author: By the Court—Monell, J.

text:
    John F. Dustan, Plaintiff, v. Alexander McAndrew et al., Defendants.
    1. Under a contract to purchase a certain quantity of merchandise within a specified period, at the purchaser’s option, if he refuses to perform it within the time fixed, the remedy is two-fold, either to hold the goods subject to his order and at once sue him for the contract price, or to sell them after notice to him for the best price which can be- obtained, and sue for the difference between that and the contract price; but in adopting the latter course, the vendor is not bound to sell immediately, but may wait as long as he chooses to take the risk of the purchaser's solvency, holding them meanwhile subject to the purchaser’s order on his making payment.
    2. After such a sale, on notice to the purchaser, the measure of damages in an action against him for breach of the contract, is the difference between the best price that could be obtained at the sale, and the contract price,with interest; the market price on the latest day fixed by the contract is immaterial. *
    3. Where a contract for the sale of merchandise provides that it shall be subject to the inspection of one of the vendors, or some other person mutually satisfactory, but does not make the inspector’s decision conclusive on the parties, it is not essential that previous notice of the inspection should be given to the purchasers, and they cannot refuse to perform the agreement . merely on the ground that they are not satisfied with the inspection.
    4. Where one holding an executory contract for the sale to him of merchandise, assigns it to third persons, and the vendor in the contract tenders performance directly to the latter, a demand by them for the performance of a condition precedent on the part of the vendor, must be made upon the vendor, and not alone upon the assignor of the contract.
    (Before Robertson, White and Monell, J. J.)
    Heard, November 12, 1862;
    decided, January 5, 1863.

      The exceptions taken upon the trial of this cause, before Mr. Justice Moxell and a Jury on the 27th of March, 1862, were directed by the Court to be heard, in the first instance, at the General Term, and judgment in the meanwhile to be suspended.
    In August, 1860, the plaintiff made a contract with the Messrs. Browns, to purchase from them a quantity of hops at 17 cents per pound, deliverable at the “ option ” of the Browns during the months of October and November of that year, subject to the inspection of J. S. Brown, (one of the vendors,) or other mutually satisfactory. The terms were “ cash on delivery.” On the 7th of September, 1860, the plaintiff sold the contract to the defendants (who were A. McAndrew and Samuel Wann) upon condition that they should fulfill the conditions of the contract, and pay to the plaintiff, in addition, on delivery of the hops, ten and one-half cents per pound. The Browns were not parties to the transfer of the contract, and never released the plaintiff.
    On the 28th of November, 1860, the Browns addressed a letter to the plaintiff, saying:
    “ We will deliver from stores Nos. 61 Cedar street, 32 “ Broadway, 41, 46 and 52 Water street, and 68, 80, 80¿ “ Pearl street, in the City of New York, the 100,000 “ pounds of hops, pursuant to your contract with us, dated “ 24 August, 1860, on Friday, the 30th day of November, “ instant.”
    On the same day the plaintiff inclosed the foregoing letter to the defendants, with the following note :
    “ I beg to inclose a letter from Messrs. J. S. & W. Brown, notifying their readiness to deliver the 500 bales of hops, purchased of them and resold to you, of which please to take notice.
    “ Yours, truly,
    “ JOHN F. DUSTAN.
    '* To Messrs. McAndrew & Wann.”
    On the same day the Browns sent the following letter to the defendants:

      “ Hew York, Hov. 28,1860.
    “ Messrs. MoAndrew & Warn :
    “ Gentlemen — We will deliver from the stores, Ho. 53 Cedar street, 32 Broadway, 41, 46 and 52 Water street, and 68, 80 and 80£ Pearl street, in the City of Hew York, the 100,000 pounds of hops, pursuant to contract of John F. Dustan with us, dated August 24th, 1860, on Friday, the 30th day of Hovember, instant.
    Yours, &c.,
    “ J. S. & W. BROWN,
    “ 22 Water street.”'
    Ho answer to their letters was received, or communication had with the defendants in respect to them until the 30th of Hovember, when the plaintiff called on them and notified them that the hops were ready for delivery, and requested them to comply with their Contract, take delivery of the hops, and pay for them. They did not do so. The plaintiff paid the Browns the contract price of the hops, and on the 24th of December took possession of them. On the 24th December, the plaintiff sent the defendants the following letter:
    “ 68 Beaver Street, )
    “ New York, Dec. 24th, 1860.)
    “ Messrs. McAndrew & Wann :
    “ Gentlemen — The 100,000 lbs. hops mentioned in contract of J. S. & W. Brown with me of 24th Aug., 1860, and in contract of yourselves with me, of 7th of Sept., 1860, are now at the store Ho. 4 Bridge street, awaiting the fulfillment by you of the terms of your contract, and I hereby tender to you the said hops, and demand from you the payment of the sum of $27,500, the amount of such contract price. Unless you comply with the terms of said contract, on or before the 26th day of December inst., I will proceed to sell the same on your account, and hold you for any deficiency.
    “ Your obed’t serv’t,
    “ JOHN F. DUSTAN.”

      The introduction of this letter was objected to by the defendants’ counsel. The objection was overruled and the defendants excepted.
    The defendants declined to take the hops, and they were placed in the hands of a broker, who sold them, on the 26th December, at 20 cents per pound.
    The hops had been inspected by J. S. Brown, the person named in the contract. The plaintiff testified, that when the hops were tendered to the defendants, they made some excuse about their wanting them inspected; that he forgot the words, but thought they wanted some party beside Mr. Brown to inspect the hops; that he told them that the contract called for the inspection of Mr. Brown, and that he had inspected them.
    Some evidence was given of the market value of hops on the 30th November, and also on the 26th of December.
    The defendants moved to dismiss the complaint, which was denied, and the defendants excepted.
    Alexander McAndrew, one of the defendants, testified that they sent an inspector to examine the hops, and that they refused to receive them on the sole ground that they had not had an opportunity to examine them and ascertain their quality. There was also evidence given by the defendants that several persons had gone to examine the hops and had been refused; but there was no connection shown between such persons and the defendants.
    It was admitted by the defendants that the price obtained for the hops on the 26th of December, was a fair price.
    The plaintiff claimed to recover:1 the difference between the price agreed to be paid by the defendants, (27¿- cents,) and the price obtained for the hops on the 26th December (20 cts.)
    The defendants’ counsel requested the Judge to submit the questions of fact to the Jury, which he declined to do, and the defendants excepted. Such requests are noticed in the opinion of the Court.
    The Judge held that there was no question of fact to go to the Jury; and he directed them to find a verdict for the plaintiff, for the amount claimed, with interest, to which direction the defendants excepted.

      James L. Campbell, for defendánt.
    I. The nonsuit asked should have been granted.
    I. The vendor was bound to tender an actual, not a mere constructive delivery. 2. The defendants had a right to see the thing tendered and have an examination in their presence. The examination of Mr. Brown was not binding on them; he was a party in interest, and moreover his inspection was ex parte. (McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. R., 463.) 3. Defendants were entitled to have the hops on the 30th of November, and time was of the essence of the contract. They could not be inspected in one day — it took two or three. As inspection precedes acceptance, which is a part of delivery, it was impossible, on the 30th November, that these hops could be delivered within the stipulated time.
    II. The Court erroneously assumed that there tras no evidence, that defendants demanded an inspection by a disinterested person.
    III. The rule of damages was erroneous. The right of action, if any, accrued, and the breach was complete on the 30th November. The price at which Dustan subsequently sold them was immaterial.
    IV. The letter, therefore, of December. 24, and the subsequent questions as to the disposition of them, were erroneously admitted.

