text:
    GEORGE N. MANCHESTER, et al., v. SUSAN R. KENDALL, et al., as Ex’rs, &c.

      Equitable assignment—sale of land with building loan—unaccepted order by purchaser on seller in fmor of third party—effect of provision for non-assignment—removal of liens—condition precedent, waiver of—effect of equitable assignment.

    In case of a sale of land with building loan, where an order is given by the purchaser on the seller in favor of a third person, payable out of the last
    • installment of the loan, the order (though unaccepted) with notice to the seller, operates as an equitable assignment, to the extent of its amount, of the purchaser’s right under the provisions of the contract which refer to the last installment. Therefore, if upon the other conditions of the contract being performed, the seller, for the money to be loaned, is to take a mortgage on the land which at that time is to become the property of the purchaser, and the conditions arc performed and the mortgage given before the money agreed to be loaned is actually advanced, the seller becomes indebted to the purchaser in the amount not advanced; and the order with notice operates as an equitable assignment of such indebtedness to the extent of its amount.
    The contract contained this clause: “ This contract not to be assigned or any part thereof, or any installment to grow due under the same.” Held, that if enforceable, a breach thereof would not make the assignment void; but only subject the assignor to a claim for damages.
    Clause making the removal of liens a condition precedent to payment of installments, may be waived by the seller. By reserving the amount of a lien and its interest out of the money to be advanced, he takes upon himself the office of removing it, and waives its removal as a condition precedent.
    Where the contract contains a clause for forfeiture, at option of seller, of claim to a deed or for work or materials, in case of failure to keep free from liens, or of allowing any lien to remain after installments become due, the seller, by giving a conveyance, exercises the only right given by this clause for its breach, viz.: his option to or not to, claim a forfeiture —and exercises it in favor of not so claiming.
    Where such an order with notice operates as an equitable assignment, the party on whom the order is drawn becomes a trustee for the party in whose favor it is drawn, with definite obligations to him, and is bound to pay to him on demand, and to no other person.

      Decided March 5, 1885.
    Where, then, there is no evidence that the party on w'hom the order is drawn did not know the character of the order and the rights of the drawee under it, but it appeared that he made part payments, and refused to pay the remainder on the ground that he had paid it to the drawer, and although the evidence show'ed that the drawee believed that the order and notice did not create a legal obligation, yet it further appearing that he never told the party on w'hom it W'as drawn what his belief was, and thereby led him to pay to the drawer, —Held, that a request to charge the jury that if they “ believed the plaintiffs and Mr, Kendall both treated the order as requiring an acceptance, and as creating no liability without an acceptance, and no claim having been made by plaintiffs for payment of the whole amount, or that Kendall should not pay Haas until the order was paid, the plaintiffs cannot recover,” was properly refused.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Defendants’ exceptions ordered to be heard in the first instance at general term, after a verdict for plaintiffs.
    On the trial it appeared that the defendant’s testator, Kendall, made a contract with one Haas, whereby he agreed to sell to Haas five lots of land in this city, for $35,000, and also agreed to lend to Haas $6,000, for each house, in installments, to be expended by Haas in building the houses on the lots. The plaintiffs sold to Haas certain building materials, which were used in building the houses. For the sum due upon this sale and for a future indebtedness to be incurred by Haas to plaintiffs for further materials to be used in the houses, Haas, drew and delivered to the plaintiffs the following order :
    “New York, Dec. 9, 1873.
    “ Isaac 0. Kendall, Esq. :
    “ Pay to the order of Arnold & Go., twenty-eight hundred and twenty dollars, out of payment due me. when houses, Lexington avenue and Eighty-fifth are finished.
    “Nice. Haas.”
    The plaintiffs afterwards gave notice to the testator that this order had been made. When the houses were finished, the plaintiffs demanded of the testator payment of the order; $1,000 only was paid, the remainder being withheld under the circumstances that are given in the opinion. Other facts are given in the opinion.
    Plaintiffs recovered; and the court ordered defendants’ exceptions to be heard, in the first instance, at general term.

      David Thurston, for plaintiffs.

      W. McDermot, for defendants.
   Per Curiam.

The first objection taken by the learned counsel for defendants is, that the order did not operate as if there were a sum to become due by defendants’ testator, but only upon Haas’ rights in respect of the last installment such as it was under the contract. The principle implied seems to be correct. The thing assigned equitably was Haas’ right, to the extent of $2,820, under that provision of the contract that referred to the last installment. If there were money due, the right of Haas or his equitable assignees, the plaintiffs, would be to recover the money. If Haas’ right were confined to an action for damages, for the failure to loan money, the plaintiffs would be entitled to such damages only. Counsel for defendants agrees that defendants’ testator agreed to lend the money and not to pay it. The words of the contract refer only to a loan. They are : ‘ ‘ the party of the first part hereby agrees to advance the party of the second part $6,000, on each house, as a loan,” etc. If this were to be taken by itself, there would be admissible only those considerations that are pertinent to an agreement to lend. In fact, however, it is to be considered in connection with other provisions of the contract. The decisive provision, although others have significance on this point, is that for the money to be loaned as provided, and upon other conditions being performed, the decedent was to take a mortgage upon the land, which at that time was to become the property of Haas. Manifestly, if this mortgage were taken before the money agreed to be loaned was actually advanced, the mortgagee would become indebted in the amount not advanced. It was the fact in this case, that such mortgage was taken or an equivalent for it given. This is an inference from the facts as to the performance of the contract. The rights under the agreement to advance, were not such only as grew out of the actual existence of facts at the time the agreement was made, but out of such further facts as afterwards occurred, and indeed as were contemplated by the parties as about to occur. On this point it must be said that the plaintiffs, as assignees of Haas, were entitled to recover to the extent of the order as for money agreed to be paid.

