author: By the Court.—Speir, J. Sedgwick, J. (concurring).

text:
    JOHN P. O’SULLIVAN, Plaintiff and Appellant, v. MARSHALL O. ROBERTS, Defendant and Appellant.
    EVIDENCE.
    Reception of, when ebboe, not cubed by subsequent WITHDRAWAL OF SAME IN A TRIAL BEFOBE JURY.
    This action was brought to recover the value of certain services performed by the plaintiff for the defendant, in Mexico, claimed to be worth fifty thousand dollars, but for which plaintiff recovered in this action ten thousand dollars, from which judgment both parties appealed.
    This court on appeal, held that there was a valid agreement between the parties that would support the claim of the plaintiff on a quantum, mermt, and that the real question in the case was as to the.amount that plaintiff should recover; but on the review of some of the exceptions to evidence received under objection by the court below, a new trial was ordered. These exceptions are embraced in the following points:
    The plaintiff, as a witness, had stated that at Orizaba, on the way from Vera Cruz to Mexico, he fell sick, and in consequence thereof he stayed at Orizaba six weeks. He was then asked, “What expenses were you put to by your illness there ? ” and I he answered after objection, &c., that his expenses were six or | seven hundred dollars, gold.
    The general term held this testimony to be inadmissible, and I that the error of the court was not cured, by the subsequent di-1 rection of the judge at the close of the trial, in his charge to the jury, to disregard it, and his order to strike it out from the testimony in the case.
    This evidence had already (at the time it was stricken out) had its effect upon the jury, and it can not be said that their judgment was not influenced thereby. The cases of Anderson ». The Rome, W. & Ogd. R. R. Co. (54 IV. T. 334), and Erben o. Lorrillard (19 IV. V. 302), are precedents clearly against the admission of this testimony.
    There was also error in allowing the jury to take into consideration the subject and expense of entertainments given by the plaintiff in Mexico to the emperor and empress, and to the emperor’s cabinet ministers, when there was no proof before them of their value or of what they consisted.
    Before Sedgwick and Speir, JJ

      Decided May 3, 1875.
    This action is brought to recover for the plaintiff’s services in going to Mexico, in the year 1866, at the request of the defendant, and procuring a ratification of a prior grant in relation to the New York and Tehuantepec Railroad and Steamship Company, from the then imperial government of Mexico. The complaint alleges that the services were- successfully performed by the plaintiff, and that they were reasonably worth fifty thousand dollars.
    The answer is a general denial, and sets up that the plaintiff undertook to procure a ratification of said grant by Maximilian, and that defendant agreed to pay him, therefor, the sum of two thousand dollars in coin, and no more, which sum was paid by him to the plaintiff. It further sets up that the defendant agreed, in the event that said grant was valid and subsisting, and a valid and indisputable title to said grant duly approved by Maximilian, and the formation of said corporation to construct and operate the road under said grant, to issue to said plaintiff out of the capital stock to the nominal amount of fifty thousand dollars.

      The answer further sets up, that the prior grant had lapsed, and that the prior company had nothing which it could convey to the defendant, and the alleged ratification was of no force or effect. It also alleges a counter-claim of money, to the extent of a thousand dollars, advanced to the plaintiff.
    The reply put in issue the counter-claim. At the close of the case, the following question was submitted to the jury, “ Did the defendant, Marshall O. Roberts, after the return of the plaintiff from Mexico, accept the result of the plaintiff’s mission to Mexico, as a performance of the plaintiff’s part of the agreement.” To which the jury answered, “Yes.”
    The jury also found a general verdict for the plaintiff, for thirteen thousand five hundred and ninety-three dollars and fifty-seven cents, as the value of the services of the plaintiff, deducting one thousand dollars, the counter-claim.
    A motion was made by the plaintiff to amend the general, verdict by making it seventy-three thousand nine hundred and thirty-two dollars and five cents, claiming that amount as the contract price, on the ground that the only point at issue, was whether the plaintiff had performed or the defendant had accepted what the plaintiff had done as a performance of the contract. This motion was denied, and the plaintiff excepted. The plaintiff also moved on the same ground on the special verdict, which was denied, and an exception taken.
    The defendant’s counsel moved for a new trial upon the judge’s minutes, which was denied, and they excepted.
    Both parties appeal.

      James H. Fay, attorney for the plaintiff; Albert Stickney, of counsel.

      Brown, Ball & Vanderpoel, attorneys for defendant; A. J. Vanderpoel and Edwards Pierpont, of counsel.
   By the Court.—Speir, J.

Comonfort the president of the republic of Mexico, on September 7, 1857, granted to a corporation of citizens of the United States, known as the Louisiana Tehuantepec Company, the privilege of constructing a railroad across the isthmus of Tehuantepec. In March, 1866, the defendant negotiated with the Louisiana Tehuantepec Company, for the purchase of this grant, and on March 22, 1866, wrote to Mr. Louis A. Hargous, who represented the company, the following letter:

“ Dear Sir,—In relation to the Louisiana and Tehuantepec Company, I would say, if I can get a legal assignment of all the rights of said company confirmed by the government of Mexico, I will build the proposed railroad, and give three million dollars in stock of the company which may be formed for that purpose. Yours very truly,
MARSHALL O. ROBERTS.”

At this time Maximilian, who had entered Mexico by aid of the French government, was in possession of the city of Mexico, claiming to be emperor of Mexico, and was sustained there by the aid of France.

Juarez was president of the republic of Mexico, and during this period lived in different cities of Mexico.

After the defendant’s purchase, he executed a power of attorney, on April 2, 1866, to Mr. Henry Wyckoff, to proceed to Mexico and obtain the permission and sanction of the imperial government to change the name of the company, and call it the New York, Tehuantepec and Pacific Railroad and Steamship Company, and to transfer all the rights, powers, property, franchises, charters, and privileges of every name and kind of the Louisiana and Tehuantepec Railroad Company, to the New York, Tehuantepec and Pacific Railroad and Steamship Company.

It appears.that the defendant, on the suggestion of Marquis de Montholon, was induced to allow the plain-' tiff to accompany Mr. Wyckoff on the mission. Accordingly, Wyckoff and the plaintiff started for Mexico on April 10, 1866, were shipwrecked a few days out from New York, and returned to New York. It was then concluded to substitute the plaintiff for Wyckoff on this mission, and on April 25, 1866, the plaintiff, at defendant's request, sailed from New York and went to Mexico. He was taken sick, and confined by illness more than six weeks at Orizaba, and reached the city of Mexico in June, 1866. He remained in the city of Mexico about four months, and returned to New York about November 16, 1886, and delivered into the defendant’s hands the following, as the result of his mission:

“Maximilian, Emperor of Mexico, having heard our council of ministers, we decree—Permission is given to the Louisiana Tehuantepec Company, privileged for the opening of an inter oceanic communication by the isthmus of this name, by the decree of September 7, 1857, and conformably with Article 23 of the same decree, that it may transfer the residence of its directorship from New Orleans to New York, and change its name to that of New York and Tehuantepec Railroad and Steamship Company.
“ Given at Mexico on the 12th of October, 1866.
(Signed) MAXIMILIAN.”

On October 15, 1866, Juarez, the president .of the republic, declared the privilege theretofore granted to the Louisiana and Tehuantepec Company, for the reasons in his declarations stated, lapsed and insubsistent; and gave to anew company,to wit, the Tehuantepec Transit Company, the privilege which had theretofore been held by the Louisiana Tehuantepec Company. So that in three days after the imperial sanction had been obtained by the plaintiff, a decree was issued by the president of the republic of Mexico, declaring that the privilege granted by the Louisiana Tehuantepec Company had lapsed. When the plaintiff first arrived in New York from Mexico, the repudiation of this grant by Juarez, and the new grant which had been made to Messrs. La Reintrie & Knapp, were known to both plaintiff and defendant.

It was conceded by both sides on the trial, at its close, that the defendant was to pay the sum of two thousand dollars towards the plaintiff's expenses, and the jury by their verdict acted upon that understanding, by allowing the offset of one thousand dollars, admittedly borrowed of the defendant. This question, then, involving the moneyed transaction between the parties, may be considered at rest.

It may be assumed, I think, that the foregoing is a fair statement of the history and circumstances under which the parties entered upon this enterprise; and which seemed to me to be necessary to a proper understanding of the many opposing views and opinions on the evidence and law, which have arisen on the trial.

A contract of some kind plainly existed between the plaintiff and defendant. The question is,—What was that contract, both as to compensation, the services required to be performed, and the performance?

The plaintiff contends that Mr. Wyckoff, who was "rst employed by the defendant to perform the serices required on this mission, and in whose place he plaintiff was substituted, acted for the defendant, nd with his approval, in arranging the terms of the greement. Accordingly, it was agreed, at Mr. Wyckff’s suggestion, that the plaintiff should write a note him setting forth those terms. The following is the ote :

“My Dear Mr. Wyckoee,—Will you please to say to Mr. Roberts that I accept the offer made by you, for an amount of New York and Tehuantepec stock that will produce fifty thousand dollars, tor which consideration I agree to go to Mexico and co-operate with you in obtaining the imperial sanction to the proposed company.
“Furthermore, I desire that Mr. Roberts will associate me with you as his representative in accomplishing the proposed object.
“Finally, please arrange with Mr. Roberts, in accordance with all usage, that a liberal sum may be appropriated for our just expenses, to and from Mexico.”
The plaintiff claims that Mr. Wyckoff or the defendant handed to him a paper, of which the following is a copy (the original having been stolen from the plaintiff):
“New York, April 10, 1866.
“ My Dear Sir,—I approve of the proposition made to you by Mr. Wyckoff, guaranteeing you fifty thous- and dollars in stock of the projected New York and Tehuantepec Railroad and Steamship Company, in consideration of you assisting him in obtaining the sanction of the imperial government to the said organization. I am happy to associate you with Mr. Wyckoff in the business he has undertaken, and hope that your joint efforts will be successful, both for my sake and that of his Mexican majesty.
“I concur, when the matter is complete.
“MARSHALL O. ROBERTS.”