      John N. Whiting, for plaintiff.
    I. The fulfillment of the contract, by Messrs. Brown and the plaintiff, was perfect on the 30th of November, 1860.
    II. The defendants became bound to fulfill the contract on the 30th of November, unless it should appear that the quantity was less, or the quality inferior to that contracted for. (McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. R., 463.)
    IH. The course adopted by the plaintiff in taking delivery of and paying for the property, and selling it for the defendant’s account, upon notice, was in strict conformity to his rights, and exceeded his duty to the defendants. (Story on Sales, §§ 436, 437; Sands v. Taylor, 5 Johns., 395; Bogart v. O'Regan, 1 E. D. Smith, 590; Bement v. Smith, 15 Wend., 493; Orr v. Bigelow, 20 Barb., 21; Graham v. Jackson, 14 East, 498 ; Thompson v. Alger, 12 Met., 428 ; Hanna v. Mills, 21 Wend., 90.)
    IV. The charge of the Justice was in all respects correct.
    V. The defendants’ exceptions on the trial were not well taken.
    VI. The verdict is in conformity with the proofs and the facts in the case.
   By the Court—Monell, J.

By the terms of the contract, the vendors had the option to deliver the hops on any day during the months of October and November, either the first, the last, or any intermediate day. They were subject to J. S. Brown’s inspection, “or other mutually satisfactory.” The defendants purchased the contract from the vendee subject to all its provisions, which they agreed to fulfill; aud they also agreed to pay the vendee, on the delivery of the hops, ten and one-half cents per pound.

The notice from the Messrs. Browns, on the 28th November, of their readiness to deliver the hops from the warehouses where they were stored, was sufficient as a tender of the hops. (Slingerland v. Morse, 8 Johns., 474; La Farge v. Rickert, 5 Wend., 187.) The hops had been inspected by the person designated in the contract, and the storage receipts and inspector’s certificate were offered to be delivered to the defendants and were refused.

Upon the failure of the defendants to receive the hops and pay the contract price, the plaintiff had a right to perform for them; and their refusal to receive the hops from him, authorized a sale, after notice, at the best market price which could be obtained. (Sands v. Taylor, 5 Johns., 395; Bement v. Smith, 15 Wend., 493.)

The market value of hops on the 30th November was immaterial. The plaintiff’s remedy, after tender and refusal, was two-fold. First. To hold the hops, subject to the , order of the defendants, and at once sue for the contract price; of, second, to sell the hops, after notice to the defendants, for the best price which could be obtained, and sue for the difference between that and the contract price. (Cases above cited.) The plaintiff was not bound to sell the hops on the 30th November. He could hold them just so long as he was willing to take the risk of the solvency of the defendants. They were subject to the order of the defendants, who could, at any time, have paid for the hops, and availed themselves of a better market. Whenever the plaintiff desired to close the transaction, he could have given notice to the defendant and have proceeded to sell on their account.

It was admitted by the defendants that the hops brought what was a fair price on the 26th December. The market value at any other time was,- therefore, immaterial.

The objections to reading the several letters in evidence, were not well taken. They were necessary and proper to lay the foundation of the plaintiff’s right to recover. They proved the offer to deliver the hops, demand of payment and notice of the subsequent sale.

The rule of damages was correct. The plaintiff was entitled to recover the difference between the contract price and the sum he obtained for them on the 26th December, -with interest on that difference from the day of sale. (Sands v. Taylor, Bement v. Smith, supra, 2 Pars, on Con., 484; Sedg. on Damages, 282.)

The objection made by the defendants was that they had not had any opportunity to examine the hops. Mr. McAndrew, one of the defendants, was asked what took place between him and the plaintiff in reference to the contract, and he answered: “I do not recollect seeing him “ until I told him that we could not take those hops with- “ out having an opportunity to examine them; that was the ground, and the sole ground, of our objection; that we had not had an opportunity to examine them and ascertain “ their quality.”

I think the fair construction of the contract is that the inspection of J. S. Brown, should, prima facie, be sufficient proof of the quality and quantity of hops, unless the inspection of some other person, mutually satisfactory, was agreed upon. I do not understand that his inspection was objected to, but the defendants claimed the right to examine for themselves. The certificate of the inspect- or was not conclusive and it was proper - for the defendants to have shown that it was incorrect. The selection of an inspector was for the vendors’ convenience, to enable them, on the day fixed, to tender performance of their contract, and the correctness of any inspection by him was open to inquiry by the defendants. They could not object, therefore, to receiving the hops merely on the ground that they were not satisfied with the inspection, even though they had objected on that ground. The vendors had done all the contract required of them; they had procured the inspector’s certificate, which was the only condition precedent to their performance.

The facts in this case distinguish it from McMahon v. N. Y. & Erie R. R. Co., (20 N. Y. R., 463,) relied on by the defendants’ counsel. There the contract provided that the work should be executed under the direction of the engineer of the company, by whose measurement the quantity of work was to be determined, and whose decision, relative to the execution of the work, the quantity, &c., should be final and binding upon both parties. The action was by the contractor for work and labor, and the defendants insisted that he was concluded by the measurement of their engineer. The Referee found that the measurements were erroneous, in fact, were made ex parte, without notice to the contractor, and without giving him an opportunity to be present; and that the defendants were requested to have measurements made by the engineer, or to have those already made, reviewed, which the defendants refused. The Oourt say, the engineer’s estimate, if legally made, is absolutely conclusive upon the rights of the plaintiff, and therefore “ he ought, in justice, to have at least the opportunity of being present, when that in which he is so deeply interested is done.” That as the contractor in such cases, is dependent entirely upon the skill and integrity of the company’s agent, he ought at least to have such protection as a right to notice might afford.

In the case now before the Oourt, there was no condition in the contract that the inspection of J. S. Brown was to be binding or conclusive upon the parties.. As has been already said, it was inserted for the convenience of the vendors, and was not in itself proof of absolute verity.

But the learned Judge in the case above referred to, says: - “this conclusion alone, without some excuse on .the “part of the plaintiff for not having procured a proper “final estimate to be made, would not support the decision “ of the Referee. But such an excuse is afforded by the “ latter part of the paragraph in the statement of facts, “already cited, which states that the defendants ‘were “ requested ’ to have estimates, measurements, &c., made, “ and that they ‘ refused.’ ”

I am not able to find in the case before us, any evidence of a request made to the vendors, to have the hops inspected, or that any objection was made to them in respect to the quality or quantity. Upon the purchase of the contract from the plaintiff, the defendants became the vendees, and were bound to treat directly with the Browns in respect to the delivery of the hops. The contract with the Browns then belonged solely to the defendants, and the plaintiff had no interest in it. His only interest was in the ten and one-half cents advance. If the defendants claimed another •inspection, such claim was made to the plaintiff; if they objected because they had had no opportunity to examine the hops, they objected to the plaintiff. I think if they had a right for these reasons to object, it should have been to the Browns, with whom, by the assignment, they had become the contracting parties, and who had tendered to them, directly a delivery of the hops.

¡ To reverse the case. Suppose the defendants had demanded a delivery of the hops, tendering the price, as the contract gave them the option of delivery, and it had been refused on the ground that they could not procure the certificate of the inspector, would their inability to furnish an inspection be a defense ? I think not. They could deliver without a certificate, the inspection being for their benefit alone. The inspection, therefore, was not a condition precedent to a delivery. The delivery or tender of delivery would be good without it, and it did not conclude the defendants from showing it to be “ erroneous in fact,” as was done in McMahon v. N. Y. & E. R. R. Co. (supra.)

If these views of the law of the case are correct, it follows, that there was no question of fact to be submitted to the Jury. The Browns had a right to deliver on the last day, and demand payment. On the refusal of the defendants to receive and pay, the plaintiff had a right to perform for them, and they are answerable for the additional price they agreed to pay.

There was no dispute about any of the material facts in the case, and there was therefore nothing to submit to the Jury.

The requests to charge, made by the defendants’ counsel, were of propositions contrary to those here stated, and were properly refused.