The next position taken was, that by the terms of the contract it was provided that any installment to grow due under the same was not to be assigned. The words were, “This contract not to be assigned, or any part thereof, or any installments to grow due under the same.” These words do not, on their face, attempt to prevent there coming into existence those things and rights, which when they exist, show there is something to which the law attributes the quality of assignability. There would be performance and a corresponding obligation to pay, in which Haas or his assignee would have aright of property. The words must be construed to mean, if they can be enforced, that Haas agrees not to assign, etc., and if he do, the appropriate consequence would be a claim for damages for a breach of the agreement. They would not make the assignment void.

The next position is, that the installment in question had not become payable by the defendants’ testator, because at the time it would otherwise have become payable there was a lien upon the land. The contract provided that the loan was to be made in installments, “provided all hens are first removed.” The lien referred to remained upon the land at the time the plaintiffs demanded payment of their order. After that, and before the action was begun, three other liens were filed. All these hens were filed under the statute in reference to mechanics’ liens. The contract also provided that should Haas “fail to keep the houses free from liens under the mechanics’ law, or allow any hens to remain on record after either of said installments become due, then the said party of the second part at the option of the said party of the first part, hereby forfeits all claim under this contract for a conveyance of said lots, or either of them, or for any work or materials placed thereon.’’ Both of the provisions referred to, as they were for the benefit of the testator, could be waived by him. He did waive them. When one of the plaintiffs presented the order as due, the testator paid him a certain sum of $1,000, not paying the remainder pi the amount on the ground that he had paid to Haas the remainder. It appeared that as a fact, besides these two sums, the testator had reserved the amount of the lien and interest. By doing this, he waived the removal of the lien as a condition precedent of payment. He took upon himself the office of removing the lien with the money he reserved. If the plaintiffs rely upon this, they of course, should yield to the deduction from their claim of the amount of the lien, if there were a valid hen. The defendant, however, on the trial, made no claim for a deduction, using the evidence as to the Hen only for the purpose of their position that the installment was not payable provided there was a Hen. As to the subsequent Hens, the contract did not declare that the obligation to pay should depend upon their removal, but that the testator might, at his option, consider that Haas forfeited his claim to a conveyance or the reverse. That option was exercised by giving the conveyance.

The defendant’s counsel asked, and the court refused to charge the jury, ‘ ‘ That if they beHeve that the plaintiffs and Mr. Kendall both treated the order as requiring an acceptance, and as creating no Hability without an acceptance, and no claim having been made by plaintiffs for payment of the whole amount, or that Kendall should not pay Haas until the order was paid, the plaintiffs cannot recover.” There was no testimony that Mr. Kendall, the testator, did not himself know the character of the order and the rights of the plaintiffs under it, after they had given him notice of its existence. Upon that notice to him he became a trustee, equitably,- for plaintiffs, with definite obligations to them. The jury found against one version of an interview with the testator that referred in a certain way to the subject intended by the request. The other version did not comprise any testimony, either that Mr. Kendall did know what the character of the order was, or that the plaintiffs ever told him what their belief as to his legal obligation under the order was. When he made part payment to the plaintiffs, his excuse for not. paying the remainder was that Haas had told him that the plaintiffs had agreed to take Haas’ note, for the sum Haas then required, and he had therefore paid the sum to Haas. The plaintiffs had not so agreed. It is true that the plaintiffs believed that the order and notice of it to-Mr. Kendall did not create an obligation to pay of a legal land, and only of a moral kind. In this they were mistaken. The order was an equitable assignment, and mere-notice of it to Mr. Kendall, without acceptance by him, bound him to pay to no other person than the assignee,, and to him on demand (Field v. Mayor, 6 N. Y. 179 ; People v. Comptroller, &c., 77 Ib. 45, and many other cases). The plaintiffs possessed the right described, and whether-they knew or did not know this, their right to an action was the legal consequences of the legal obligation. They never told Mr. Kendall what their belief was, and thereby led him to pay to Haas.

The order was based upon a consideration. That was. partly it being a security for an indebtedness by the maker to them for materials used in the houses afterwards mortgaged to Mr. Kendall, and partly as security for the payment of an indebtedness of a like kind thereafter to-be received.

What has now been said, has referred to all the objections made for the appellant on the argument.

The defendants’ exceptions are overruled, and judgment with costs for plaintiffs is directed to be entered on the verdict.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    JOHN S. RIGGS, Respondent, v. THE COMMERCIAL MUTUAL INS. CO., Appellant.

      Decided March 3, 1885.

      Insurance—what interest is insurable.

    The stockholders in a corporation have no insurable interest in the property of the corporation.
    Before Sedgwick, Ch. J., and Truax, J
    Appeal from judgment entered in favor of plaintiff, upon the findings of a judge sitting at trial term, without a jury.
    The action was on an insurance policy which purported to insure J. T. Tobias on account of whom it may concern, in case of loss to be paid to Andrew Simonds. The subjects of insurance were the same as in the case of The Merchants’ S. S. Co. v. The Commercial Mutual Ins. Co. (ante, p. 444). The judge found and decided that the plaintiff was entitled to recover.
    Other facts appear in the opinion.

      Oliver Drake Smith, attorney, and David J. H. Will-cox, of counsel for appellant,
    on the question on which the court decided the appeal, argued :—The parties claiming herein had no insurable interest. Stockholders in a corporation cannot insure the property of the corporation in their own names as belonging to them (Phillips v. Knox, &c. Co., 20 Ohio, 174). This is fatal to a recovery by any of these parties, because whatever interest any of them have is merely a claim upon the stock of Tobias.
    Burrill, Zabriskie & Burrill, attorneys, John E. Burrill and George Zabriskie,

    of counsel for respondent, on the question on which the court decided the appeal, urged :—Tobias as a stockholder of the Merchants’ Steamship Co., the owners of the Falcon, had an insurable interest (Seaman v. Enterprise Co., 18 Fed. Rep. 250).
   Pee Curiam.

