this action is in harmony with the principles herein set forth. It avoids a multiplicity of actions and useless expense,” and effects “ a complete determination of all matters which may come into controversy and litigation between the same parties by one action,” and insures a certainty of protection of the rights of the wards of the plaintiff by withholding from her the amount of her claim against the estate until she has settled her accounts with that estate.

Eor these reasons the interlocutory judgment appealed from should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Interlocutory judgment affirmed, with costs.