It is not denied that the first of the two preceding j letters was written by Mr. Wyckoff for the plaintiff to j copy, to be addressed to the former, and it is proven by both to contain the berms of the contract. The defendant evidently had knowledge of this letter, and the I purpose for which it was written. He says in his letter I to the plaintiff, “Mr. Wyckoff made the arrangement for you and again, “ Mr. Wyckoff, being acquainted with the whole subject, drew up the paper in your behalf, and can be applied to, if I misstate the facts.” This is the only paper in the case proven to have been drawn up by Mr. Wyckoff, containing terms of the agreement.

The other letter, dated April 10, 1866, purporting to have been signed by the defendent, is claimed by him to be a forgery. He states positively under oath that he did not sign it, that he never authorized it, and that his signature is a forgery. Evidence was given on the point on both sides, and being contradictory, the court left the question to the jury.

The first letter is not questioned by either party, and being recognized by the defendant, contains of itself, I think, a valid agreement. It was written, and in the plaintiff’s possession, before he left for Mexico, and after the defendant had made his contract of March 33, 1866, with Mr. Hargous, the terms of which were, “if I can get a legal assignment of all the rights of said company confirmed by the government of Mexico, I will give three million dollars in stock of the company which may be formed for that purpose.” On the part of the plaintiff the terms were, “he agreed to go to Mexico, and co-operate with Wyckoff in obtaining the imperial sanction to the proposed company.” On the part of the defendant, the. consideration was the payment of an amount of the Hew York and Tehuantepec stock, that will produce fifty thousand dollars. The engagement of the defendant was unconditional to deliver a certain amount of stock, &c. On April 35, 1866, the day the plaintiff sailed, he received from the defendant a letter, to the effect that he was happy that he had consented to leave for Mexico by the steamer, that the purchase of the grant for a railroad over the Isth mus of Tehuantepec had been completed, and he would send him papers at the earliest moment. The letter claimed to be a forgery does not materially change the terms of the engagement. It approves the proposition made to Mr. Wyckoff by the plaintiff, guaranteeing fifty thousand dollars in stock of the projected company. In one respect it is more unfavorable to the plaintiff :• “I concur when the matter is complete.” That is, when, the imperial sanction to the proposed company has been obtained, I will complete my engagement, not before.

A power of attorney executed by the defendant, and. dated May 9, 1866, reached him about the time of his. arrival in Mexico. This, most likely, is one of the-papers the defendant had promised, when the plaintiff' sailed, “ to send to him at the earliest moment.” This power of attorney is in terms the same as the defendant had more than a month before its date executed to Wyckoff, when preparing to go upon the same mission. And it nowhere appears, as far as I can see, that the plaintiff had ever seen that power, or knew of the terms of the present one before reaching the ground of' his operations. It is very difficult to understand why he should have been kept in ignorance of so valuable and serviceable a, document, purporting to contain his instructions. Perhaps one versed in the dexterity and skill of diplomacy might furnish a satisfactory reason„

The defendant on July 26, 1866, wrote to the plaintiff, calling his attention to the powc.r he had sent him,, which authorized him to apply to the “imperial government, for their consent to change the name of the grant to the New'York and Tehuantepec Railroad and Steamship Company.” Although the letter speaks, of the power, it is pointed to the changing of the name of the company. That was done by the decree of Maximilian.

This power of attorney which the plaintiff received in Mexico, gave broader powers than those contained in the contract entered into before the plaintiff left New York. It contained the additional authority, “to transfer the rights and powers, property, franchises, and charters of every name and nature of the said Louisiana and Tehuantepec Company, unto the new company.”

The defendant now claims, that the plaintiff knew of this additional authority, and acted upon it in his negotiations with the imperial government; that a fair construction of the evidence on that point is, that the power contained all that he was required to do. That being so, he failed entirely to perform what was required of him, as shown by the decree he obtained; that the power contained the basis of the contract between the parties, and was so treated by them ; that the contract being upon the contingency, that the privilege and franchises of the old company should be transferred to the new company, before the defendant became liable to pay either in money or stock; that those franchises and privileges being revoked, the company could not issue stock to the plaintiff or anybody else.

On this point, then, the parties were at issue as to what the evidence proved as matter of fact. By the defendant’s theory, when the plaintiff found the power in Mexico clearly defining what was required of him to do, and he acted upon it, the agreement he had made before he sailed, was modified by his own voluntary act, and it can not be said he accomplished his mission.

I think that the court properly decided, that if this were true, it did not deprive the plaintiff of a suitable and proper compensation for his services. This, of course, is put upon the ground that he had performed his part of a valid contract before the defendant had imposed new and other duties by his letter of July 26, and the power. The question for the jury to answer in such a conflict of testimony was, whether the defendant, after the return of the plaintiff from Mexico, accepted the plaintiff’s mission as a performance of the plaintiff’s part of the agreement. This course was clearly justified by the pleadings. The complaint counted upon a quantum meruit, and the defendant, in his answer, does not deny that the plaintiff failed to perform, but that the defendant was unable to perform on his part. The jury having affirmatively answered the question submitted, and returning a general verdict for the plaintiff, it remains to look into some of the objections and exceptions taken on the trial, to see if the verdict can be sustained.

On the trial, after the plaintiff had stated that he had landed at Vera Cruz in the beginning of May, and went from there to Orizaba, where he fell sick and stayed six weeks, he was asked, “ What expenses-were you put to by your illness there ? ”

The question was objected to as irrelevant, immaterial, and incompetent. The court overruled the objection, and the defendant excepted. The witness then stated that he had two doctors most of the time, and one accompanied him to Mexico, and his expenses were something like six or seven hundred dollars in gold.

I am of the opinion that this testimony was clearly inadmissible. Under any aspect of the case was it proper ? No obligation whatever obliged the defendant to pay the expenses of the plaintiff’s sickness at Orizaba. And the answer was calculated to awaken the sympathies and arouse the prejudices of the jury Plaintiff’s counsel contend that the error was cured by the court directing the jury to disregard this testimony, and ordered it to be stricken out. But the testimony was given at the commencement of the trial, which lasted three or four days, and the order to disregard it and strike out was at the close, when the judge charged.

The evidence had already had its effect upon the jury, and we can not say their judgments were not influenced. The cases of Anderson v. The Rome, W. and O. R. R. Co. (54 N. Y. 334), and Erbon v. Lorrillard (19 N. Y. 392), are clearly against the admission of this testimony.

I think, also, there was error in allowing the jury to take into consideration the subject of entertainments given by the plaintiff to Maximilian, to his cabinet, and to the empress. It is difficult to see how it was possible for the jury to consider those entertainments and disbursements in arriving at a verdict, when there were no items properly before them ; no proof whatever of what they consisted or their value. I am of the opinion a new trial should be granted, with costs to abide the event.

Sedgwick, J. (concurring).

I concur in the result, and am of opinion that the judgment should be reversed, with costs to abide event.


source: Caselaw Access Project

author: By the Court. —Speir, J.

license: Public Domain

text:
    THE TRUSTEES OF COLUMBIA COLLEGE IN THE CITY OF NEW YORK, Plaintiffs and Appellants, v. ANNA M. LYNCH, et al., Defendants and Respondents.
    COVENANTS IN REGARD TO THE USE OF REAL ESTATE RUNNING WITH THE LAND.
    Parties thereto—their power to bind subsequent ownebs,
    WHO TOOK TITLE SUBJECT TO IT.-RESTRAINT OP TRADE, BY
    SUCH COVENANTS, CONSIDERED.
    A owning lands contiguous to B, entered into a written and sealed agreement with B, in which each party covenanted that thereafter no buildings but a certain class and kind of dwelling-houses should he erected on their respective lands described in said agreement, and neither they nor their heirs and assigns, nor their tenants, or sub-tenants, should permit, grant, erect, make, establish, or carry on in any manner, on any part of said lands, any stable, schoolhouse, engine-house, tenement-house, or any kind of manufactory, trade or business whatsoever, or erect or build, or commence to erect or build, any building or edifice, with intent to use the same or any part thereof for any of such purposes, and that their covenants should bind their assignees and tenants, and the said lands should be forever subject thereto, and should run with the land, &c., &c.
    After the deatli of A, his executor sold and conveyed the premises that belonged to A, and by several conveyances in regular succession, a portion of the same reached 0, as owner, each of said conveyances being made subject to the original agreement between A and B.
    0 erected a building of a different style and character from the kind provided for in said agreement, a portion of which had an entrance and offices for business on another street than that contemplated by and covenanted in said agreement, and O’s tcnaht occupied a portion of this building as a dwelling for himself and family, and another portion for an office in the real estate business, and his sub-tenants occupied other portions for other business, all of which was a violation and breach of the covenants of said agreement.
    It appeared that this portion of the street (Sixth avenue) was wholly occupied, at the time of the commencement of the action, as a business street, while at the time of said agreement these premises were vacant lots. B brings an action to restrain C, and tenants, from carrying on business on their premises, because of the covenants in said agreement.