• None of the exceptions were well taken, and judgment should therefore be ordered for the plaintiff on the verdict.


source: Caselaw Access Project

license: Public Domain

text:
    Charles H. Baker, Plaintiff and Respondent, v. James C. Griffin, Defendant and Appellant.
    In an action to recover damages for bodily injuries sustained by the plaintiff, his declarations as to his sufferings, made within a few hours after the commission of the injury, and before he had fairly recovered from the shock and pain, are competent to go to the Jury; other evidence as to the fact of the injury being also presented.
    (Before Robertson, White and Monell, J. J.)
    Heard, November 14, 1862;
    decided, January 5, 1863.
    Appeal from a judgment entered on a verdict for the plaintiff, recovered upon a trial before Hr. Justice Eobertson and a Jury, on the 8th of November, 1861.
    The action was for an assault and battery.
    One of the plaintiff’s witnesses (his son) testified, that he was not present at the occurrence between the parties, but saw the plaintiff on the evening of the same day. He was then asked this question: “Will you state whether he appeared to be hurt?” which was objected to by the defendant and allowed by the' Judge. The defendant excepted.
    The witness answered: “When I went in I saw my “ father, (the plaintiff.) He complained of his back and “ shoulders a great deal. He said he was badly hurt. He “ did not say how badly he was hurt, but kept complaining “ of his back and shoulder. I think my mother bathed “his shoulder that night, and the next day, which was “ Sunday. He did not go out. He complained Sunday “ of his shoulder and back. I have also heard him com- “ plain since.”
    The- defendant moved to strike out the testimony of this witness, as to the plaintiff’s complaining, as incompetent evidence.
    The Judge refused to strike it out, and the defendant excepted.
    The plaintiff had a verdict.

      Norman Stratton, for defendant, appellant :
    Cited, Page v. N. Y. Central R. R. Co., (6 Duer, 523,) Hunt v. People, (3 Park Cr., 569,) Enos v. Tuttle, (3 Conn., 250,) 1 Greenl. on Ev., §§ 110, 111.

      C. Van Santvoord, for plaintiff, respondent:
    Cited, 1 Greenl. Ev., § 102; Caldwell v. Murphy, (11 N. Y. R., [1 Kern.,] 416.)
   By the Court—Monell, J.

The only objection to the testimony which the Judge refused to strike out, was that it was not competent evidence. The plaintiff had been examined in his own behalf, and testified that he was standing in the door which led to the yard, that the defendant suddenly turned and went at him with an umbrella, and threw him out of the door into the yard. When the plaintiff recovered, he saw the defendant coming towards him, “I stood on the step of the office, facing inwards, “and the first thing I knew, I was lying out in the yard. “There was marble on both sides of the door and lying out “in the yard. * * The step was 15 or 18 inches from the “ground. I fell on the small of my back and shoulder, “and I went some distance, four or five feet, into the “ yard; my feet went up into the air. I felt the effect of “it very much. It made me lame in the back, and when “I sat down I could scarcely get up. I feel the effects of “it to this day if I take cold.”

It does not distinctly appear how long it was after the injury, that the complaints testified to by the witness were made. The occurrence took place at about 11 o’clock in the morning, and the plaintiff complained in the evening of the same day that he was hurt; it was probably, therefore, not more than six or eight hours afterward.

The declarations of a party, to be competent evidence in his own behalf, as forming a part of the res gestee, must have been made at the time or shortly after the injury; and they are never competent unless supported by other evideuce. * ■

In Aveson v. Ld. Kinnaird, (6 East, 188,) which was an action on a life policy, Ld. Ellenborotjg-h allowed the declarations of the wife who was insured, as to the state of her health, to be given in evidence, for the purpose of proving by it that she was not really well at the time she was examined by the surgeon. And Lawrence, J., says (p. 198) “it is in every day’s experience in actions of assault, that what a man has said of himself to his surgeon is evidence, to show what he suffered by reason of the assault.”

In Caldwell v. Murphy, (11 N. Y. R., [1 Kern.] 416,) the action was for injuries received in being overturned in one of the defendant’s omnibuses, negligently driven by the defendant’s servant. In answer to an inquiry by the plaintiff’s counsel, as to the condition of the plaintiff’s health since the accident, one of the plaintiff’s witnesses stated that “he has always complained.” This the defendant moved to have stricken out, and it was refused. Denio, J., says “it did not fall within the rule which excludes the declarations of a party in his own favor. It is one of the natural concomitants of illness and of physical injuries, for the sick or injured person to complain of pain and distress. A complaint, it is true, may be simulated, but it is generally real. I think such evidence is admissible from the necessity of the case, and that it may safely be left to the Jury, in connection with the other evidence touching the alleged sick or injured person’s condition.”

In a case in this Court, (Page v. N. Y. Central R. R., 6 Duer, 523,) the plaintiff was ejected from the defendants’ cars, and brought his action for an alleged injury, and his statements or complaints of the injury made some days after were held to have been improperly admitted as evidence. But there was no other evidence of the injury, and the Court say “the plaintiff had not proved enough to make his own statements or complaint that he had a lame back, admissible. * * * There should be some proof of actual injury other than complaints of the party himself, made several days subsequently, to justify the admission of such complaints.” And upon this fact, the Court distingnish the case from Caldwell v. Murphy.

In this case the complaint was made but a few hours after the injury was received, and before the plaintiff had fairly recovered from the shock, and while he was still suffering with pain. It would be doing great violence to every legitimate presumption to say, under such circumstances, that it was to be presumed as matter of law, to be a mere piece of simulation, so as to exclude it from the consideration of the Jury.

Without, however, weighing the importance of such evidence, and its probable effect upon the minds of the Jury, it its sufficient to say that within the cases to which I have referred, it was clearly competent; and in connection with the other evidence in the case, was proper to go to the Jury, as tending to establish the injury and the extent of it.

The judgment should be affirmed.


author: By the Court — Robertson, J.

text:
    Eleazer Ayres, Plaintiff and Respondent, v. Matthew O’Farrell et al., Defendants and Appellants.
    1. A plaintiff in an action who does not demur to an answer therein which sets up as a counterclaim a demand not properly admissible as such in such action but takes issue upon it by replying thereto, thereby agrees to try in such action the merits of such demand, and to have the result of such trial avail therein, as though such demand were the proper subject of a counterclaim therein, and thus waives any right to object on such trial to the admission of evidence to sustain it.
    2. The provisions of the Code regulating the taking of objections to a complaint may be considered as impliedly equally applicable to an answer setting up ra counterclaim; and when an issue of fact is raised upon such an answer, the plaintiff must be deemed to have waived every objection to form, not raised by reply or demurrer thereto.
    (Before Robertson, White and Monell, J. J.)
    Submitted, November 5, 1862;
    decided, January 5, 1863.

      Appeal from a judgment on a verdict recovered by the plaintiff, upon a trial of the cause before* Mr. Justice Mohell and a Jury, on the 17th of February, 1862, and from an order denying a motion for a new trial on a case made.
    This was an action to recover rent against lessees and’ their assignees, by the plaintiff, who was lessor.
    ■ The answer of the defendants denied only the indebtedness without controverting the facts alleged in the complaint. It set up, as a counterclaim, damages for injury done to merchandise of the defendants by steam and soot from a bakery established by the plaintiff in the lower part of the building leased. The plaintiff put in a reply taking issue on the facts stated in the answer.
    The defendants’ counsel on the trial, offered to prove the facts set up in the answer, by way of counterclaim, but they were excluded by the Court, to which the counsel excepted, and the plaintiff recovered the full amount claimed.
    Other exceptions were taken on the trial, not material to be stated, and an appeal was taken by the defendants from the judgment entered on the verdict.