This was an action to recover for the same loss that was the subject of the case of The Merchants’ S. S. Co. v. The Commercial Mutual Ins. Co. In the present case, the plaintiff is assignee of one Tobias, whose interest, if any, was insured. The defendants claim that Tobias had no insurable interest. The only ground of claim that he had an interest was his owning thirty-six shares of the capital stock of the plaintiff in the above mentioned case, the .owner of the vessel. It is not perceived that he had any interest in the vessel. He was not legal or equitable owner of any part, nor of its earnings, nor any lien in respect of either.

For this reason the judgment should be reversed and a new trial ordered, with costs to abide the event.


author: Per Curiam.

text:
    BERTHA LAUBHEIM, Appellant, v. DIE KONINGLYK NEDERLANDSCH STOOMBOOT MAATSCHAPPY, Respondent.

      Decided March 5, 1885.

      Ship-owners■—liability of owners to passenger for ineompeteney or negligence of surgeon.

    An action by a passenger against the ship-owner, to recover damages, for the unskillful and negligent treatment by the ship’s surgeon, will not lie, unless perhaps upon an allegation (sustained by the proof) of intentional mistatement or misrepresentation as to his skillfulness and competency.
    Before Sedgwick, Ch. J., Tritax and Ingraham, JJ.
    Appeal by plaintiff from judgment dismissing plaintiff’s complaint, entered upon a direction of the judge at trial term.

      The plaintiff was a steerage passenger on one of the steamships belonging to defendant, plying between Rotterdam and New York. When at sea, she fell on the deck of the vessel and fractured the knee-cap of one knee ; she was taken in charge by the ships-surgeon, and, as was claimed, was treated so unskillfully and negligently that after she landed it became necessary to amputate the leg. Evidence was given to establish the facts. It was proved that the ships-surgeon had been on the defendant’s steamboats for several years, and for his services received a salary from the defendant annually, and a certain sum for each passenger carried.
    The court dismissed the complaint.

      Stern & Myers, attorneys, and of counsel for appellant,
    argued :—I. The common carrier by means of ocean-going steamers is bound to protect the lives and persons of those in his charge by all reasonable means. Common knowledge and experience dictate the imperative necessity of the presence of a competent surgeon to relieve against the accidents which are liable to occur upon the high seas during a voyage of over two weeks, during which time the passenger is far from land and absolutely unable to obtain succor except such as is provided by the vessel. It is not necessary to take the opinion of the jury upon this question any more than it would be to take the jury’s opinion as to whether or not it would be requisite to have an engineer or pilot. The court, from its own experience and knowledge of human affairs, ought to direct that it is obviously requisite, as a matter of law, to have such an expert as one of the ship’s staff.
    II. The least, however, that can be said is that it is a question for the jury to determine whether or not a company would be culpable if it sent a vessel to sea without having a surgeon on board as a part of the vessel’s staff. This the jury would determine in view of the nature of the hazards and of all the circumstances in the case.
    III. If it were, as matter of law, the bounden duty of the defendant to have a physician on board as a necessary part of the ship’s staff, or if the jury would have been justified in finding the company negligent for not providing such a physician, then the court erred in taking the case from the jury. In either of these cases, any negligence of the physician would have been negligence of a servant whom the company was bound to have in its employ ; and the rule- of respondeat superior would apply in its full force.
    IV. In any event, inasmuch as the company, in this case, in conformity with a universal custom, did have a physician on board, in its service and in its pay, bound in “duty to visit all over the vessel twice a day, and to take care of the sick and injured,” that being the reason “why he was employed and paid by the defendant,” his acts of necessity became the acts of the company, and the latter became responsible for his neglect as for the negligence of any other servant in its employ and pay. No good reason can be suggested why, in this last view, the rule of respondeat superior does not apply.
    V. The capacity in which the physician on board acted in this case was a question of fact for the jury. It was for the jury to say whether he was in the company’s employ and pay, the same as any other servant it had in its employ, and that he was held out as such, and in the present instance acted as such, or that he was merely on board the vessel, not as a servant of the company, but open to engagements by passengers as their servant, if they saw fit to engage him. The court had no right arbitrarily to determine the question.

      Philip J. Joachimsen, attorney, and of counsel for respondent,
    among other things, argued :—I. The defendants, as carriers of passengers, owed no duty to the plaintiff or any other passenger, to provide and furnish any physician or surgeon to attend to and care for them in the event of sickness and accident, as claimed by plaintiff.
    II. Even if Dr. Goldberg is himself hable to the plaintiff, the defendants are under no hability, A carrier of passengers having assumed to furnish a surgeon for passengers injured, its duty is discharged when it provides a surgeon possessing only ordinary skill, and for any damage caused by the negligence of such surgeon, the surgeon and not the carrier would be responsible (Secord v. St. Paul, &c. Ry. Co., 18 Fed. Rep. 221). A fortiori the defendant here, to whom the injury to the plaintiff requiring a surgeon can in no wise lie imputed, cannot be liable for the malpractice of a surgeon in the particular case, there being no proof that Dr. Goldberg as a general physician did not possess ordinary skill.
   Per Curiam.

The defendant’s liability to answer to the plaintiff must rest upon some violation of duty that was created by the relation of carrier and passenger, or upon a breach of some implied agreement in the contract that established that relation. The complaint avers that the defendants agreed “to furnish and provide her, the plaintiff, with all means and appliances for her safety and comfort throughout said passage . . including among other means, a good, competent and skillful physician and surgeon, to properly attend to and care for her in the event of sickness or accident,” and the case necessarily is confined to an obligation to furnish surgical and not medical aid. There is, in respect of seamen, an obligation in the law merchant to furnish certain kinds of medical aid, but not surgical aid. The law has not, as matter of fact, made the contract between a carrier and passenger to imply that the passenger shall be furnished with surgical help for the result of an accident; that is, there is no such implication in the contract itself. If there were, it would exist, if only one or only a few were to be taken in the steamer. The creation of the implication must then depend upon the character of the circumstances which will surround the passenger during his voyage. In the present case the duty is said to exist in view of the great number of passengers that the ship carried and was meant to carry. This fact gave rise to a probability that a certain proportion of the individuals composing the great number would be sick or meet with accidents. The probability does not designate which of the individuals will suffer. When the plaintiff bought her ticket, and went on board, the risk of accident to herself was not increased by the fact that one thousand more made the. voyage. She and the owners contracted concerning herself individually and not concerning the oth ers. ■ The obhgation to regard the probability that some undesignated individuals, out of a large number, would need surgical aid, is of a moral nature which does not become of legal force, until the law-makers make a positive command concerning it.