      Held, That these covenants were binding upon C, but it appearing that A had not suffered any damage, and also that since the covenants had been made, there had been a change of the circumstances, condition, and business in this part of the city, and that the enforcement of the covenant against carrying on any business on the premises, would conflict with the public welfare and interests: a court of equity should not interfere. It is a well-established rule, that equity will not interpose between parties when a change of circumstances (in regard to the original status of the parties who made the covenant and the subject-matter thereof) renders it inequitable to do so.
    Besides, the plaintiff should have interfered at the time the building was being erected, and not wait until the defendant had expended her money. “Every relaxation which the plaintiff has permitted, in allowing the house to be built in violation of the covenant, amounts pro tanto to a dispensation of the obligation, &c. ” (Roper ». Williams, 1 Turner & Russel, 32).
    A court of equity can not disregard, but must take notice of, the changes that have taken place in certain portions of New York during the past fifteen years, in regard to trade • and business; and all contracts which may obstruct the progress of the city, in trade, commerce, and population, should be strictly interpreted, and the equitable rights and interests of the individual must yield to the greater equities or interests of the masses, or the public.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.
    This is an appeal from a judgment of the special term dismissing the complaint. The cause was tried without a jury.
    The action was brought to restrain the carrying on of business, in the premises on the north-east corner of Fiftieth street and Sixth avenue, in the city oflSTew York, of which the defendant Lynch was owner, and the other defendants tenants, upon the ground that the premises were subject to a covenant reserving the property exclusively for dwelling houses.
    The westerly portion of the block in question, prior to 1859, belonged to Joseph D. Beers, from whom defendant Lynch acquired title, and the portion adjoining on the east belonged to the plaintiffs.
    On July 25, 1859, an agreement was executed by the parties, whereby the said Beers, in consideration of certain covenants therein contained on the part of the plaintiffs, did for himself, his heirs, and assigns, in respect to tire lands which he then owned, covenant and agree to and with the plaintiffs, their successors and assigns, that his lands above mentioned, and every part thereof, should be subject to the following, covenants among others, namely: that the said Beers, his heirs or assigns, his or their tenants, and others occupying his. lands, above descibed, or any part thereof, should not permit, grant, erect, establish, or carry on in any manner, on any part of said lands, any stables, school-house, engine-house, or manufactory, or business whatsoever :: or erect or build, or commence to erect or build, any building or edifice, with intent to use the same, or any part thereof, for any of the purposes aforesaid.
    And it was mutually covenanted and agreed between, the parties, that the grants, covenants, and agreements, therein contained, should not only be binding upon the parties, their heirs, and successors, but tha,t the same should run with the land, and be binding upon all persons, who might thereby become .interested in the lands, or any part or parts thereof, as owners, tenants,. or .occupants, or otherwise claiming under, or through the said Beers, or as lessees of the plaintiffs, or as assignees, undertenants, occupants, or otherwise, under such lessees, and might be enforced by or against any of such persons as occasion might require.
    - The agreement was duly recorded, and the defendant Lynch took her lot expressly subject to the conditions and restrictions of the agreement of Beers and the plaintiffs.
    Before the action was commenced, the defendant Lynch erected a four-story dwelling-house upon that part of the premises conveyed to her, between Sixth avenue and a line distant twenty-two feet easterly therefrom, and running to the center of the block between Fiftieth and Fifty-first streets, of the full width thereof, fronting on, and entered by a high stoop from Fiftieth street, and in width, on Sixth avenue, sixty-four feet. On the basement story in front, by the side of the stoop, and on the side opening on Sixth avenue, were two French windows, and one on Fiftieth street, which were used as entrance doors to the basement and office.
    The defendant Lynch was seized and possessed by herself, or her tenants, of that part of the premises improved by her, and the defendants. Yates and Blaisdell are in the possession as her tenants.
    The complaint alleges that the defendant Lynch has not complied with the covenants and restrictions contained in the agreement, but has violated the same, by erecting or building on the premises a certain building, with the intent that certain apartments on the ground floor should be used as shops or offices for the transaction of trade or business, and has permitted, and continues to permit, the violation of the covenants by the defendants Yates and Blaisdell.
    That Yates has violated the said agreement, by-carrying on, and continuing to carry on, the trade or business of a real estate and insurance agent, or broker, in part of the building erected as aforesaid.
    That the said William A. and Harrison A. Blaisdell have also violated the said agreement, by carrying on, and continuing to carry on, the trade or business of house, sign, and fresco painters, in part of the building.

      G. D. L. Harrison, attorney for appellants; S. P. Nash, of counsel.

      Townsend & Mahan, attorneys for respondents; E. L. Fancher, of counsel.
   By the Court. —Speir, J.

The claim of the plaintiffs to equitable relief rests on the validity of the agreement entered into between the plaintiffs and Joseph D. Beers, relating to the manner of improving, for future use, the lots of land of which they were the adjoining owners. At the time of making the agreement, each party thereto owned the premises in fee, stated to'be owned by them respectively ; and neither party derived title by or through the other party. All the conveyances which carried the title from Beers to the defendant Lynch, were made subject to this agreement ; and by each of the deeds it was expressly declared that the property was thereby conveyed subject to the covenants, conditions, and restrictions contained in the agreement.

The title to "one of these lots next adjoining the Sixth avenue, and fronting on Fiftieth street, being the corner lot, passed by mesne conveyances to the defendant Lynch, and became vested in her. The plaintiffs at the time the agreement was made, were and still continue to be the owners in fee, of the several lots described therein, as belonging to and held by them.

There can be no doubt that the agreement, between Beers the grantor, and the plaintiffs, was upon a sufficient legal consideration and was valid in law. The intention of the parties in executing it is manifest. It was to prevent such a use of the premises by the owners, and those claiming under them, as might diminish their value or impair their eligibility as sites for private dwellings. Can there be any question that the courts would have enforced this agreement against Beers, had he committed a breach of his covenants by wholly disregarding its conditions and restrictions ? He could not successfully set up that the obligation of the parties, in respect to mutuality, was not exactly equal, and that therefore he was not bound.

The agreement provides that its stipulation “shall not only be binding upon the parties hereto, their heirs and successors, but that the same shall run with the land, and be binding upon all persons who may hereafter become, interested in the lands herein described, or any part or parts thereof, as owners, tenants, occupants, or otherwise, claiming under or through the said party of the second part.”

The defendant Lynch took her title expressly subject to the “ conditions and restrictions” in this agreement of Beers and the plaintiffs. It is quite likely had the contract been improperly obtained, the adequacy of the consideration would become important if either party had asked to have it rescinded. The parties who executed the indenture are bound by it, and I see no reason why such an agreement could not be binding in equity on the parties coming in as devisees or assignees with notice. It is mutual, for each proprietor was manifestly interested in securing the permanent value of his property, and in preserving the general respectability of the street, and the uniformity of the plan. The court can not enter into the question whether the consideration was equal in value to the restraint agreed upon by the parties. There are too many circumstances entering into such a calculation which can not lie accurately ascertained, and which the parties are presumed to have fixed and settled (Hitchcock v. Cooke, 6 Ad. & El. 438).

The question, to what extent and in what cases are such stipulations binding on those who take the estate directly or by derivative title, is discussed in Whitney v. Union Railway Company (11 Gray, 359). The learned judge says. “ the better opinion seems to be that such agreements are valid, and capable of being enforced in equity, against all those who take the estate with notice of them, though they may not be, strictly speaking, real covenants, so as to run with the land, or of a nature to create a technical qualification of the title conveyed by deed.” It is not material that such stipulations should be binding at law, or that any privity of estate should exist between the parties, in order to render them obligating, and to warrant equitable relief in case of their infraction (Western v. McDermot, 1 Vol. Law. Rep. Eq. cases 499; Whitman v. Gibson, 9 Sim. 196; Parker v. Nightengale, 6 Allen 341).

Where the purchaser of the fee simple entered into restrictive covenants as to the user of lands, and after-wards granted a lease which did not contain any similar prohibitions, the lessee, though he had no actual notice of the covenants, was restrained, at the suit of the original vendor, from committing a breach (Fielder v. Slater, L. R. 7 Eq. 523).

The point is (the covenant before us being clearly of the nature that it might run with the land), whether the fact that it was made by Beers with, a third person, the plaintiffs, prevents its attaching upon his own land against his grantees. The common law permits, the transfer of covenants not by direct operation of an assignment, provided they are in their nature capable of running with the land. “ The capacity of running with the land only exists when the covenant is about or affecting the land, although not directly to be performed upon it, if it tends to increase or diminish its value in the hands of the owner” (1 Smith’s leading cases, 225).

The courts in these cases clearly recognize the distinction between actions at law and in equity. In Hurd v. Curtis (19 Pickering) the covenant seems to have been treated as a purely personal one; and though it holds that an action at law will not lie as between subsequent owners of the land, the same court in Massachusetts has enforced similar covenants in equity (11 Gray, 359 and 6 Allen, 341, supra). In the late case of Cole v. Hughes (54 N. Y. 444) the action was to recover the value of a party wall built by one Dean, one half upon his lot and the other on that of one Voorhis. The latter had agreed that when he used the wall he would pay one half its costs ; his successor used the wall, and the question was, whether he was liable, and it was held that he was not; that the covenant was a personal one, and did not run with the laud. The learned judge says even if the defendant had purchased with constructive notice of the covenant, he did not become liable in an action at law upon the covenant. He cites the case of Keppell v. Bailey (2 Myh. & K. 517). Lord Collenham observes in Tulk v. Moxhay (2 Phil. Rep. 774, 11 Beav. 571): “If Keppell 0. Bailey meant to lay down that the court would not enforce an equity attached to land by the owner, unless under such circumstances as would maintain an action at law, he (the chancellor) could only say he could not coincide with it.” And in Dart on Vendors and Purchasers, 705, it is said, “ nor will equity refuse to interfere, even though the covenant may be invalid at law as creating a perpetuity, or as being in unreasonable restraint of trade.”

It would seem, therefore, upon authority, that in equity the question whether covenants run with land, or whether there be privity of estate, is of no importance. Nor can I see any reason why there should be. The doctrine rests upon the principle, that as in equity that which is agreed to be done shall be considered as-performed, a purchaser of land, with notice of a right of interest in it subsisting in another, is liable, to the same extent and in the same manner, as the person from whom he made the purchase, and is bound to do-that which his vendor had agreed to perform.