      W. E. Robinson, for defendants, appellants.

      A. K. Hadley, for plaintiff, respondent.
   By the Court — Robertson, J.

The Code allows an answer to contain a statement of new matter constituting a defense or counterclaim, (§ 149;) defines the persons between whom, and the actions in which, a counterclaim may be pleaded; and specifies the nature of the causes of action which may be set up as such, (§ 150.) The persons are those between whom a separate judgment may be. given in the action. The actions may be for other causes besides those arising on contract, (Xenia Branch Bank v. Lee, 7 Abb. Pr., 372;) subject only to the condition that where they are not on a contract the counterclaim must arise oat of the transaction which is the foundation of the claim or be connected with the subject of the action. The plaintiff has the privilege of replying to an answer containing new matter, by denial of its allegations if it constitutes a counterclaim, or by demurrer, if it does not. (§ 153.) If he fails to do either within a certain time the defendant may obtain whatever judgment he is entitled to, upon such statement, and even a writ of inquiry of damages. (§ 154; Miller v. Losee, 9 How. Pr., 356; Houghton v. Townsend, 8 Id., 441; Quin v. Chambers, 1 Duer, 673.) The defendant has also the privilege of demurring to a reply to a defense set up in the answer, and is required to state the grounds of his demurrer. (White v. Joy, 3 Kern., 89.)

The Code specifies certain objections to a complaint, which, when they appear on its face, may be taken by demurrer, (§ 144;) or. by answer, when they do not. (§ 147.) The defendant is held to have waived them if he does not take them by one of those modes, unless they are objections either to the jurisdiction of the Court or the sufficiency of the facts stated in the complaint to constitute a cause of action. (§ 148.) Any provision in similar language for demurrers to answers or replies is wanting. It has however, been held, that the objections that the answer does not state enough to show a defense must be taken by demurrer. (Fabricotti v. Launitz, 3 Sandf., 743.) Even a complaint may be attacked, on demurrer to an answer, for insufficiency or not showing jurisdiction in the Court, (People v. Banker, 8 How. Pr., 261; Fry v. Bennett, 5 Sandf., 54; Stoddard v. Onondaga Ann. Conf., 12 Barb. 575,) unless the answer sets tip a counterclaim. The reasons expressed for the doubts as to a counterclaim, show how entirely it is looked upon as a new action grafted on the original one. (Graham v. Dunnigan, 6 Duer, 629.)

A plaintiff cannot disregard an issue formed by him, upon the ground that it is upon an immaterial allegation. (Livingston v. Miller, 4 Seld., 289.) Even an allegation, the omission of which would, on demurrer, make an answer defective as a defense, may be considered as so far supplied by a failure to demur, as to allow evidence of it on the trial, (White v. Spencer, 4 Kern., 248;) and yet if such answer as a counterclaim were entirely defective in showing a good, cause of action against the plaintiff the defendant would be deprived of the benefit of it. (Boyce v. Brown, 7 Barb., 81.) So that the rules applicable to objections to a complaint may be considered as equally applicable to an answer setting up a counterclaim; and where an issue of fact is raised upon it, the plaintiff must be deemed to have waived other objections to form or any amendable defect.

A defendant may have a counterclaim interposed by him rejected on the trial as not proved. But is he precluded from setting off a recovery for a good cause of action set up. in his answer and proved, simply because it is not a subject of set-off in this action if objected to ?

. It is very clear that the defendants could have obtained judgment for the claim set out in .the answer, under section 154 of the Code, if the plaintiff neither joined issue on the facts nor demurred to their sufficiency; on such an application the Court would not have passed on such sufficiency,'but would leave the plaintiff to his demurrer. But the plaintiff having joined issue on the facts, the defendants were compelled to proceed to trial of them. Their failure to appear and give evidence would have made the judgment against them, on the issue so joined, final; as the pleadings, where they exist, and issues framed by them, are the sole test of what has been determined by a previous adjudication. (Burdick v. Post, 12 Barb., 168.) They could not bring a new suit for the same cause of action and claim that the judgment against them in this was not binding, merely because the claim was not a proper subject of set-off. The plaintiff, therefore, prevented the defendants from taking judgment by default, but failed to object by demurrer in proper form and at the proper time, to a trial of their claim in this cause, and compelled the defendants to prepare for trial upon the issues of fact joined, at the hazard of a. perpetual: bar against any action for the same cause. They cannot therefore be allowed thus to ensnare the defendants, and must be held to have waived all objections to trying in this action, the cause of action, if any, set out in the answer.

The permission to the plaintiff to demur, to an answer, when, upon its face, it does not constitute a defense or counterclaim, and to reply where it does, and the authority to the defendant to enter up judgment where he does neither, constitute the only modes of disposing of a defense or counter attack, consisting of a set-off or counterclaim. The exception of the want of jurisdiction of the Court and insufficiency of the statement of the cause of action only, in a pleading, from the rule requiring the demurring party to set out his objections, shows the policy of the Code in regard to them, to compel a party to take them at the earliest period, and apprise his adversary of their nature, to enable him to obviate them. The denial of the right of setting off damages for a cause of action because it is a tort is purely technical. If a separate action should .be brought and a recovery had, the Court might have permitted the same result by a set-off of the judgments. There is therefore no hardship or irregularity in allowing defendants to waive such second action and application, and propose to reach the same result by a trial and judgment in this, and for the plaintiff to accept the offer, by a reply, taking issue on the facts, instead of rejecting it by a demurrer.

That the erroneous exclusion, by the Court, of a counterclaim properly in issue, would be fatal to the claim in another suit is well settled. (Jackson v. Parkhurst, 5 Johns., 128; Grant v. Button, 14 Id., 377.) So where pleaded and not objected to, although the set-off was a tort, it would be equally fatal. (King v. Fuller, 3 Cai., 152; McLean v. Hugarin, 13 Johns., 184; Wilder v. Case, 16 Wend., 583. The record would establish the points in issue; and proof of the exclusion of testimony would be as useless to defeat, as proof of its reception if not relating to claims in the pleadings, would be to extend the effect of that record. (Campbell v. Butts, 3 N. Y. R., [3 Comst.,] 173.) If the defendants do not recover in this action for the damages alleged to have been sustained by them by the acts set out in their answer, they never can in any other. It therefore lay with the plaintiff at the time of putting in his reply, to determine whether both he and the defendants should be bound by the result of the trial in this action of the issues offered by the defendant. He made his election and both parties are now bound by such stipulation of record.

The exclusion of the evidence offered by the defendants to sustain their answer was therefore erroneous, and the judgment should be reversed with costs to abide the event.


author: By the Court — Bosworth, Ch. J. Robertson, J.

text:
    Joseph B. Varnum, Plaintiff and Appellant, v. James B. Taylor, Defendant and Respondent.
    1. An exception to a part of the charge of a Judge, presents for consideration only the legal proposition which the part excepted to affirms.
    2. Where the pan excepted to, consists of a statement of the position taken by the counsel of one of the parties, and states evidence which it affirms was given, a general exception to it will not, on an appeal from the judgment, enable the excepting party to insist that in truth no such evidence was given, especially when the case does not state that it was not given; and the only ground for insisting that it was not given, is the fact that it is not contained in the case and exceptions.
    3. If the excepting party desired to call the attention of the Judge to the fact that he was mistaken, as to such evidence having been given, he should have done so directly and in a way to inform the Judge thereof, and have requested him to admonish the Jury that, in fact, no such evidence had been given ; and if the Judge had, from misapprehension, refused to correct the error, the party prejudiced thereby would be entitled to relief, on his motion for a new trial on a case.
    • (Before Bosworth, Ch. J., and Robertson and Barbour. J. J.)
    Heard, December 1, 18G2;
    decided, January 17, 1863.