The complaint also places the claim upon averments that the defendants by employing a ship-surgeon and having him there to attend upon passengers needing his help, represented that the surgeon was “fully competent to render proper services in such case, and that said person was not a skillful or competent surgeon or physician as defendants then and there well knew.” If an action of this Idnd might he under some circumstances, it would not he in this case without an allegation of intentional misstatement or misrepresentation sustained by proof. 1ST 0 proof of the kind was given.

There was also a suggestion that the surgeon was the servant of the defendants, and they were liable for his negligence. This is inadmissible, because, for the reasons that have been given, the surgeon’s act did not cover the performance of any obhgation of the defendant to the plaintiff. If there had been no surgeon at ah, the plaintiff would have suffered to an extreme degree, and with a risk to her life or health, that the testimony does not describe. The defendant, not in the performance of an obhgation, but voluntarily places the surgeon on board, and the plaintiff voluntarily calls upon him for his services of the kind they were in fact.

The direction of the learned judge below was correct, for the reasons given by him.

Judgment affirmed, with costs.


author: Sedgwick, Ch. J.

text:
    ANDREW H. HAMMOND, Respondent, v. JAMES MORGAN, Appellant.

      Equity action—Issues tried, by the jury on the pleadings—Equity judgment on verdict—Action to compel delivery and action to recover possession of written instrument—Motion to set aside judgment—Strihing, cause from special term calendar, effect of.—Judge's charge.

    Where the issues in an equity action are, upon defendant’s demand, tried by the jury upon the pleadings, and the jury find for the plaintiff, the proper equity judgment called for by the facts, either in terms, or presumptively found by the verdict, may be entered.
    The same facts may sustain both an equity action to compel delivery, and common law action to recover possession of a written instrument, with the addition that in the former, it should appear that damages will not make a full remedy ; and the plaintiff has an election of the remedies.
    Consequently, where the plaintiff brought an action in respect of a certain assignment and release alleged to be in the possession of defendant, and prayed that defendant be ordered to return them to him, and that he have such damages for detention as a reference might show,—Meld, that he had exercised his election and brought an action in equity.
    In case of a motion by defendant to set aside a judgment, entered in such an action as above indicated by the direction of the trial judge, upon a verdict for the plaintiff (the issues having been tried on the pleadings upon the defendant’s demand), whereby it was adjudged that defendant forthwith deliver to the plaintiff the instruments in question, the motion being made on the ground that the judgment is unauthorized by and in excess of the verdict, and is a judgment in equity and not at law, and directs the doing an act by the defendant instead of an award to the plaintiff, and does not award a sum of money in case the property was not delivered,—Eeld, 1. That questions of irregularity of practice could not be raised. 2. That the question as to whether the judge erred in adjudicating that the plaintiff was entitled on the facts found to equity relief could not be raised, that being the subject of an appeal. 3. That on the above principles the motion was properly denied.
    The striking a cause from the special term calendar on the ground that it is an action at law, only determines that the issue of fact should be tried by a jury. It does not determine that if the facts found by the jury showed that the plaintiff was entitled to an equity remedy, he should be deprived of it, because a jury, instead of a judge, found them.
    The equitable action for delivering up and surrender of instruments is not abrogated.