The important question is, therefore, did the defendant Lynch buy her lot subject to the covenants and restrictions in the agreement, in such a sense that. her performance of them constituted an element of the consideration between her and her vendor. In the case of De Mattos v. Gibson (4 De G. & J. 276), the principle is clearly stated: “ Reason and justice seem to prescribe that, at least as a general rule, where a man by gift or purchase acquires property from another, with knowledge of a previous contract, lawfully, and for valuable consideration made by him with a third person, to use and employ the property for a particular purpose, in a special manner, the acquirer shall not, to the material damage of the third person, in opposition to the contract, and inconsistently with it, use and employ the property in a manner not allowable to the giver or seller (Tulk v. Moxhay, Wilson v. Hunt, supra).

Whether the mode of use is impressed upon the property by the plan of one owner, from whom all later grantees derive title, or by mutual covenants of two or more adjacent owners, the equitable obligation to perform the covenants must be the same in principle. The plaintiffs and Beers being adjoining owners of the several lots, entered into a mutual agreement, among other restrictions, to build dwelling-houses fronting on a certain street creating an easement, or open court yard by setting their houses back from the street line, being for their mutual benefit to secure them permanent value, their subsequent purchasers should be bound in equity to maintain the plan, whether at law one could be sued by another for damages or not.

There are covenants sometimes entered into by owners of land with the purchasers of other adjoining land, that the former shall not be built upon or planted, so as to impose other restrictions upon the mode of enjoyment of land in favor of persons taking no property in such land. Such a contract binds the land in view of a court of equity, where the court can properly interfere, as in case a person buys with notice of the covenant, although it may not run with the land, a specific performance of it will be enforced ; or, what amounts to the same thing, the owner of the land will be enjoined from committing a breach of the covenant,; and it is not open to the objection of creating a perpetuity (Waterman v. Gibson, 9 Sim. 196; Man v. Stephens, 15 Sim. 377; Sugden on Vendors, 266, ed. 1873).

The more important question, and one on which the plaintiffs’ right to the relief asked for depends, 3’elates to the extent of the covenant against carrying on any trade or business whatever, and whether the defendants are guilty of such a breach as would entitle the plaintiffs to damages.

By the record it appears that the tenant Yates lived in the basement of the dwelling-house with his family, having in one room thereof a real-estate office, and using it for that business, with a business sign ; and that the other tenants occupied a room in said office' for receiving orders for painting to be done by them, also with a business sign ; and that no other trade or business was carried on in the building. That the entrance to this office was on Sixth avenue. Fifteen years ago, when the parties entered into the arrangement for providing for the future use and enjoyment of their several parcels of land, the improvements of the city by the erection of buildings had not extended as far in a northerly direction as Fiftieth street. This property and the surrounding neighborhood were known as, and called vacant lots. As the improvements in the city advanced on the cross-streets, they consisted chiefly, if not almost entirely, of dwelling-houses, and were held to be more valuable than buildings adapted to business purposes. The different trades and business of all kinds were confined to the more settled and populous parts of the city. The result was that real estate in the upper part of the city, improved by buildings adapted to business purposes, was less valuable than when improved by the erection of dwelling houses.

The rapid growth of the city, the improvement of its wide avenues by the comparatively easy mode of travel by the city railway, has wrought a great change not only in business locations, but in values. The Sixth avenue, among other great thoroughfares, has rapidly extended its trade and business quite beyond Fiftieth street, and is now well known as a business street. Not one of the plaintiffs’ lots lie upon this avenue. The defendant Lynch has built her dwelling-house in full compliance with the restrictions imposed,by fronting on the cross-street, with the open court, thereby admitting more light and air, and adding to the attractive character of the street. It seems to me the aim and intent of the parties was to preserve these two cross-streets exclusively for residences. The whole force of the agreement is significant of that purpose. These streets were to be built upon with dwellings, at least three stories high, the material to be of brick, brown stone, or marble. After the house is finished and occupied, the complaint is made that it has been done with the intent to use apartments on the ground floor as shops or offices for business purposes. It must be assumed, in other respects at least, the covenants have betn kept.

If the building had not been put up as required, it was the duty of the plaintiff to interfere at the time, and not wait until the defendant had expended her money. Lord Eldon says: “Every relaxation which the plaintiffs have permitted, in allowing the house to be built in violation of the covenant, amounts, pro tanto, to a dispensation of the obligation intended to-be contracted by it” (Roper v. Williams, 1 Turner & Russel R. 22).

Even if it be maintained that the covenants apply to an exclusion of business on the avenue, or in any way regulate the style of the building on the avenue, otherwise than it should be a dwelling-house and fronting on the street, it is not plain that they have been broken. Offices occupied in the same way, in the basements of the street dwellings, as these are on the avenue, could not, I think, be said to be injurious or offensive to the neighborhood. They certainly are not, on a business street.

Whether this particular covenant be too broad to be upheld in a court of equity, it is enough to say that, such as it is, the breach is not sufficient, as appears from the case, to entitle the plaintiff to recover in an action at law, if one could be maintained.

It seems impossible to disregard the very different state of affairs which has taken place in the business relations in certain portions of the city of New York during fifteen years. Contracts which may obstruct its progress in trade, commerce, and population, should be strictly interpreted. It is the duty of the court to take notice of these changes. I am of the opinion that the plaintiffs should not prevail, for two reasons: First. Equity will not interfere if the plaintiffs have suffered no damage ; and, secondly, it will not interpose when change of circumstances would render it inequitable to do so.

The judgment must be affirmed, with costs.

Sedgwick, J., concurred.


author: By the Court.—Speir, J.

text:
    AARON S. WILSON, Plaintiff, v. ADOLPH L. KING, Defendant.
    MALICIOUS PROSECUTION, AND FALSE IMPRISONMENT.
    Malice and want of probable cause must be proved to sustain ACTION FOR.
    It is well settled, that if malice had been expressly proven, that the action conld not be maintained unless the plaintiff also established that there was no probable cause foi' the arrest. If it appears that the plaintiff was wholly innocent of the charge preferred, yet his action will be defeated, if defendant proves that he had reasonable grounds to believe that plaintiff was guilty at the time defendant made his complaint, and caused plaintiff’s arrest (Seibert v. Price, 5 Watts & Serg. 438; Munns v. Nemours, 3 Wash. C. C. 37; Foshay v. Ferguson, 2 Denio, 617).
    On the review of the facts in the case at bar, the court held that probable cause for the defendant’s action was fully established, and justified the dismissal of the complaint.
    The fact that the officer arrested plaintiff without a warrant, was no ground for sustaining the action. Although no felony had in fact been committed, the officer had reasonable grounds to believe that one had been committed, and acted in good faith and without evil design, and was, therefore, authorized to make the arrest without a warrant. The question of malice and probable cause, is one of law for the decision of the court, and not one of fact for the jury (Burns v. Erben, 40 N. Y. 463; Masten v. Deyo, 2 Wend. 426).
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.

      This cause comes before the court on exceptions ordered to be heard at general term in the first instance. It is an action to recover damages for an alleged malicious prosecution and false imprisonment.
    The leading features of the case, as appears from the facts proven at the trial, were as follows :
    The defendant was doing business as a warehouseman at KTo. 400 Washington street, in this city. Merrill & Tannerhill were the owners of a quantity of cotton in this store. They gave an order on the defendant for forty-five thousand pounds which they had sold to one Menelas. The plaintiff, as foreman of one Tetter, a carman, attended to receive the cotton. It was taken out of the warehouse and put upon the scales, and sampled, and the quantity called for was answered by one hundred and two bales, which were accepted by the purchaser’s clerk, marked by him, and turned over to the plaintiff to cart away.
    Upon weighing the cotton, ten or eleven bales had been rejected by the purchaser’s clerk as not coming up to the standard. The bales that were accepted and marked were carted away, and subsequently two of the rejected bales were missed, and defendant, in looking for them, found them at Dillon’s Cotton Press, where plaintiff had brought them. Defendant applied to a police officer, but made no complaint until the police officer instructed him to do so. The plaintiff was then brought before the officer, and upon hearing both sides of the story, the plaintiff admitted that he had taken the cotton, but excused himself by claiming that without those two bales, his quota of one hundred and two bales was short.
    The plaintiff had acted as foreman in carting cotton for parties as owners, from defendant’s warehouse, but it does not appear that the parties otherwise had any business relations with each other. The defendant having lost his property, was in search of it, and acted under the advice of the police officer.

      Abbett & Fuller, attorneys and counsel for plaintiff.

      Nash & Holt, attorneys for defendant; S. P. Nash, of counsel.
   By the Court.—Speir, J.

In order to sustain this action, it was necessary that the plaintiff must, prove both malice and probable cause. I can see no proof of malice in the case. The defendant had lost his property, and all the evidence shows, that upon discovering his loss, he took such steps as any person would be expected to do to recover it. He discovered the two bales he had lost in Burling slip at Dillon’s Cotton Press, with his marks upon them, identifying them as belonging to him. He first applied to the officer to ascertain if he could stop the cotton. He is told that he could not, unless there was a complaint made. This answer was according to the fact. The plaintiff showed that when cotton was once delivered at the cotton press by the carman, he, and no one else, had any further control over it. It goes in the course of business directly to the ship after it is pressed, and is considered as shipped when left at the press. " It is a fair inference, that if the defendant could have stopped the cotton at this stage of the proceedings, lie would have done so, and there would have been no necessity in making a complaint in order to regain it. Having applied to the captain of police to aid him in securing his cotton, he relied upon his judgment, and the next step to be taken was, who and where was the party who had taken it % In order to make the complaint, this was the only course left to be adopted.

The two bales had the defendant’s marks upon them, which showed that they belonged to him ; and whoever had taken them, must be some person who had carted the cotton. The plaintiff was the. foreman, of the carman and had receipted for it, and must be the responsible person if any one was. After the officer had heard the statements of both sides, the defendant makes the complaint, and the plaintiff is arrested. How, in all this there is an entire failure of proof of malice. But it is well settled, that if malice had been expressly proven, the action could not be maintained without showing the absence of probable cause. Had the plaintiff been wholly innocent of the crime charged against him, it is enough for the defendant to show that he had reasonable grounds for believing him guilty at the time he made his complaint (Seibert v. Price, 5 Watts and SAerg. 438; Munns v. Nemours, 3 Wash. C. C. 37; Foshay v. Ferguson, 2 Denio 617).