      Appeal from a judgment and an order denying a ne w trial.
    This action was brought to recover the amount of a promissory note for $3,934-r¡nr, made by the defendant to the plaintiff’s order, dated April 11, 1853, and payable four months after date. The defense was, that this note was given in renewal of other previous notes of the same amount, simply to liquidate the amount of a claim which the plaintiff had upon the defendant, for commissions on advances, &c., made by him in the business carried on by the defendant, and in which the plaintiff had an interest; that the plaintiff’s claim was contingent upon profits being made, and that, in fact, no profits had been made, but, on the contrary, large losses had been sustained by the defendant.
    The cause was tried before Mr. Justice Woodruff and a Jury, on the 18th of December, 1860. The note first given for the amount of the commissions accruing to the plaintiff, was payable on demand. It was renewed by the substitution of others from time to time, the last of which was the note in suit payable at four months.
    John M. Way, a witness for the defendant, testified, in relation to the giving and renewing of these notes. It appeared from the case, as settled for this appeal, that when asked in reference to his recollection about the notes, he said that there was a memorandum that refreshed his recollection. It did not, however, appear that this memorandum was put in evidence or given to the Jury, except so far as that is implied in a statement made by the Judge in his charge, that the defendant relied on this memorandum as disproving the plaintiff’s view.
    The Jury found a verdict for the defendant, who moved for a new trial on' the ground of newly discovered evidence, and also upon the case and exceptions; and this motion having been denied and judgment entered, he took the present appeal.

      S. E. Lyon, for plaintiff, appellant.

      E. W. Stoughton, for defendant, respondent.
   By the Court — Bosworth, Ch. J.

The portion of the charge first excepted to, is part of a series of state-ments made by the Court, in presenting to the Jury the defendant’s theory of the case; the positions he took as to its actual facts, and the results which, he claimed, that certain, of the evidence given, tended to establish.

In the course of these statements, the Court remarked, that the defendant insisted, that a certain view or idea contended for by the plaintiff was disproved, not only by certain circumstances, which are specified, “ but the further circumstance testified to by Mr. Way, who gave evidence as to the correctness of the memorandum on 11th September, 1852 : ‘ Exchanged and gave new note for five months, for the same object, and on the same conditions Which the defendant insists is a perfect refutation of the idea, that when the note was given, it was given with- any understanding that that was to close the matter.”

The case states, that “ the plaintiff then and there duly excepted, and now excepts to all that portion of the charge of the said Judge beginning — ‘ But the further circum stance,’ ” &c., this being the portion of the charge above quoted.

The appellant now insists, that the memorandum of the 11th of September, 1852, was neither read to the Jury, nox given in evidence, and that the statement, by the Judge, that Way had testified to its correctness, and of its'con tents, was an error which is reached by the exception, and which entitles the plaintiff to a new trial.

The exception does not specify as its ground, nor was it suggested to the Court, that the plaintiff insisted that the memorandum had not been made evidence. Sor is there anything in the case showing that it was not made evidence. The contents of it do not appear in the case, except in the charge of the Judge, and that is all the ground there is for alleging that it was not put in evidence.

Way, in his testimony about two certain notes, and his recollection in regard to them, said “ There, is a memoran dum that refreshes my recollection.”

The charge of the Judge purports to state the contents of this memorandum, in its precise words, and professes to restate the argument made by the defendant’s counsel based thereupon.

There is nothing in the case tending to show that the defendant’s counsel did not take the precise position stated by the Judge, or affirming that the memorandum was not read, nor its-contents stated by counsel, without objection, to the Jury, nor that the Judge did not state its contents accurately.

This part of the charge does not state any rule of law, as affecting either party, and therefore does not present any rule of law inaccurately.

If the memorandum had not been given in evidence, and if its contents were first made known to the Jury by the charge of the Judge, it was the duty of plaintiff’s counsel, if he desired to correct any misapprehension of the Judge in this regard, and to have the Jury informed that it was not in evidence, and that- they must not be influenced by it, to have called the attention of the Judge to the fact that it was not in evidence, and request him to so inform the Jury.

And the case and exceptions should have been settled.' so as to state that it was not given in evidence.

Then if it also appeared, that the Judge refused to make the proper correction and instruction, the question would be presented, which the appellant now seeks to raise.

We consider it quite clear that there is nothing in the exception as the case presents it.

The point and object of an exception should be so presented, that notice may be given to the Court and opposite party. (Simpson v. Downing, 23 Wend., 318.) “The substance of the exception should always be settled and clearly understood, or be such that it is capable of being understood and noted down at the trial. The matter to which it- applies, should always be well understood there.” (Id., 319.)

An exception ought to be on some point of law, either in admitting’ or excluding evidence, or some matter of law arising upon a fact not denied, or upon a hypothetical fact or series of facts which it is submitted to a Jury to determine, in which the party excepting is overruled by the court. (Graham v. Camman, 2 Cai., 168.)

It does not lie to the comments of the Judge upon the evidence, as they are always understood to be not binding on the Jury. (The People v. White, 14 Wend., 111 and 116; Nolton v. Moses, 3 Barb., 31, 34.)

It is enough to say, that the objection now sought to be raised under this exception was not even called to the attention of the Judge; it certainly was not presented to him for decision. (Ward v. Lee, 13 Wend., 43.)

The parts of the charge, secondly and thirdly excepted to, are free from error.

. The plaintiff was not entitled to a peremptory instruction, that a verdict be rendered in his favor.

The case was fairly submitted to the Jury. The position taken by the parties respectively, it is conceded, was clearly and fairly presented. Ho rule of law stated to the Jury was erroneous.

There is nothing in the case showing affirmatively any such inaccuracy,, as it is now alleged, (in support of the exception first taken to the charge,) that the Judge inadvertently committed. Looking at the case and exceptions, as a.case, we cannot say that it appears that injustice was done to the plaintiff, which will justify the granting.of a new trial.

Ho case is made for granting one, on the ground of newly discovered evidence, or surprise at the trial.

The judgment and order should be affirmed.

Robertson, J.

Testimony was given on the trial of this action, although not by the witness Way, that four notes were given in succession at the maturity of each other, taking the discount off each note, in payment of the preceding one. He merely testified, on his direct examination, that no other consideration was given for any of those notes which had been delivered by him, except that stated in a receipt given for the first note, and that' such notes were not paid hy checks drawn on his bank by the defendant. The plaintiff testified, that each of such notes was given in payment of an antecedent one; that is, he discounted each new note and received the proceeds back in payment of the old one. Way, on his cross-examinar tion, after stating that he wrote the notes, was asked, “Is that all your recollection about them ? ” and answered, apparently demonstratively, “ There is a memorandum, that refreshes my recollection.” And again was asked, apparently demonstratively, also, “ This does not refresh “ your recollection as to any conversation with Mr. Yar- “ num at the time it was delivered ? ” To which he answered, “Ho, sir.” It does not expressly appear by the case whether any memorandum was or was not exhibited on either occasion or what its contents were. And the appeal being on an exception, so much of what took place on the trial should be in the case as would be enough to sustain that exception.

The learned Judge charged the Jury that the defendant insisted that the plaintiff’s idea, that the note in suit was given in payment and satisfaction of a prior note, was disproved not only by certain circumstances, but also by “ the further circumstance testified to by Mr. Way; who “ gave evidence as to the correctness ” of a certain memo- “ randum. The Judge then stated what is supposed to be “ its contents, to wit: “ Exchanged and gave new note for “five months for the same object, and on the same conditions.” Of course, the circumstance testified to by Mr. Way, alluded to by the Judge, was not merely the abstract fact of the correctness of a memorandum, of whose contents they were to know nothing, but the facts stated therein. If so, it appears to me, his testimony was directed to such facts. He stated that no other consideration was given for the note in suit, except that stated in a receipt given for the first. That certainly was evidence to some extent, as to both notes being for the same object and on the same conditions. The witness also testified that some memorandum refreshed his memory; if the one referred to in the charge was the same, that certainly was also some testimony, however slight, as to its accuracy as a memorandum.