      Decided March 30, 1885.
    A charge to the jury that there are no equities in the case, but that it is one of law, is not in the nature of an adjudication as to what the plaintiff’s remedy was.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by defendant from order denying his motion to set aside a judgment directed by a judge to be entered upon a verdict for plaintiff.
    The complaint alleged that the plaintiff delivered to the defendant a certain written assignment of letters-patent, made by the executors, etc., of one Matthews ; “that said assignment was delivered to the defendant in trust to be returned to the plaintiff, etc., but defendant has failed, and refused to return the same to the plaintiff, and still wrongly refuses to return the same, although the return thereof has been duly demandedthat “in or about, etc., a paper in the nature of a release was executed by the firm of E. P. Needham & Son, etc., to the plaintiff, whereby the plaintiff was wholly released from certain obligations due, and contracts to and with the said firm, of which release the defendant obtained possession, and still retains the same without right thereto, and in violation of plaintiff’s right to the possession thereof, although a demand for a delivery thereof to plaintiff has been duly made on the defendant and refused ; that said assignment and said release, and each of them, is of great value to the plaintiff, and the retention thereof by the defendant as aforesaid, has greatly damaged the plaintiff. Wherefore, plaintiff asks judgment of this court, that the defendant be ordered to return said assignment, and deliver said release to the plaintiff, and that the plaintiff have such damages for the detention thereof, as a reference for that purpose may show that plaintiff has suffered therefrom, besides the costs of this action.”
    The answer denied that the instruments referred to were ever in trust or otherwise delivered to the defendant to be returned, “and denies that said or such papers or instruments, or any or either of them, or any such instrument or instruments, were ever executed by the said parties for that behalf in the complaint mentioned, or any of them, and denies that said or such instruments are now or ever have been in the possession, legal or manual, of this defendant, ” etc.
    The plaintiff’s attorney originally gave notice for a trial of othe issues by a jury, but afterwards gave notice for a trial at special term. The defendant’s counsel moved at special term that the cause be stricken from the special term calendar. The affidavit read upon the motion in the matter which is the subject of the appeal, declared that the motion to strike from the calendar was on the ground c ‘ that the action was at law, and the defendant desired, and was entitled to a trial by jurythat the judge “ ordered the cause to be stricken from the said special term calendar.” Thereafter, the plaintiff gave notice of trial before a jury. The affidavits show that there was a trial, but do not disclose what proceedings were had thereon, excepting that the “defendant herein was never examined in this cause, otherwise than as a witness on his own behalf at the trial thereof, and upon such examination he testified without qualification that he had never received or had in his possession either of the paper writings mentioned in the complaint, and he was corroborated as to each, by other witnesses; that the court on the trial of the cause distinctly and especially charged the jury that the cause was an action at law, that there were no equities involved, and the only questions were, did the papers exist, and did the defendant have them in his possession,- when they were demanded of him ? And at defendant’s request, he specially and distinctly charged the jury that if they believed the defendant’s witnesses, naming them, they were bound to find for defendant.” The affidavit for defendant proceeds to say, that the trial resulted in a “general verdict for plaintiff,” of which a copy is : “ that they find a verdict for plaintiff, and find the title to the property in suit in the plaintiff, and that he have a return thereof. Jury polled, and found unanimous. Motion for a new trial denied. Motion for stay to be heard to-morrow morning, November 11, 1884. Motion for a stay withdrawn.”
    Thereafter, on the application of plaintiff’s attorney, the judge who tried the cause made an order ex parte for judgment, which judgment was afterwards entered ex-parte. This judgment “ ordered, adjudged and decreed, that James Morgan, the defendant, deliver forthwith to the plaintiff ” the instruments mentioned in the complaint. No point is made as to the description in the judgment of these instruments.
    The notice of motion to set aside the order for judgment, and the judgment, stated its ground to be that the action is “an action at law and was tried by a jury, and that said order is not warranted or authorized by law in said action, and because it directs a judgment not warranted by the verdict and in excess of the verdict; also to modify the judgment entered herein and make the same conform to the verdict herein, by striking out therefrom the language directing defendant to deliver, and substitute language adjudging the title of the property to plaintiff and adjudging a return thereof to him. Or else that said judgment be vacated on the ground of irregularity, for that it is unauthorized by the verdict and is in excess of the verdict and appears to be a judgment in equity and not at law and appears to direct affirmatively the performance of an act by defendant, instead of containing an award to plaintiff, and does not in addition to such award provide in the alternative for the recovery of a sum of money, incase the property is not delivered.” The motion was denied. •

      Edward S. Babcock, attorney and of counsel for appellant,
    on the questions considered by the court, argued : —I. The order for judgment made and entered November 14, 1884, is irregular and should be vacated, a. It is irregular because it is a departure from that method of procedure required by. the nature of the case, settled by the law, and provided by an imperative statute of practice, viz., the Code. b. The nature of the case is an action at law of the genus replevin and species detinue, and requires a trial by jury. It was originally an action of debt (2 Beeves’ Hist. Eng. Law, title Detinue). By settled practice of the law during centuries, it was triable by jury, because it was an “ action at law” '(Bacon’s Ab’t, title Detinue; Chitty’s Pr. title Detinue; Tidd’s Pr., title Detinue; Graham’s Pr. title Replevin; Beeves %\bi supra). And in this state by statute (1 Bev. Laws, 91, § 1; Bev. Stat. 5 Ed. 845, § 1; Code Civ. Pro. § 968, sub. 2, § 1726). c. The whole issue therefore was with the jury, and their verdict was the sole legal authority for a judgment. After the trial of an action at law before a jury, and verdict by the jury, the next regular step in the cause is to the clerk. There were no issues framed, and no special facts found, and no consent or agreement by the parties that the jury should pass on questions of fact and the court make a direction for judgment thereon. Such a consent must appear on the record (Lentilhon v. Mayor, 3 Sand. 722). Here the jury did not pass upon anything less than the whole issue, and their verdict shows it (Code, § 1189). This order for judgment cannot be sustained under any provision of the Code. It is not covered by section 1221, for there was no issue of law in the case ; nor by section 1224, for it was not an action triable by the court, and no specific questions of fact were tried by jury, the jury tried the whole issue ; nor by section 1228, for the whole issue of fact was not tried by a referee nor by the court, without a jury. It is not an interlocutory judgment, for the action was not triable, nor tried by, the court; nor a decision, for it does not state any findings of fact or conclusions of law in addition to the direction for judgment as provided by section 1022. Indeed, it could not be such, for the court did not and could not try the whole issue of fact.
    II. The judgment entered in this action is irregular. 1. Because it purports to command the defendant to do a certain act as if it were a judgment in equity. 2. Because it is not the judgment imperatively required by law, in that it does not award to the plaintiff the possession of the property and the sum fixed as the value thereof to be paid by the defendant if possession thereof is not delivered to the plaintiff (Rastell, title Detinue ; Bac. Abr. tit. Detinue ; 2 Reeves’ Hist, of Eng. Law, tit. Detinue ; Tidd’s Pr. Am. ed. 1856, m. p. 931; 1 Chitty, 12 Am. ed. m. p. 125 ; Paully v. Holly, 2 W. Blacks. Rep. 853 ; Selwyn’s Nisi Prius, 6 ed. 670; 1 Rev. Laws, 91, § 1 et seq. 3 Rev. Stat. 5 ed. 846, §§ 6, 10, 13; Code of Pro. § 277; Fitzhugh v. Winan, 9 N. Y. 559 ; Dwight v. Enos, Ib. 470 ; Gallarati v. Orser, 27 N. Y. 324 ; Code, §§1730,1731, 1375, 718, 1241, 968, 1726, 1241, 1373 ; Haight v. Haight, 7 Hun, 87 ; 2 Chit. Pl. ed. 1855, 592, 593).
    III. This judgment, failing in every respect to comply with the law, is an irregularity, a very grave one indeed, and amounting to a perversion of law and justice ; but still irregularity is its distinguishing characteristic. It is the form and manner in which the thing exists that causes the mischief. And being such an irregularity, the proper mode of attacking it is by motion at special term, and not by exception and appeal (Ingersoll v. Bostwick, 22 N. Y. 425 ; Johnson v. Carnley, 10 Ib. 579 ; Young v. Atwood, 5 Hun, 225 ; First Nat. Bank v. Kelley, 57 N. Y. 34).