There was abundant evidence for probable cause for the defendant’s action to justify the dismissal of the complaint. The officer into whose hands the case had fallen, acted, I think, with wise discretion and judgment. Upon hearing both sides of the matter, he heard the admission of the plaintiff that he had taken the property, and the only excuse he had to give. He heard the defendant’s statement, that it had been taken by the carman from his place without authority ; and the defendant’s identification of it. It is enough to say, without going into a particular examination of the evidence here, that the defendant had strong grounds for believing that the plaintiff had committed the offense. The case, therefore, comes within the definition of "probable cause.” He had reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.

The point is made by the plaintiff’s counsel, that there was a want of probable cause in following up the prosecution of the plaintiff after his arrest. This objection is substantially answered in the preceding review of the facts, up to the time of the imprisonment. Nothing had taken place after the plaintiff’s arrest and imprisonment which could well remove the defendant’s belief m his guilt. No sufficient explanation of the circumstances were made which was calculated to remove the “probable cause.” So far as it appears, no single fact had come to the knowledge of the officer or defendant, which tended to create a different opinion. Besides, the proceedings had acquired too much importance, to be governed or controlled by individual interest. A proper regard to the cause of public justice required, that the case should not be longer subject to the private action of the plaintiff.

There is no ground for sustaining the action because the officer arrested the plaintiff without a warrant. Although no felony has in fact been committed, if the officer had reasonable grounds to suspect that one has ' been committed, and acts in good faith, without evil design, he can make the arrest without warrant. The property was found in the possession of the plaintiff, who admitted taking it, without showing any right to do so. The court upon all the evidence in the case had the clear right, I think, to treat the question of malice and probable cause as one of law and not for the jury (Burns v. Erben, 40 N. Y. 463; Masten v. Deyo, 2 Wend. 426).

The defendant is entitled to judgment upon the exceptions.

Sedgwick, J., concurred.


text:
    WILLIAM SMITH, Plaintiff, v. CHARLES L. FROST, Defendant.
    RULINGS OF THE COURT ON THE TRIAL.
    Testimony received must be limited in its effect as provided BY SUCH RULINGS.
    Amendments to conform pleadings to proofs, when allowed.
    In this action, the form of the complaint was for the unlawful conversion of bonds of plaintiff by the defendant.
    The proofs established that a right of action existed in favor of plaintiff, by reason of a promise of the defendant, and of the connection of the latter with the company who issued the same.
    Plaintiff at the close of the trial moved to amend his complaint so as to conform it to his proofs. The court referred the plaintiff’s application to the general term, and after directing a verdict for the plaintiff, ordered all the exceptions to be heard in the first instance at general term.
    It appeared that all the testimony that established a cause of action in favor of plaintiff had been taken under the specific objections and exceptions of the „defendant to all evidence of this class, except only so far as it would tend to show notice to defendant of the plaintiff’s claim; and the court expressly ruled that it should be limited to that effect solely, and that was the clear and expressed understanding between the court and the counsel at the trial, and the trial was conducted and concluded upon that theory.
    The general term held that under such circumstances the plaintiff should not be allowed to amend his complaint so as to conform the same to the proofs, for in such case the defendant would have judgment passed against him without a hearing upon the merits. He had a right, under his objections and exceptions, and the express rulings of the court, to consider that all this testimony was received, as applicable only to the cause of action stated in the complaint, it being limited by the court to the effect, the same would have to show notice to the defendant of the plaintiff’s claim. This testimony was not received for the purpose of establishing a cause of action founded upon defendant’s promise or contract.
    Held, that the real issue between the parties had not been tried, and a new trial was ordered, with costs to the defendant to abide the event.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.
    The complaint is in form for a conversion of certain .railroad bonds with their coupons. The court directed the jury to render a verdict for the plaintiff, and assess the damages at sixteen thousand four hundred and twenty-three dollars, and ordered the exceptions to be heard in the'first instance a,t- general term.
    The plaintiff and James W. Smith, in 1857, being the owners of ten bonds of the Peoria and Oquawka Railroad Company, of one thousand dollars each, secured by the first mortgage upon the railroad, borrowed of one Benjamin F. Camp, and placed these bonds with him as collateral to the loan. In 1862, they repaid him the loan, and on calling for the bonds, they found that he had borrowed five thousand dollars upon them of the Union Mutual Insurance Company, and had pledged the bonds to that company. Camp, in the meantime,, failed to pay his debt to the company and redeem the bonds, and the Peoria and Oquawka Railroad Company became embarrassed, and made default in their interest on these bonds. The bonds and mortgage contained a clause, that in case of default of interest for a certain time, the principal should be become due.
    In December, 1862, the bond holders and other creditors entered into an agreement, for the foreclosure of the mortgage upon its road, and the reorganization of the company. In the plan for foreclosure, the defendant was one of the three trustees to purchase and reconvey the property to a new corporation organized for the purpose. As trustee, he was, ‘’to receive all the bonds and coupons of the old company, and to purchase the road under the decree of foreclosure, for the benefit of all parties interested. A decree of foreclosure and sale was obtained November 23, 1863, and the road and property was sold March 21, 1864, and purchased by the defendant Edward Weston, and Henry L. Marquand, as commissioners, agents, and trustees of The plaintiff and other bond holders of the old company, and who associated under the plan of reorganization to form the Toledo, Peoria and Warsaw Railway Company, April 18, 1864.
    The bond holders who elected to come in under the plan, were required to pay each his proportion of the amount bid for the property at the sale by the defendant and his associates, which was sixty-six dollars and sixty-six cents, on each one thousand dollar bond, and ten per cent, upon the amount of the bonds held ’ by each person, for which a new bond of the new company was issued. In March, 1864, an arrangement was entered into that the Smiths should pay the assessment of sixty-six dollars and sixty-six cents, on each of the ten bonds of the old company belonging to them, which Camp had put temporarily out of their reach, and also the ten per cent, assessment upon the whole number of those bonds, and the new company should issue their new bonds, to which the holders were entitled, and place them in the hands of the defendant as trustee for the Smiths, and that the defendant should collect or receive the coupons and interest on those new bonds, and pay them over, deliver or account for them to the Smiths. This arrangement was to continue until they could get Camp to pay his note or should pay it themselves, if they could not make him do it, so as to get the old bonds from the Insurance Company where Camp had pledged them, and thus place the matter in such a condition that the new company could close it up and finally and definitely deliver possession of the new bonds to the Smiths. Accordingly the Smiths, through the agency of the defendant, paid this percentage on the purchase, and the ten per cent, on their bonds, and thus became entitled to seventeen bonds of the new company. One of these bonds they received for the one thousand dollars, which they paid. The remaining sixteen were put into the hands of the defendant.
    The defendant regularly paid the coupons and interest on these bonds to the Smiths, until and including December, 1869. The defendant was president of the new company from its organization. The bonds were entered in the books of that company as the property of the Smiths.
    The insurance company continued to hold Camp’s note, since March, 1858, and no interest had been paid on it since December, 1865, and repeatedly demanded payment of Camp. The defendant negotiated with the company to buy Camp’s note, and the company had the note protested on March 4,1870, and next day sold the bonds to defendant at private sale for five thousand dollars. This left one thousand four hundred dollars still due from Camp on the note. The plaintiff tendered to the defendant the amount he had paid the insurance company, with interest, and demanded the bonds. The defendant refused to surrender them.
    The interest of James W. Smith was assigned to the plaintiff before suit. The suit was then brought. The only testimony given by the defendant was to show that the Smiths in January, 1866, took a mortgage from Camp on Westchester County bonds to secure themselves from loss by reason of Camp’s having failed up to that time to redeem the bonds of the Smiths, which he had wrongfully pledged in 1858. The case was then submitted.
    The defendant’s counsel moved to dismiss the complaint. on the ground that no cause of action alleged in the complaint had been made out by proof. The plaintiff’s counsel applied to conform the pleadings to the proof, if necessary. The court referred the plaintiff’s application to the general term, and denied the defendant’s motion, to which he excepted.

      Hammond & Stickney, attorneys for plaintiff; James Emott, of counsel.

      Marsh & Wallis, attorneys for defendants; Luther R. Marsh, of counsel.
   By the Court.—Speir, J.

The defense setup on the trial was, that the proof did not conform to the complaint. The defendant’s counsel at the close of the trial moved to dismiss the complaint, on the ground that no cause of action alleged in the complaint had been made out by the proof. It is not claimed that no cause of action had been shown.

The objections to evidence offered during the trial were not placed upon the ground that it was inadmissible under the complaint, but that it was immaterial.

The defendant’s counsel claims that no evidence was given in this case relating to any right of action existing by reason of any alleged promise of the defendant, in regard to the bonds, or out of the defendant’s connection with the railroad company, except such evidence as was admitted solely on the question of notice to the defendant of plaintiff’s alleged ownership. And further, even if proof had been admitted generally, and not limited as he claims it was, yet the court would not, even if the evidence had made out a case, have permitted the plaintiff in the action for a tort, to have recovered on any promise or obligation growing out of the defendant’s dealings with the plaintiff.

This brings us at once to the complaint and the proofs. Passing for the moment the technical question of the form of the action, whether in tort or contract, the defendant would become liable equally to the the plaintiff if the plaintiff was in fact the real owner of the sixteen first mortgage bonds of the Toledo and Warsaw Railway Company, with the coupons attached. If the defendant after proper demand unlaw-t, fully converted them to his own use, the plaintiff would be entitled to their value after proof of the same. If the defendant held them as plaintiff’s agent, and refused to deliver them on application, he would be liable to the plaintiff in the same way and for the same amount. The allegation in the complaint that the defendant wrongfully possessed himself of the ten mortgage bonds of the Peoria and Oquawka Railroad Company, may be stricken out on motion, as redundant, when it appears.