It strikes me forcibly that if the question on the cross-examination of Way as to refreshing his memory, refers to the same memorandum, the defendant made it evidence, otherwise how could the Jury decide on the degree of credibility of the witness, without knowing whether such memorandum was likely to refresh his memory,, as to a conversation? The question was asked, evidently, merely to discredit the witness, in case his answer was in a particular way..

But one question raised is, whether when a memorandum spoken of by a witness as refreshing his memory, has not been read as evidence, a general exception to a charge of a Judge, that the defendant insists that the facts stated in such memorandum, the contents of which are first given by such Judge, refutes the plaintiffs theory of the ease, is sufficient to set aside the trial. Clearly, if in the course of the trial the Judge had improperly enabled the Jury to hear such contents by asking a witness to read them or inquiring as to their truth, the objection must have been taken to the reading or the question. If such contents .are first stated in the charge, the exception should equally point out the nature of the objection.

If the ground now assumed, be that the Judge misstated any testimony given by Way, the correction should have been made at the time. (Notion v. Moses, 3 Barb., 31.)

The question whether the defendant’s theory was- improperly submitted to the Jury, because there was no evidence to sustain it, of course cannot be raised.

It would be laying a trap for an adversary, to allow a party to take the chance of a verdict, and then, if a Judge should appear by the case made- to have misstated the evidence in a single point, without his attention being called to it on the trial, to "allow such party upon a general exception to such statement, to ask for a new trial.

For these reasons, as well as those stated in the opinion of the Court, I think a new trial should be refused, and the judgment affirmed.


author: By the Court—Bosworth, Ch. J. Bobertson, J. Barbour, J.

text:
    Thomas Dennistoun, Plaintiff and Appellant, v. Gaylord B. Hubbell, Defendant and Respondent.
    1. Where lessees, having an unexpired term, assign all their property in trust for the benefit of creditors, and the assignment does not disclose the existence of the lease, and the assignee, at the time of accepting the assignment, is not aware that the assignors owned such a lease, and does not accept the lease or enter on the practises, he is not made liable for rent subsequently accruing upon the lease, by the mere fact that he collected from sub-tenants, of a small portion.of the demised premises, moneys specified in the assignment and schedules as due from them upon open account, but which, in fact, were due as rent of such portions of the premises, and which had not accrued at the time the assignment was madS.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 3, 1862;
    decided, January 17, 1863.
    Appeal from a judgment in favor of the defendant, entered upon the report of Livingston Livingston, Esq., the Referee before whom the issues in the action were tried.
    The plaintiff sued to recover one-quarter’s rent, which fell due on the first of August, 1861, under a lease made by him to Erastus Z. Wright and Theodore Mace, of a store in Beekman street, in the City of New York. The lease was made in May, 1859, and Wright and Mace occupied the lower portions and basement of the building in their business, and sub-let one portion of the lofts to the firm of B. J. Eyre & Co., at the rent of $350, payable quarterly, and another portion to H. H. Taylor & Brother, at the rent of $200, payable quarterly, during the year, from the first of May, 1861, to the first of May, 3862
    On the 18th day of July, 1863, Wright & Mace having become insolvent, (and having previously sold to the firm of Pattee, Yale and MacFarlane all their stock of goods, fixtures and visible property, and which, except the fixtures, had been removed by Pattee, Tale & MacFarlane, the purchasers,) made to the defendant a general assignment, for the benefit of their creditors, of all tlioir property, real and personal, of every name and nature, save such as was exempt from execution. Ho mention was made in the assignment of the lease from the plaintiff, or of the leases from Wright & Mace to B. J. Eyre & Co., .and to H. H. Taylor & Brother.
    On the 7th day of August, 1861, Wright & Mace made and executed the inventory and schedule of their assets and effects and indebtedness, required in the case of such assignments, by the act of April 13th, 1860, and the same were afterwards filed on the 11th day of August, 1861. This inventory and schedule mentioned in the list of indebtedness $1,750 as rent due to the plaintiff. That sum was, in fact, the rent from February 1st, 1861, to August 1st, 1861. It also mentioned one sum of $87.50, as due to Wright & Macé from B. J. Eyre & Co. on open account, and one sum of $50, as due to Wright & Mace from H. H. Taylor & Brother, on open account.
    On. the 15th and 20th days of August, respectively, the defendant, by an agent, collected these sums. The finding of the Referee, in reference to the circumstances under which these sums were collected, was as follows:
    “ 24. That .said sum of $50 was collected by said defendant of H. H. Taylor & Bro., by a young man named Brown; t^at said Brown called and demanded the rent; that one of said firm said to Brown, that if he paid the rent he must have Mr. Hubbell’s receipt for it; that Brown went away and brought the receipt inserted in the case, upon which the check for $50, payable to Gaylord B. Hubbell, assignee, was delivered to said Brown.
    “ 23. That Brown was the agent of said defendant in collecting said $50, and having demanded it as.rent, and being told that if it was paid, the receipt of Mr. Hubbell must be given for it,- and Brown returning for the rent, with the receipt in question, and delivering it, and receiving the amount in question, and the defendant having been examined as a witness in his own behalf, and not denying that said Brown was his agent, and authorized to give the receipt in question, the legal inference is that Hubbell, when he received the money, knew that the $50 was for rent of part of the premises in question, up to 1st August, 1861, and I therefore find that the defendant, when he received said sum of $50, knew that said sum was for rent of part of said premises up to 1st August, 1861.”
    The Referee further found that the defendant did not enter upon the premises; that it would not have been for the interest of the creditors for him to assume the lease; that he did not elect to assume it, nor do any act to make him liable for it; and found, as a final conclusion of law, that the defendant was entitled to judgment.
    The other details of his report, so far as material to the questions decided by the Court, are fully stated in the opinion of Bosworth, Ch. J.

      JR. Grosman, for plaintiff, appellant.
    I. The burden of proof that the assignee had rejected the term, rested on the assignee, and there being no proof of such rejection, he is liable on the covenants of the lease for the rent in question. (Muir v. Glinsman, N. Y. Superior Court, January Term, 1856.)
    A. When a lease or term is specifically mentioned in an assignment, the delivery of the assignment, and acceptance by the assignee thereof, passes the estate, and renders the assignee liable on the covenants of the lease, without reference to whether he has taken possession or not. (Walker v. Reeves, 2 Dougl., 461; Webb v. Russell, 3 T. R., 400; Brett v. Cumberland, Cro. J., 521; Parker v. Webb, 3 Salk., 5 ; Palmer v. Edwards, 1 Dougl., 187; Williams v. Bosanquet, 1 Brod. & B., 238, [5 Com. L. R.;] Walton v. Cronley, 14 Wend., 63; Provost v. Calder, 2 Id., 517.)
    The delivery and acceptance of a general assignment is equally effective, according to its purport, and if the granting clause is fairly sufficiently comprehensive to embrace term for years, the term passes, and as against the assignors the delivery is conclusive. The only difference is as to the assignees’ acceptance. In the first case, the assignment being specific, the acceptance is specific and conclusive In the last case, the assignment not being specific, "the acceptance by the assignee is not specific, and, therefore, not conclusive, but grima facie or presumptive merely, and subject to his rejection or disclaimer.
    B. The case of Journeay v. Brackley, in the New York Common Pleas, (1 Hilt., 447,) is not well considered in so far as it holds that the term remains in the assignor. The cases cited by the learned Justice to sustain this position arose under the English Bankruptcy Acts, and the authority of those cases, as applicable to a voluntary general assignment for the benefit of creditors, is expressly repudiated and discarded by the English Courts. (How v. Kennett, 3 Adolph. & Ellis, 659.)
    II. The receipt of rents from the sub-tenants is conclusive evidence of possession and acceptance on the part of the assignee as assignee. (Matter of Galloway, 21 Wend., 32.)
    III. The fact that the defendant did not personally take possession, and occupy, is not of any weight as evidence of an intention not to take the term. Our case does not claim to rest on actual possession by the assignee, but solely on the execution, delivery, and acceptance of the assignment, and the receipt of the rents accruing August 1st, 1861, from the sub-tenants by the assignee.
    IV. The attempt to make out a specific assignment of the, rents to accrue from the sub-tenants August 1st, 1861, to the defendant, by means of the schedule required by the act of April 13th, 1860, is wholly untenable.
    A. There is no specific mention of those rents in the inventory or schedule.
    B. The assignment was complete and perfect, as regards its effect in the transfer of property, at its execution and delivery. The schedules and inventory are not required to be, and in this case were not, made, and executed until the lapse of twenty days after the assignment, It would certainly be fraught with liability to abuse, and the perpetration of fraud, to hold that for this length of' time the assignors can alter and vary the effect of the assignment, as to transfer of property, by means of the schedules.