      Marshall P. Stafford, attorney and of counsel for respondent,
    on the questions considered by the court, argued :—I. The trial justice had power to direct what judgment should be entered upon the verdict (Code Civ. Proc. § 1189 ; Scott v. Morgan, 94 NY. 508 ; Wright v. Nostrand, 94 Ib. 31; Carroll v. Deimel, 95 Ib. 254).
    II. The action is one for specific performance. Where the value of property the possession of which is desired cannot easily be shown, the court has equity power to decree its delivery (Brooks v. Johnson, 93 N. Y. 337). The difficulty of proving the value of the papers sued for here is manifest, while the fact that they are or may be of very great value is equally manifest. Their delivery therefore should be decreed, and the complaint is clearly drawn to secure this result.
    III. The appellant has no right that the judgment should be in the alternative for money in lieu of the property (Haight v. Haight, 7 Hun, 87).
    IV. If the order made by the trial judge were erroneous, defendant’s remedy is by appeal and not by motion to vacate. There is certainly nothing irregular in the order of the trial justice directing the form of judgment to be entered. He assumed and exercised the power to make the order. If he erred in so doing, the error is one of law, and the only remedy is by appeal and not an application to some other judge to vacate the order. The judgment entered is in exact accordance with the order directing judgment. There can therefore be no claim that there is any irregularity in it.
   By the Court.

Sedgwick, Ch. J.

The learned counsel for the defendant maintains that the action is at law of the genus replevin, and requires a trial by jury. It is to be observed that the defendant has had a trial by jury. It is, however, not certain that the action is in the nature of replevin or detinue. The same facts that would give in respect of a right to recover possession of a written document, a remedy at law, may also give a remedy of an equitable kind, at the election of the plaintiff. “But there are cases of personal goods and chattels, in which the remedy at law by damages would be utterly inadequate and leave the injured party in a state of irremediable loss. In all such cases, courts of equity will interfere and grant full relief by requiring a specific delivery of the thing which is wrongfully withheld ” (Story Eq. § Y09). In the note to that section a reference to a condition of things stated in the complaint as to part of the property, is applicable. “Belief will also be granted, when the party in possession has acquired such possession through an alleged abuse of power on the part of one standing in a fiduciary relation to the plaintiff.” The complaint says that the defendant received the assignment in trust. In Jackson v. Butter (2 Atk. 306), the bill was to recover possession of a mortgage and an assignment of it. The chanceller said the plaintiff might have had an action of trover, but then he could only have damages for the detaining, but not the deeds themselves, and therefore is proper in bringing a bill here for the recovery of his deeds.

The same facts may sustain the action in equity and the action at law, with the difference that in the former it should appear that damages will not make a full remedy. If this action had been tried as an equity action is usually tried, and all the facts had been formally found by the judge that have here been found by the jury, it would have been no ground to set the judgment entered on the findings aside, because the complaint did not aver and the judge did not find, that the plaintiff would not have redress by receiving an amount as damages. Nor indeed, would that be held error on appeal if no question as to it had been raised on the trial. It cannot in such a proceeding as that below, be determined that the intrinsic nature of the documents claimed did not show that the plaintiff was entitled to a judgment, that the defendant deliver, etc.

The jury at the instance of defendant determined all the issues of fact in favor of plaintiff. They found that all the facts stated in the complaint existed, and they also found for the plaintiff, so far at least as presumption goes, that the defendant at the beginning of the action held possession of the assignment and release. Thereupon, the plaintiff claimed, that upon these facts, the law gave him the remedy he afterwards obtained. He had demanded in the complaint a relief of that kind. He did not ask the usual judgment at law. The judge who tried the case granted the application. This was done ex parte and upon no findings of fact. Neither of these things were relied upon on the motion to vacate, nor did the defendant claim that there should be a further trial at special term, if such a judgment were to be demanded. The ground was definite, that the action was at law and the verdict did not authorize the judgment. But it has already been considered that it does not appear that the action was at law, and certainly the verdict per se is not unconsistent with the judgment that was entered. There is a semblance of irregularity in trying an equity case, as to the facts solely before a jury, without a special order for it. The plaintiff however, attempted to try the issues before a judge. The defendant objected to this and had the case stricken from the special term calendar, on the ground that it was an action at law. Such perhaps, though that does not appear, was the ground on which the court directed by implication that if the plaintiff proceeded to trial, he must do so before a jury. But his order had no further effect than to determine for the purpose of trying the issues of fact, that the jury should pass upon them. It did not operate to determine, that if the facts found by the jury upon the pleadings as they stood, showed that the plaintiff was entitled to an equity remedy, he should be deprived of it, because a jury instead of a judge had found all the facts for plaintiff. It is supposed that the judgment is against the direction of the Code of Civil Procedure, sections 1726, 1730, 1731; Fitzhugh v. Wiman (9 N. Y. 559) ; Dwight v. Enos (Ib. 470) ; and Gallarati v. Orser (27 16. 324). These cases and these sections should be applied to actions where the plaintiff claims a legal remedy. The sections were not intended to abrogate any remedy in equity that would exist after they were passed, and there is nothing that tends to show that they were meant to destroy the equity remedy.