Those bonds became discharged by the foreclosure of the mortgage, and I think it is plain enough the defendant acquired a perfect title to them by his purchase from the company. The company had good right to sell these bonds in open market, or at private sale, for whatever'sum they saw fit. The pledgor, Camp, could only object to such a sale. How while the defendant held these bonds lawfully, I think he treated them as belonging to the plaintiff, and became his agent to receive from him his percentage and assessment; and he received six hundred and sixty-six dollars and sixty-six cents to enable the plaintiff to participate in the new company, and undertook to recover from the new company the bonds, and hold them for the plaintiff. The defendant has not any title to the new bonds ; he holds them for the plaintiff. If it became necessary to pay the insurance company to recover the old bonds from them, and surrender them to the new company, he, in paying that five thousand dollars as plaintiff’s agent in the prosecution of his trust, and the only interest that he can have is to be reimbursed for the money he has paid out. This money has been tendered to him. He simply surrendered ten of the old bonds, and obtained the issue of the new ones. Being coupon bonds, title is acquired by the party purchasing them.

Thus far, the facts have been stated, deduced from the evidence presented under exceptions taken on the trial, for the purpose of showing that the defendant acquired title to these bonds by the purchase he made of them. It is, however, proper to state that all the testimony taken, showing or tending to show, that a right of action exists by reason of any alleged promise of defendant, in regard to the bonds, or out of his connection with the railroad company, was taken under the specific objections of the defendant’s counsel, and his exceptions to the ruling of the court admitting such testimony. The objections were, however, taken persistently at the out-set of the trial to all evidence of this class only so far as it would tend to show notice, and it was stated by the learned judge “that he would limit it to that.” This was, as appears from the case, the clear understanding between the court and the defendant’s counsel. Although it is quite apparent that the objection to this evidence was put upon the ground that it was not admissible in an action for conversion, yet the trial being conducted upon that theory to the end, should the court decide at general term that the pleading should be so amended to conform to the proof, the d f ndant would have judgment against him without being heard upon the merits, which he has a right to consider as secured to him by his objections and exceptions, and upon the limitations within which the testimony was restricted by the court. In this we think there was error. The result of the trial was, that a large amount of testimony was taken, which in view of the court made out a clear case for the plaintiff, and which up to the end of the trial was received, as the defendant had a right to suppose, as having no application to the question of the defendant’s alleged promise in regard to these bonds, or ont of his connection with the railroad company. The real issue between the parties has not been tried.

There should be a new trial, with costs to the defendant to abide the event.

Sedgwick, J., concurred.


text:
    PETER McQUADE, Plaintiff and Respondent, v. JESSE R. IRWIN, Defendant and Appellant.
    PROMISSORY NOTE,—BONA FIDE HOLDER, &c.
    The holder of a negotiable promissory note is entitled to protection against latent equities existing between the parties to the paper, when he became the holder, only when he has parted with something of value in money or property for the note, at the time he received the same; or he must have incurred some responsibility or liabilty, or parted with some right on the faith of the note (Coddington v. Bay, SO Johns. 637, to the latest case of Turner ». Treadway, 63 N. 7. 650).
    The case at bar, where the plaintiff received the note for an existing antecedent debt, does not fall within this well and long established rule.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.
    The action is on a promissory note described in the complaint.
    The defense is want of consideration, the note having been given in settlement of an antecedent debt, and that the party who received it from the defendant fraudulently transferred it to the plaintiff.
    The court directed the jury to find a verdict for the plaintiff for the amount of the note and interest, to which the defendant excepted. The defendant appeals from the judgment entered under the direction of the court.

      William T. B. Milliken, for appellant.

      William P. S. Melvin, for respondent.
   By the Court.—Speir, J.

The complaint alleges that the firm of Beford & Company after the endorsement of the note by the maker and by Beford & Company, delivered it to the plaintiff, who became the lawful holder and owner of the note ; and when it became due and payable it was presented for payment, and payment refused. The answer denies that the defendant delivered the note to Beford & Company, but does not deny that they delivered it to the plaintiff after it was endorsed, and before maturity. It denies the plaintiff’s ownership, and sets up that the maker delivered the note to Beford for the purpose of having it discounted; and that Beford promised and agreed with the maker to return it or the proceeds thereof to him, which he failed to do, but wrongfully converted it to his own use ; that if it was transferred to the plaintiff, it was fraudulent and void, and was received by the plaintiff with full notice that the note was the property of the defendant.

The plaintiff testified that the note was received at its maturity from Mr. Beford, of the firm of Beford & Company, for merchandise sold and delivered by him to them; that the goods were sold from time to time ; that it was an open account; that the goods were not delivered upon the note, but upon the personal credit of Reford & Company, who settled their account by giving the note, which covered just the amount of the bill.

The respondent’s counsel contends that the facts show an absolute payment of an antecedent, debt, and that the plaintiff, in taking the note as a security, must be looked upon as a bona fide purchaser for value. The general rule laid down seems' to be this: that where negotiable paper is transferred for a valuable consideration, and without notice of any fraud, the right of the holder shall prevail against the true owner.

What is that valuable consideration in the rule, which shall protect the holder as against the maker of the note? Is this general rule satisfied, assuming, as counsel do, that this precedent debt has been paid by taking the note ? The authorities, I think, abundantly show that is not the rule in this state. In the leading case of Coddington v. Bay (20 Johns. 637), it was held that the holder, to be protected against latent equities, must have parted with something of value at the time the note was received, in mqney of property ; or must have incurred some responsibilty or parted with some right on the faith of the note. The holder in this case has no superior equity, because his antecedent debt was paid by his taking the note, when he made no advances nor incurred any responsibility on the credit of the paper he received. His situation is not worse, if the note be not paid at maturity, than it was before he received it. He has lost nothing, parted with nothing of value, and assumed no responsibility.

As a matter of principle, the right to hold property in any case against the owner, is an exception to the general rule of law. Commercial paper obtained from the maker and owner, without notice of want of consideration and latent existing equities, is an exception to tht general rule of law, nn6 commercial policy only permits it. The reason of the rule is, that the innocent holder having sustained loss by giving credit to the paper, and paid a fair consideration, is entitled to protection. Paying an existing debt is certainly no valuable consideration. Had the plaintiff given to the party owing the debt such an obligation as would legally have discharged the debt, so that it could not be enforced, he would have parted with value, and the consideration would have been sufficient.

As it regards the indebtedness of Reford & Company to McQuade, his position was the same after as before he accepted the note. The note was valueless in the hands of his creditors, and remains so in his hands, because he gave nothing whatever -for it. His right to prosecute this firm for his claim was not at all impaired. He comes into court claiming judgment against the maker, upon this note, with the endorsement of the parties, who, according to the evidence, have fraudulently appropiated it to their own use. I see nothing to prevent his recovering on this note against these endorsers.

The rule as laid down in Coddington v. Bay has been enforced in this state up to the latest case reported, of Turner v. Treadway (53 N. Y. 650); Rosa v. Brotherson (10 Wend. 85); Young v. Lee (2 Kern. 551); Boyd v. Cummings (17 N. Y. 101).

The judgment must be reversed, with costs.

Sedgwick, J., concurred.


author: Bt the Court. —Speir, J.

text:
    ABRAHAM BALDWIN, et al., Plaintiffs and Respondents, v. SAMUEL S. TALMADGE, Defendant and Appellant.
    SPECIFIC PERFORMANCE OF CONTRACT FOR THE SALE OF REAL ESTATE.
    Jurisdiction or supreme and superior court.

      Where the eont/raet by its terms was to be performed in New Tori: city, and the lands which were the subject of purchase in the contract, were situated in another State,

    The superior court, asa court or equity, has the same jurisdiction as the late court of chancery of this State, in actions to compel the specific performance of contracts for the purchase and sale of real estate, where the parties to the action have been brought within its jurisdiction by service of process or otherwise.
    The late court of chancery exercised such a jurisdiction (see the cases cited in the points of counsel and the opinion of the court).
    The provisions of the code are not applicable, when land which is the subject of the action lies out of the state (Newton v. Bronson, 13 N. T. 587).
    Before Monell, Ch. J., Curtis and Speir, JJ.

      Decided May 3, 1875.
    The action is brought to compel defendant to perform a certain agreement to purchase real estate, and to pay the purchase money therefor.
    The complaint sets forth the terms of sale, the failure of defendant to comply, waiver of deed by defendant, and the refusal to pay the purchase money.
    The answer sets up want of title to the property ; that the sale was fictitious ; that defendant’s bid was for six lots laid out on a map as being one hundred and fifty-five feet on one side, and one hundred and fifty feet on the other; that he has tendered the amount of his bid to plaintiffs and refusal.
    The case was tried by the court without a j ury. The court found that the defendant should perform his contract, and gave judgment for the plaintiff. Defendant appeals.
    The principal question in the case was, that of the jurisdiction of the court. The counsel’s points on that subject are inserted.