      Joseph Nelson, for defendant, respondent.
    I. An assignment for the benefit of creditors is not intended to convey what would be injurious to their interests; and it does not follow that, because Wright & Mace assigned their property, they transferred this lease. (Carter v. Hammett, 12 Barb., 253; Martin v. Black, 9 Paige, 641; Bagley v. Freeman, 1 Hilt., 196; Journeay v. Brackley, 1 Id., 447.)
    II. But, apart from the question of intent, the lease was not, in fact, assigned to the respondent. Under our statute, the inventory is part and parcel of the assignment and the lease is not specified in it, and was not brought to the assignee’s knowledge.
    III. The assignee was bound to collect this money of Byre and Taylor- as the claims were specifically assigned, and were not described as for rent, and their collection was expressly directed.
    IV. The assignee does not appear to have known that Eyre & Go., and Taylor & Go-, were tenants, or that the sums due from them were for rent. The 25th finding is erroneous, for Brown was a mere collector, not an agen*, in the sense put by the Referee; and while the legal rule stated might be correctly applied for the protection of Taylor, if need be, no such principle obtains as between these parties.
    By receiving the cheek for $50, the assignee ratified the mere act of collection, nothing more.
    To have extended the ratification beyond that, plaintiff should have proved affirmatively that the assignee knew all the facts. (Nixon v. Palmer, 4 Seld., 398; Seymour v. Wyckoff, 6 Id., 213; Hays v. Stone, 7 Hill, 132.)
    V. An assignee in trust has an election to take such a lease or not, (see cases cited to the first point,) and is entitled to reasonable time to consider the question.

      VI. The assignee cannot sell or dispose of any of the property until the security is given, (Act of 1860, ch. 348, § 3;) and to have disavowed this lease, or rejected the term, or made any election to that effect by the first of August, the time when this rent accrued, would have been disposing of the lease contrary to the statute.
    Premature action on the part of the assignee, in such cases, is not to be favored.
    VII. As the assignee had no knowledge or notice of the existence of the lease or rent in question, he was not in a condition to make any election to accept or reject the lease. (2 Story Eq. Jur., §§ 1097, 1098 ; the cases in 4 and 6 Selden, and 7 Hill, supra.)

    The plaintiff should have put the assignee to his election before suit.
   By the Court—Bosworth, Ch. J.

The assignment to the defendant was made on the 18th of July, 1861. This suit is brought to recover a quarter’s rent, falling due August 1st, 1861. The inventory and schedules required by the statute of April 13,1860, (Laws of 1860, p. 594,) were completed, executed and filed.

The defendant was not in said store (the demised premises) “ after the execution of the said assignment, and did not use, occupy or interfere with the use or occupation thereof, or exercise control over the same.”

“ The defendant, as assignee, did not at any time'enter into possession of said premises.”

He did not, as such assignee, elect to become the assignee of said lease.

The lease is not mentioned in the assignment, nor in the schedules annexed to it.

. Assuming that an assignee of all the property of a debtor, may reject a lease owned by the debtor, where the lease is not, in terms assigned, and thus avoid personal liability for subsequently accruing rent, this is-a clear case of exemption from liability, unless two other facts found by the Referee have the effect to impose such liability. It is found, that on the 15th of August, 1861, the defendant, as assignee, collected from B. J. Eyre & Co., $87.50, being a quarter’s rent, falling due August 1, 1861, for parts of the demised premises, occupied by them under a hiring from the assignors. On the same day, he collected from H. H. Taylor & Bro. the sum of $50, one quarter’s rent falling due August 1,1861, for other parts of the demised premises, occupied by them under a hiring from the assignors. It is also found that the defendant knew, when he received the $50, “ that said sum was for rent of part of said premises up to August 1,1861,” but such knowledge as to the $87.50 is not found.

The schedules annexed to the assignment, state that “H. H. Taylor & Bro.” and “B. J. Eyre & Co.” are debtors of the assignors, on “ Open ac.,” the former for $50, and the latter for $87rtro-

It is also found, that the defendant did not know, until the commencement of this action, of the existence of the lease from the plaintiff to his assignors, or what the rent of the store was, but knew that the assignors “ had occupied said store for several years and he had heard various accounts (quere amounts ?) stated as the rent.”

And it is found also, that the assignors, prior to the assignment, had sold all of their stock of goods, and the same had been removed, but they were possessed of goods belonging to others which they were selling on commission, and these remained on the demised premises, until after the inventory or schedules were completed and filed.

In the schedule of creditors annexed to the assignment, the plaintiffs are named as creditors on “ Open ac.” in the sum of $1,750, (which is the amount of two quarters’ rent,) but it is not found or proved that it was in part for the quarter in question ; but the schedule states that the “cause or consideration of indebtedness” is “for rent.”

The practical question is whether the collection of the two items of rent is to be regarded as an item of evidence upon the question whether the assignee accepted the lease, or as an estoppel which concludes him.

The Referee has evidently treated it as a question of mere evidence, and held that, on a just view of the whole evidence, the assignee.must be deemed to have elected to reject the lease, and the residue of the term thereby created.

The plaintiffs counsel insists, that the collection of these two items of rent, “ is conclusive evidence of possession and acceptance on the part of the assignee as assignee,” and cites as an authority, Matter of Galloway, (21 Wend., 32.)

In that case, John Galloway (the younger) was proceeded against, as administrator of his deceased father, (John Galloway, senior.) Letters of administration were granted in February, 1833, and the proceedings against the administrator were commenced April 13, 1837. During all the intermediate time, he had “ received the rents, issues and profits of the demised premises.”- Being a non-resident, he was proceeded against as such, to recover $2,632, a sum imposed for assessment, on the demised premises, for opening and continuing the Bedford road, and which sum the lessor had been compelled to pay; the lessee covenanted for himself, his executors, administrators and assigns to pay all taxes, duties and assessments, which should, during the term, be imposed on the demised premises.

The Court held, that an administrator who enters upon leasehold property, which belonged to the intestate at the time of his death, or who receives the rents and profits thereof, is chargeable in the debet and detinet, or directly on the covenant as an assignee, and need not be named as executor or administrator.

The legal estate of a deceased person, must rest somewhere, and is devolved upon his legal representative by operation of law, and he cannot reject the term, so as to avoid liability, so far as he has assets. (2 Williams on Ex’rs, [5th Am. from last Lond. Edit.,] 1558, 1559; 2 Rob. Pr., 99, 100 ; Rubery v. Stevens, 4 Barn. & Ad., 241.)

Where he has no assets, and the land is worth less than the rent, or sum due,, this must be shown by way of defense.. Prima facie,, the land is worth more. Covenant against an executor, is a remedy given by statute. (1 R. S., 747, § 24.)