The practice in the case was unusual, but there is nothing to show that the judgment actually entered was not a mere conclusion of law from the facts found by the jury, after the defendant had demanded a jury trial. It is easily to be supposed that this Mnd of a trial waived all questions of practice, so far as defendant was concerned ; but the motion below was not placed upon matters of practice, but solely upon the compatibility of such a judgment with the verdict that was rendered in such a case. It should, perhaps, be noticed, that the affidavit states that the learned judge in charging the jury, said that there were no equities in the case, but that it was one of law. This did not injure the defendant, and was not in the nature of an adjudication as to what the plaintiff’s remedy was. It did not affect the merits of the decision of the judge, when he considered the nature of the remedy the plaintiff was entitled to. I again point out that the defendant did not ask that the judgment should be set aside, because notice of application for it was not given, or because the judge had made no finding of fact. The ground was, that it appeared from the pleadings and the verdict, that the plaintiff could have only a judgment that was appropriate in an action at law. If the judge erred in adjudicating that the plaintiff was entitled on the facts found by the jury to equity relief, that should be the subject of an appeal. The matter relates not to the form of the judgment, but to a substantial part of a claim for a certain kind of relief.

Order affirmed, with $10 costs, and disbursements to be taxed.

Ingraham, J., concurred.

       Note.—As to partition actions see Code Oitil Procedure, § 1544.


text:
    EDWARD ROBERTS, Respondent, v. AUGUST BAUMGARTEN, et al., Appellants.

      Decided March 30, 1885.

      Ejectment—evidence to support action.—Navigable stream, conveyance of land abutting on—Possession, insufficient evidence of-—Dam across stream—Deed from, Benson to Benson, liber 54, p. 321.
    Where the title is in dispute, the plaintiff must show either seizin or possession under claim of title by him, or some grantor under whom he claims, anterior to the defendant’s possession, otherwise the action must fail through the weakness of his own title.
    A deed by an individual conveying land abutting on a navigable stream, will only carry the grantee to high-water mark. The title to the land between high and low water, and to the bed of the stream, is in the sovereign and can only pass by his or its grant.
    Where the locus in quo is land in a navigable stream, between high and low-water mark, the entering thereon from season to season, cutting the grass growing thereon, and removing the same, is not sufficient evidence of possession as owner.
    Some of the parties under whom plaintiff claimed, constructed and maintained a dam across Harlem creek, at a short distance west of Third avenue between One Hundred and Sixth and One Hundred and Seventh streets, making a pond to the west of it (See Pandell’s Atlas, Book 8, p. 54, and Book 10, p. 55). Held, not to constitute any claim of a right to land under water under the creek to the east of it.
    In the deed from Benjamin Benson to Peter B. Benson, recorded liber 54, p. 321, the phrase “ mill stream ” in the description,—Held, under the evidence to refer to a race between two ponds and not to the creek between the dam and Harlem river. If, however, it did refer to that creek, and if the description conveyed the land under the stream,—Held, under the evidence, that it was not intended to convey the land under the creek east of the dam.
    From above principles held that plaintiff had neither shown seizin nor a possession under claim of title prior in time to defendant’s possession of the locus in quo, and consequently a judgment in his favor should be reversed.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.
    Appeal by defendants from judgment entered against them, on findings and conclusions by a judge trying the action without a jury, by consent.

      The action was in ejectment.
    The facts sufficiently appear in the opinion.

      Cephas Brainard, attorney, and of counsel, and John E. Parsons, of counsel, for appellants,
    on the question considered by the court, argued :—I. To make out his case the plaintiff was compelled to prove title in himself and in those through whom his claim of title was derived (Lamont v. Cheshire, 65 N. Y. 30; Wallace v. Swinton, 64 Ib. 188).
    II. The special term erred in finding that the premises described in the complaint were conveyed by the deed from' Benjamin Benson to his son Peter. (1) Ño title was proved in Benjamin Benson to the bed of Harlem Creek. (a) The deed to him from Simon Johnson did not purport to convey the bed of the creek; on the contrary, the premises described extended “ southerly to Harlem Mill Creek.” (b) The testimony of Mrs. Van Arsdale as to the creek was that her father (Benjamin P. Benson, son of Peter) only used the creek “the same as any body else “ for navigation“it was public “a public stream,” “like all waters are, you know.” (2) The testimony of Mrs. Van Arsdale for the plaintiff, of Mr. Brown for the defendant, and the maps, showed that the creek was salt water, within the ebb and flow of the tide, and navigable. The well-settled rule of law is, that in the absence of a public grant, private ownership of lands bounded on tide water extends only to high-water mark (Wiswall v. Hall, 3 Paige, 313; 13 Central L. J. 3 ; Morgan v. King, 30 Barb. 9 ; People v. Canal Appraisers, 33 N. Y. 465).
    III. If it be assumed that Benjamin Benson did own the creek, his title did not pass to his son Peter by the deed of his farm north of the creek. (1) That deed contained no words apt to convey the bed of the creek. The words relied upon are “including the mill-stream, mill and mill-pond, with all its privileges and appurtenances, and to shut the mill-dam at the south side of the said millpond, where it now lays.” (a) These words obviously applied to the stream and pond above the dam. The creek was known as “Harlem Greek.” A salt water creek differs materially from a “stream.” (b) These words do not relate to the bed of the creek. They were intended to confer upon Peter such right to the stream mentioned, as was necessary for the use of the mill, and nothing more, i. e., the use of. the water. (2) The right to use a stream does not imply the ownership of the bed of • the stream; and the conveyance of a stream, with no terms of enlargement, operates only to transfer the right to the use of the water (Jackson v. Halstead, 5 Cow. 216 ; Nostrand v. Durland, 21 Barb. 418 ; Wiswall v. Hall, 3 Paige, 316 ; Luce v. Carley, 24 Wend. 451; Seneca Nation v. Knight, 23 N. Y. 498 Halsey v. McCormack, 13 Ib. 296). Howard v. Ingersoll (13 U. S. R. 380), cited by the plaintiff, is not in conflict with the above. The case involved the right to use the waters of the Chattahooehe river, not any question of the ownership of the bed of the river under a grant of the river.
    IV. The deeds from Benjamin Benson to his two sons establish that the creek was treated as the division between the two farms. The argument then proceeded upon the effect of the deeds in connection with the testimony.