      S. B. Brague, attorney for appellant; Charles S. Truax, of counsel:
    I. The court has no jurisdiction of the subject matter of the action. The land is situated in the state of New Jersey; the contract was made in the state of New Jersey; the defendant resides in the state of New Jersey. It is admitted that the jurisdiction of this court is as fall, ample, and complete as that of the supreme court. It is claimed that no case can be found where courts have made decrees affecting land, unless the land was within the jurisdiction, or some evidence of title, or the contract was made within the jurisdiction, or the parties to be affected were residents within the jurisdiction (Ring v. McCoun, 3 Sand. 524). The question in Williams v. Fitzhugh (37 N. Y. 444) was, will the courts of this state entertain a bill to declare void and compel the cancellation of a mortgage of land lying in another state, and executed there, in pursuance of a contract entered into in this state to secure loans made and payable in this state. The whole contract was entered into and to be performed in this state (p. 451). In Newton v. Bronson (13 N. Y. 587), the parties were residents of this state, and subject generally to the jurisdiction of its courts (p. 591). The judgment in Gardner v. Ogden (22 N. Y. 331), was that the defendants pay to the plaintiff fifteen thousand dollars, or, instead of paying that sum, Smith, one of the defendants, if he should elect so to do, might re-convey to the plaintiff such portions of the lots as he bad not sold, and the court of appeals affirmed this judgment. All the parties in Bailey v. Ryder (10 N. Y. 363), lived in this state, and the court held that they had power to compel a judgment debtor to convey to a receiver lands situate in another state for the benefit of his creditors. The case of Dale et al. v. Roosevelt (5 Johns. Ch., 174), does not touch the question. In that case, the executors of Robert Fulton prayed for an injunction to stay a suit at law upon a contract entered into by said Fulton to buy certain lands in Ohio. It does not appear where the contract was made, or in what, state the action on it was brought; but the fact is, that both Fulton and Roosevelt were inhabitants of this state, and probably the action at law was brought in this state, and the contract made here. Nothing was said by the chancellor (Kent) as to jurisdiction ; this case is not an authority on that point. Ward v. Arredondo holds that jurisdiction may be upheld whenever the parties or the subject, or such a portion of the subject, are within the jurisdiction, that an effectual decree can be made and enforced so as to do justice. The facts of the case are ¡these :—The plaintiff, a citizen of New York, had entered into a contract with the defendants in Havana for the purchase of a large tract of land in Florida, and had paid a large amount on account of said contract; the defendants had transmitted to the defendant Thomas, at the city of New York, a deed executed by them, with instructions to Thomas not to deliver it unless he was paid a further sum, and, if he was not paid that sum, to return the deed. The plaintiff prayed, amongst other things, that Thomas be restrained from sending the deed out of jurisdiction; Chancellor Walworth held that the deed was subject to the jurisdiction of the court, but said that his opinion was to be considered a provisional one, and as applicable to the state of the question as represented on a motion to dissolve the injunction, in which some weight may be allowed to the circumstance that a dissolution of the injunction would, in effect, be final. In the case of Mead v. Merritt (2 Paige Ch. 402), the same chancellor held that where a party is within the jurisdiction of the court of chancery, so that on a bill properly filed here this. court has jurisdiction of the person, although the subject-matter may be situated elsewhere, it may, by the ordinary process of injunction and attachment for contempt, compel him to desist from commencing a suit at law, either in this state or in any foreign jurisdiction. And (this is obiter) it may in the same manner compel him to execute a conveyance or release of property in another county. But he dissolved the injunction which had been issued restraining the. defendants from prosecuting their action in court. Mitchell v. Bunch (2 Paige Ch. 606) was an application to discharge a ne exeat. Chancellor Walworth said that it was not necessary to inquire whether under the 39th section of the title of the revised statutes, which relates particularly to this court and its proceedings, real property out of the jurisdiction of the court can be applied in satisfaction of the complainant’s judgment. He further said that, independent of the statute, this was a case in which a court had jurisdiction to compel a debtor, whose body is exempt from execution at law, to discover his property, so that it may be applied in satisfaction of his just debts. Whether the defendant has any part of his property vested in lands, &c., can not be ascertained until the coming in of the answer. It will then be time to raise the objection that this court can not make a decree concerning real estate which is situate in a foreign country. In Sutphen v. Fowler (9 Paige Ch. 280), the same chancellor held that the court of chancery had jurisdiction to decree the specific performance of a contract for the sale of lands situate in another state where the defendant is within reach of its process. In that case the defendant was domiciled within the state, and it is fair to infer from the statement of facts that the contract was made here. In Shattuck v. Cassidy (3 Edw. Ch. 152) the contract was made here, and the defendant had voluntarily submitted to the jurisdiction of the court, and came within the jurisdiction voluntarily to be served with process. The cause of action in De Klyn v. Watkins (3 Sandf. Ch. 185), arose in this state ; all of the defendants were served in the state ; all of the defendants except one, resided in the state, and part of the land was within the state. In the late case of Morris v. Chambers (29 Beavan, 253), a suit to enforce a personal demand on property in a foreign country, both parties residing in England, and the defendants had been served in England, Lord Romily said, “ that the bare statement of such a proposition requires that some special state of circumstances should exist in order to enable the court to give any relief of this description.” He did not pass upon the single point at issue in this case, but decided against the plaintiff on other-grounds. In the later case of Cookney Anderson (31 Beavan. 452), the question of the jurisdiction of the court of chancery was fairly before the court. Lord Romily said, “ that if it were not for the question of jurisdiction, on proof of the allegations of the bill, he would not have hesitated to have made a decree in accordance with the prayer.” “That the principles which govern the jurisdiction of the court is analogous to that of the civil law ; that these consist of three circumstances, any one of which will give jurisdiction ; the first is where the domicile of the defendant is within the county ; the second, where the subject-matter in dispute is within the jurisdiction ; and the third, where the contract in question was entered into within this jurisdiction and he defines jurisdiction to be “the topographical limits, within which, the compulsory process of the court operates to compel obedience to its decrees and orders.” He further ¡said, “ that if he should give plaintiff a decree, the only way in which it could be enforced would be to proceed in Scotland—where the land was—as in a case of a foreign judgment.” He said, “that he could find no case which would maintain such an exercise of the jurisdiction of the court; and sustained the demurrer to the jurisdiction.” The case was affirmed by the lord chancellor (see Cooking v. Anderson, 1 De G. Jones & Smith, 365; Huenermund v. The Erie Railroad Company, Daily Register, October 27, 1874).

      Isaac L. Miller, attorney for respondents:
    I. In the estimation of plaintiff’s counsel, the main if not the only question to be determined on this appeal is : Has this court jurisdiction of this action % In connection with that proposition of law, certain undisputed facts are to be considered, viz. : that defendant signed a certain agreement, which by its terms was to be performed in New York city ; that defendant was served with a summons in this action, and that he transacts business in New York city ; that two of the plaintiffs reside in and four of them do business in this city. Starting with these facts, the following authorities are submitted as to jurisdiction. The doctrine is that the court having jurisdiction of the person of the defendant will, by its process of injunction and attachment, compel him to do justice, by the execution of such conveyance as will affect the title of the property in the jurisdiction within which it is situated (Newton v. Bronson, 3 Kernan, 587; see 3 Abb. Pr. 20, note). It is perfectly well settled that the supreme court has jurisdiction to decree the ¡specific performance of a contract for the purchase of lands lying in another state. Such a jurisdiction existed in the court of chancery and passed to the supreme court by the provisions of the present constitution (Massie v. Watts, 6 Cranch, 148; Shattuck v. Cassidy, 3 Edw. C. R. 152; Ward v. Arrando, 1 Hopk. C. R. 213; Mead v. Merritt, 2 Paige, 402; Mitchel v. Bunch, 2 Id. 606; Sutphen v. Fowler, 9 Id. 280; Gardener v. Ogden, 22 N. Y. 327; Bailey v. Ryder, 10 Id. 363; Fenner v. Sanborn, 37 Barb: 610; Cleveland v. Burrill, 25 Id 532; Myers v. De Mier, 4 Daly, 343). By the act of 1873 (Laws of 1873), chap. 239, the superior court, and each of the judges thereof, “ has henceforth in court and out of court, power, authority and jurisdiction, co-extensive and concurrent with that of a justice of the supreme court, in court or out of court, as the case may be, in all actions and special proceedings of a civil nature, except those pending in the supreme court.”
   Bt the Court. —Speir, J.

The learned judge has found all the issues of fact, made by the pleadings in favor of the plaintiffs ; and it is quite clear that the-evidence fully justifies his conclusions.

The question principally discussed by the counsel, is whether the court has jurisdiction of the subject-matter of the action. The land was situated in New Jersey ; the contract was made in New Jersey ; the defendant, resides in the state of New Jersey. The contract was to-be performed in the city of New York. Counsel for the-appellant concedes that this court has as full and complete jurisdiction as that of the supreme court. This-jurisdiction, moreover, is established by the act of 1873,. chapter 239.

It will not be denied but that such a jurisdiction existed in the late court of chancery, nor that the same-passed, to the supreme court by the provisions of the-present constitution. In this respect the jurisdiction of this court can not be questioned. That concession could not be avoided consistently with a settled course of adjudications. The appellant’s counsel claims that the courts have never made decrees affecting land, unless the land was within the jurisdiction, or some evidence of title, or the contract was made within the jurisdiction, or the parties to be affected were residents within the jurisdiction.

A court of equity has uniformly decreed the performance of the sale of lands lying in another state, where the party who is to make the conveyance is within the jurisdiction of the court, and has been served with process, and is therefore competent to make a decree respecting the delivery of the deed according to the contract of sale, to be enforced by process in personam (Shuttrick v. Cassidy, 3 Edw. Ch. R. 152; Sutphen v. Fowler, 9 Paige, 280).

It also has power to compel a judgment debtor residing out of the state, after obtaining jurisdiction by process, to execute a conveyance of lands in another state for the benefit of creditors (Bailey v. Rider, 10 N. Y. 363).

It is enough to say that the provisions of the code are not applicable, when land which is the subject of the action lies out of the state (Newton v. Bronson, 13 N. Y. 587).

The judgment should be be affirmed, with costs.

Monell, Ch. J., and Cuktis, J., concurred.


text:
    IGNACIO F. ALFARO, Plaintiff and Appellant, v. STRATFORD P. DAVIDSON, Defendant and Respondent.
    ENTRY OF JUDGMENT—STAYING SAME.
    Has the court the power to suspend the entry of judgment, after a trial and verdict, except in the cases named in § 265 of the code ?

      Meld, That the court has the necessary control over its judgments, and that in the exercise of a sound discretion, it may suspend, vacate or amend them. This power is incidental, and necessary to the orderly and equitable administration of justice.
    Before Monell, Ch. J., and Speir, J.