The Court say, in the matter of Galloway, that receiving" the rents and profits, is the same thing as entering into possession of the premises. But- this is said iu a case where the rents and profits of the whole premises had been received for years, and of an assignee who is compelled to take the term, and is at all events liable to the extent of the rents received, and to the extent of the assets that may come to his hands applicable to the payment of the sum due.

If the position of the present defendant is like that of an executor, it would seem that he would be liable to the extent of the rents received, on the ground that the term is cast upon him, and the rents received, or profits of the land, are appropriated by law to the lessor, and create a personal debt for the sum received, they being less than the sum reserved, for rent.

In Hargrave’s Case, (5 Coke, 31 b.,) it was adjudged that “when an executor takes the profits, nothing shall be assets but the profits above the rent, as if the land be worth £10 per annum and £o is reserved, in that case nothing shall be assets but the £5 above the rent.”

This proposition is discussed and other cases are cited in Rubery v. Stevens, (supra.) See Pugsley v. Aikin, (1 Kern., 494.)

Whether this rule is applicable to such an assignee as the present defendant, is a different question. He may reject the term absolutely, and thus avoid all personal liability. An executor cannot do this. And if the assignee rejects the term, and never enters into possession, but nevertheless, receives the rents of part of the premises for one quarter, it is illogical to say that he can be charged as assignee of the term. If he is to be deemed an assignee of the term, under an assignment not made by operation of law, but by a coutract to which he is a party, he would be liable for the whole rent payable by the lease, however small the sum received by him, and although he may not have received anything. By 2 R. S., 82, § 6, sub. 1, leases for years are declared to be assets, to be applied and distributed, as part of the personal estate of the testator or intestate. 2 R. S., 87, § 27, declares the preferences to be observed in paying debts. And by § 30, Id., power is given to the Surrogate to order rents due or accruing, to be paid in preference to debts of the 4th class, whenever it shall be made to appear to his satisfaction, that such preference will benefit the estate of such testator or intestate. These provisions import that, as between the lessor and the lessee’s executor, the former has no equitable exclusive rights to the rents.

However this may be, yet, in a case where it can properly be said, that such an assignee as this defendant rejected the term and never entered into possession, it cannot be held that he is assignee of the part of the premises for which he received rent, and is chargeable as such. And where, in such a case, the assignee, from some misapprehension of his rights, receives rent from a, sub-ten ant, of only a small part of the premises, which, in equity, may possibly belong to the lessor, he is to be charged, if at all, in an action presenting grounds for equitable relief, and not as assignee of a term, the title to which was never vested in him, and into the possession of which he never entered. (Story Eq., vol. 1, <§ 687.)

If, in such a case, the assignee is liable as assignee of the term, it is because he is, in judgment of law, made assignee of the term, by such reception of rent, against his determination not to take the term, and notwithstanding he was ignorant of the existence of the lease, and never entered into possession of the demised premises.

I am inclined to think that the facts found as to receiving the two items of rent, and the circumstances under which they were received, do not raise the conclusion of law, that the further facts found, viz.: that the defendant, as assignee, did not, at any time, enter into the possession of the demised premises, and did not elect to become assignee of the said lease, are untrue.

It is well settled, that a sub-tenant, who occupies part of the demised premises under a hiring thereof from, the lessee, cannot be charged at the suit of the lessor as assignee pro tanto. The sum which such sub-tenant contracts to pay, the lessor cannot reach upon the facts found, or proved in this case; nor can he maintain any action against the sub-tenant to charge him personally with the payment of that sum.

•Such being the rule in that respect, such an assignee of the lessee as the present defendant, by receiving the sum due from such a sub-tenant, merely collects a debt to which the lessor had no right; and under the circumstances proved in the present case, collects it as a debt due to his assignor, and does not take it a% assignee of the term, and as rents or profits of part of the demised premises.

I am, therefore, of the opinion, that the Beferee, having found upon sufficient evidence that the defendant, as assignee, did not at any time enter into the possession of the demised premises, and did not elect to become assignee of the demised premises, the conclusion that the defendant is entitled to judgment, is correct.

The judgment should be affirmed with costs.

Bobertson, J.

The defendant was clearly not liable as assignee unless he accepted the possession of the premises as such. Collection of the rents and profits as such knowingly, which fell due after the assignment, would be, as laid down in Galloway's Case, (21 Wend., 32,) equivalent to possession.

There is not sufficient evidence in this case to show that the defendant, in procuring the cash for the check of Eyre & Co., knew it was for rent falling due after he became assignee. The schedules annexed to the assignment, informed him that such sum was due, but not on what account. Even if it had been for rent due before he became assignee, his collection of it would not be an acceptance of the lease, as it would be a mere chose in action. (Demarest v. Willard, 8 Cow., 206.) The receipt by him of the check is no evidence of the authority of the agent to give a receipt for it as rent, or of notice to him as principal that it was so. A party bound to make an election is entitled to be apprised of the facts which create a necessity for it. Acts done by mistake and in ignorance of a party’s rights do not constitute an election, unless they could only be done by virtue of one then made or are ratified after discovery of the mistake. If the defendant received the money from the tenants, knowing it to be rent, but having reason to believe and believing it was due before the assignment, he did not thereby elect to accept the assignment of the lease. The judgment given by the Referee was correct, notwithstanding the fact found by him that th» defendant actually collected rent due after he became assignee. There is evidence to show he did not knowingly collect it as such, and we have, therefore, a right to infer that the Referee so found, in fact, although not expressed, in order to sustain his report.

I concur with my brethren in thinking the judgment should be affirmed.

Barbour, J.

In this case the plaintiff seeks to recover from the defendant, as general assignee for the payment of debts, one quarter’s rent of certain premises leased by the plaintiff to the defendant’s assignors, and in their possession at the time of the assignment, upon the alleged ground that the defendant accepted the assignment, epteredinto the possession of the premises, and received rents from some of the under-tenants of the assignor for the quarter in question.

The testimony shows that the lease was not specifically mentioned in the assignment, nor in the schedule subsequently annexed thereto; that the defendant did not take actual possession of, nor occupy, any portion of the premises upon or after the assignment; and that he had no knowledge of the existence of the lease in question. The proofs show, however, that a claim of $50, against H. H. Taylor & Brother, and another against B. J. Eyre & Co. for $87.50, were inserted in the schedule as debts due to the assignors; although it did not appear upon the schedule what the nature of such indebtedness was. But, upon the trial, it appeared that those sums were really for rents of portions of the premises for the then current quarter, which, at the time of the assignment, had not yet accrued; that a man who had formerly acted as a clerk for the assignors, called upon Taylor & Brothers, after their rent became due, and received payment, giving a receipt therefor, in the name of the defendant, expressing that such payment was for rent; and that the check received for such rent came to the defendant’s hands, and was used by him. But there was no evidence tending to prove that the defendant authorized the giving of such receipt, or knew that it had been given, or that he had any knowledge that the check was, in fact, received for rent, beyond what may be inferred from the tact, that when examined as a witness he did not voluntarily deny such knowledge.

The Referee decided, that the defendant was entitled to a judgment in his favor; but, as he has also found as a fact, that the defendant knew the $50 was for the rent of the premises, when he received it, the Referee’s ultimate decision would seem to be in conflict with the general doctrine laid down in Galloway's Case, (21 Wend., 32.) This finding of fact, however, is based, as the Referee very clearly states, wholly upon the failure of the defendant to deny, when examined as a witness in the case, that he knew that the $50 was for the rent of a part of the premises; although he was not examined at all touching that matter.

The finding in question was, certainly, erroneous. There is no evidence in the case tending to prove the defendant knew the money was for rent; and nothing can be inferred to his prejudice from his omission to testify, uninterrogated, as to a collateral matter, not specifically charged in the complaint; more particularly, where, as in this case, the main fact thus sought to be inferentially established, is denied, under oath, in the answer.

The judgment should be affirmed, with costs.