      Decided May 3, 1875.
    Plaintiff obtained a verdict for five hundred dollars. Defendant moved for a new trial on judge’s minutes. The motion was denied; a stay of all further proceedings on the verdict was granted for thirty days. Defendant appealed to the general term from the order denyingmotion for a new trial. The defendant then moved on affidavits for an order to stay proceedings on verdict, until decision be had by the general term on the appeal.
    An order was made at special term, staying proceedings on defendant depositing eight hundred and fifty dollars in United States Trust Company, to the credit of the act to abide decision on the appeal.
    The plaintiff appeals from theaorder.

      Coudert Brothers, for appellant.

      S. F. & F. H. Cowdrey, for respondent.
   By the Court.—Speir, J.

The appellant objects to the order upon the ground that the court had no power to suspend the entry of judgment. That in only two cases does the law invest the court with that privilege, viz.: Where exceptions are ordered to be heard in the first instance at the general term ; and where a verdict is directed, subject to the opinion of the court at general term, under the 265th section of the code of procedure.

The case of Cobb v. Cornish (16 N. Y. 604) is relied on as recognizing this limitation. Ido not so understand that decision. What that case decides is, that the proceedings upon a trial at circuit are reviewable, in the first instance, at general term, in only two cases : First, upon a motion by the unsuccessful party for a new trial, upon exceptions, by the order of the judge who tried the cause. Second, when there is an uncontraverted state of facts, and the case presents only questions of law, and the judge directs a verdict subject to the opinion of the court. The question of power in suspending the entry of a judgment in any case is not discussed. The plaintiff in .the case had a verdict which the judge directed to be taken, subject to the opinion of the court at general term ; and the court at general term rendered judgment for defendant. The court of appeals reversed the judgment as for a mis-trial and granted a new trial, though the judgment appeared from the case to be correct upon the merits.

Chief Justice Oakley, in Bacon v. Reading (1 Duer, 622) on an application to set aside a judgment for irregularity, which had been entered (in a similar case), after.the time staying all further proceedings on the verdict had expired, refused upon the ground that the judgment was entirely regular. It is quite evident from the logical deductions of the learned judge, had the judgment been irregularly entered it would have been set aside, and the entry suspended.

All the case in Devoe v. Hackley (in 3 Robt. 679) decides is that the 265th section of the code confines the power of the judge who tried the cause over the disposition of the exceptions, and judgment to the time of the trial. After that, he has no more power to make an order in the case as to the hearing of the cause, than any other judge.

I am not aware, that it has ever before been held that the court has not the necessary control, under the exercise of a sound discretion, over its judgments in suspending the entry of them, vacating or amending them. The power is incidental, and necessary to the orderly equitable administration of justice.

The order appealed from should be affirmed, with costs.

Monell, Ch. J., concurred.


author: By the Court.—Speir. J. Moxell, Ch. J. (concurring).

text:
    KATE HISSONG, by HER GUARDIAN, PETER HISSONG, Plaintiff and Respondent, v. WILLIAM HART, Defendant and Appellant.
    EXONERETUR OF BAIL.
    Application for, too late after the bail had become charged. The return of the sheriff can not be questioned in an action against bail, and, therefore, can not be questioned on a motion to discharge the bail.
    Before Monell, Ch. J., and Speir, J.

      Decided May 3, 1875.
    This is an application by the bail of the defendant for an order exonerating them from liability.

      Lansing & Lambrecht, counsel for bail.

      W. H. & D. M. Van Cott, counsel for plaintiff.
   By the Court.—Speir. J.

Judgment was recovered November 21, 1873, against the defendant, and an execution against the defendant was issued October 9, 1874, to the sheriff, which by section 290 of the code is returnable in sixty days. The bail surrendered the defendant to the sheriff, January 11, 1875, more than a month after the return day of the execution, and the defendant, on the 15th of said January, gave bail to the sheriff for the limits, and on the 20th of January the sheriff returned the execution “ defendant not found.” January 22, 1875, the plaintiff sued the bail, who now apply for an exoneration.

This case has been decided by the special term on two occasions on substantially the same facts, and has been fully examined by two of the learned judges of this court. 1 fully concur in their conclusions, and am in favor of affirming the order, with costs.

Moxell, Ch. J. (concurring).

The return of the sheriff, “ not found,” authorized the action against the bail; and it was too late to apply for an exoneretur after the bail had become charged (Code § 188). It seems the return of the sheriff can not be questioned in the action against the bail (Cozine v. Walter, 55 N. Y. 304). It, therefore, can not be, in a motion to discharge the bail. The remedy is by action against the sheriff for a false return.

I concur in affirming the order, with costs.


author: By the Court.—Monell, Ch. J.

text:
    JAMES PATTERSON, Plaintiff and Respondent, v. CHARLES STETTAUER, and others, Defendants and Appellants.
    reference—compulsory.
    I. Motioh fob, what hot ah ahswee to.

      a. Fraud—the fact that the answer presents a' question of fraud for trial, is not a sufficient- answer.

      b. Difficult questions of law involved.

    1. An affidavit made by the attorney and counsel of the p^rty opposing the motion, stating generally that difficult questions of law are involved, is not sufficient.
    1. The questions of law expected to arise must be pointed out specifically, and in such manner as to enable the court to determine whether they are of any real difficulty.
    Before Monell, Ch. J., and Freedman, J.

      Decided June 7, 1875.
    Appeal from an order of reference.
    The action was for the sale and delivery under a special contract “of as many pounds of fresh beef,, net weight on the block, as may be called for by the government commissary.” The contract fixed the. price per pound, and the terms and manner of payment.
    The complaint alleged the delivery between February, 1868, and May, 1868, of six hundred and forty-seven thousand five hundred and seventy-eight pounds,, and claimed to recover a balance of seventeen thousand three hundred dollars and nine cents.
    ' The answer of the defendants denied and put in issue the number of pounds of beef alleged to have been delivered.
    And for a further defense it alleged in bar, “that after the delivery by the plaintiff to the defendants of all the beef ever delivered by him under the contract set forth in the complaint, and after the plaintiff had dfawn all the drafts which he ever did draw upon CL S. Stettauer & Co., for or on account of the beef, or payment of the beef delivered by him under the said contract, and after all the said drafts were past due, and when the plaintiff was entitled, if ever he was entitled to commence this action, and to recover of the defendants upon and for the cause of action set forth in the complaint, and on or about April 29, 1870, the plaintiff commenced an action in this court against the defendants upon and for a part of the same cause of action,, that is to say, to recover of these defendants the sum of eleven thousand six hundred and forty dollars and twenty-five cents, being the aggregate amount of five drafts alleged in the complaint in that action to have been drawn by him upon C. S. Stettauer & Company, at twenty days sight, in payment of beef delivered by the plaintiff under the said contract, and in conformity therewith, and endorsed as correct by the commissary agent named in the said contract, and presented for acceptance and payment to them, and which they had refused to pay; that these defendants appeared and defended the said action, and the same was pending when this action was commenced, and that such proceedings were had therein ; that after this action was commenced, and on October 21,1874, judgment was recovered and entered therein, in favor of the plaintiff and against the defendants, upon and in conformity with the report of a referee to whom the same was referred for trial and determination, for the sum of five thousand and ninety-nine dollars and seventy-nine cents damages, and nine hundred and eighteen dollars and eighty cents costs, being the amount of one of the last named drafts, which was dated May 1,1868, and was for the sum of three thousand five hundred and five dollars and ninety-five cents and interest thereon, the said referee having in his report therein, decided and determined that the plaintiff was not entitled to recover against the defendants, for or on account of the four other drafts set forth in the complaint in that action, and amounting in the aggregate to eight thousand one hundred and thirty-four dollars, and being all dated April 23, 1868.”
    The separate items of delivery numbered upwards of sixty.
    The plaintiff moved for the reference upon the pleadings, and an affidavit that the trial would require the examination of a long account.
    The defendants insisted that difficult questions of law would arise, and that there was a question of fraud raised by the answer.
    The motion to refer was granted, and the defendants appealed.

      A. R. Dyett, for appellant.

      Elihu Root, for respondents.
   By the Court.—Monell, Ch. J.

The objection that the defendant’s answer presents a question of fraud, is disposed of by Welsh v. Darragh (52 N. Y. 590). It is there held, that if the plaintiff’s cause of action is referable, it can not be made non-referable by the defendant’s answer.

The only remaining objection is, that difficult questions of law will arise, which under the exception in the code, renders the action non-referable (Code % 271).

The court can not in any case direct a reference, ‘‘where the investigation will require the decision of difficult questions of law;” but the party alleging that such questions will arise, must present the points of difficulty clearly and distinctly ; for the court must be satisfied that they are questions of real difficulty. And it is not enough that the party or Ms attorney or counsel allege it generally (Anonymous, 5 Cow. 423; Shaw v. Ayres, 4 Id. 52; Lusher v. Walton, 1 Caines, 149; Salisbury v. Scott, 6 John. 329).

The defendants have not complied with these requirements ; and we can not determine, from the affidavit of their counsel, what questions of law he claims will arise. After stating the proceedings in, and the trial,of another action between the same parties, in which certain questions of law were discussed and decided, he says : “ On the trial of this action important-questions of law will arise in addition to the important and difficult questions of law which arose upon the said reference, and which were argued, according to my present recollection, for nearly two entire days before the referee, in addition to voluminous briefs submitted by both parties ; and other questions of law will arise upon the trial of this action upon the defense set forth in the answers of the defendants in this action, as by reference thereto will more fully appear.”

I do not think we are required to carefully examine the pleadings to see what, if any, questions of law, difficult or otherwise, may be raised upon the defense set up. Such questions, if they exist, should be pointed out, that we may see what the party relies on, and whether they are of any real difficulty.

As sole referees are now almost invariably members of the legal profession, they are, perhaps, as competent to determine even difficult questions of law, as the court. Besides, the ample remedy by appeal to correct errors is another and a sufficient protection.

I am of opinion the order should be affirmed, with costs.

Freedman, J., concurred.