      Benjamin A. Willis, attorney, and of counsel for respondent,
    on the questions considered by the court, argued I. We have absolute proof of possession, under color of title, and it is to be presumed that the possession was immemorial and uninterrupted until the commencement of this action. Even in England the general practice is to begin the title so as to show the state of the evidence for a period of sixty years (3 Blacks. Comm. 196, Sharswood ed.). Forty years is the longest limitation in this country, and possession for that period confers a perfect title (Old Code, § 75 ; People v. Arnold, 4 Comst. 508 ; People v. Van Rensselaer, 5 Seld. 291).
    II. To recover in this action it was incumbent upon the plaintiff to show either title or actual possession of the premises, at the time the defendants entered (Lane v. Gould, 10 Barb. 254). The plaintiff, at the trial, met both requirements. How much stronger than needful our proof, when “a prior possession for less than twenty years, will support ejectment against one who shows no lawful title ” (Teller v. Lorillard, 10 John. 338 ; Hopkins v. Mason, 61 Barb. 469 ; Robie v. Sedgwick, 35 Ib. 319).
    HI. The subsequent possession of defendants, when rebutted by this prior possession, which is evidence of a fee, cannot prevail (Teller v. Lorillard, supra; Allen v. Broughton, 2 Saund. 111; Bakeman v. Allen, Cro. Eliz. 437 ; Jackson v. Hazen, 2 John. 22 ; Jackson v. Myers, 3 Ib. 388 ; Jackson v. Harder, 4 Ib. 202).
    IV. The word “ stream ” in the deed of Benjamin Benson to Peter B. Benson, dated April 2, 1791, comprehends “the water,” “the bed of the stream,” together with the shores and the tide-ways, banks and everything between high and low water mark (Howard v. Ingersoll, 13 How. U. S. 426 ; Woolwich on Sewers, 51; Woolwich Law of Water Courses, 3 ; Hale De Jure Maris, chaps. IV., V.). The word stream is an apt word to convey a fee (Touchstone, 89 ; 4 Kent Com. 2 ed. 467 ; Leroy v. Platt, 4 Paige, 82 ; Comyn’s Dig. Grant, E. 11; Blaine v. Chambers, 1 S. & Rawle, 169 ; Bacon v. Bowdoin, 22 Pick. 401; Whitney v. Olney, 3 Mason, 280). To add yet greater force to the construction upon which plaintiff insists, it remains to consider together the two deeds given by Benjamin. Benson, he at the date thereof having owned on both sides of the mill stream, and the stream itself. 1st. To his son, Peter B. Benson, April 2, 1791; 2d. To his son, Sam Benson, May 2, 1791, both introduced as plaintiff’s exhibits. In the first deed, he conveys not only the northern part of the farm, but the mill, mill-stream and all appurtenances, water-courses, &c., to Peter B. He desires him to use and enjoy the mill; to do this, he gives him not only the mill but the mill-stream—the whole of it. He needs must have control of it from bank to bank. How otherwise could he make dams across ; how otherwise shut down the dam on the south side; how otherwise could he take advantage of high tides and fill his interior mill pond through the flood-gates ; how otherwise could “ he so use his own as not to injure anotherhow otherwise escape committing continued trespasses ? The intent is conclusive, the description plain. But notice the description in the second deed, “All that farm, &c., bounded as follows: beginning at black oak stump, at corner of land belonging to, etc., on .the south side of Mill Creek or Pond, running thence by various courses to drowned meadows ; thence along drowned meadows or marsh, till it comes to the mouth of Mill Creek, thence westerly along said mill creek or pond to the place of beginning, being the estate of Benjamin Benson, south of Mill Creek and Pond.” The black oak stump was on the bank—not between high and low. water ; it would not grow there. The location of this stump brings the suit at bar precisely within the reasoning of Babcock v. Utter (1 Abb. Ct. of App. Dec. 27; 1 Keyes, 115). The foregoing anthority is sustained in Smith v. Slocum (9 Gray, 36); Sibley v. Holden (10 Pick. 249); Tag v. Keteltas (48 Super. Ct. 241; affirmed, 92 N. Y. 625); Robinson v. White (42 Maine, 209). Another important feature of the latter deed to Samson Benson is, that it omits the words “meadows,” “marshes” and “water courses,” which the former deed contains. Therefore, the exclusive language of the deed to Samson Benson just as effectually interprets the intent of the grantor as the inclusive language of the deed to Peter B. Benson.
    V. Conceding that the stream was originally the property of the sovereign, yet the use of the stream for mill purposes, the dam at Third avenue from 106th to 107th . street, completely across the stream, dividing it from the pond, forming a basin on the property in controversy, the mowing of both banks for ninety.years would bar any claim of the state, would create the presumption that our grantor had received a patent therefor. Here is a case precisely in point (Yates v. Van De Bogart, 56 N. Y. 526 ; Patten v. Bigelow, Peters C. Ct. 452 ; Stevens v. Hauser, 39 N. Y. 302). It is settled that a defendant cannot avail himself of an outstanding title, which is barred by the statute of limitations—it must be a subsisting available title, on which the asserted owner might recover in ejectment (Hoag v. Hoag, 33 N. Y. 473). A mere intruder, and such is the defendant, will not be allowed to set up title in a stranger (Duncan v. Harden, 4 John. 202 ; Klock v. Hudson,. 3 Ib. 375 ; Chapman v. Del. & Lack. R. R., 3 Lans. 261). The premises of the defendants, however, are at fault; while it is true that that the court of appeals have decided in Mayor v. Hart (95 N. Y. 443), that by virtue of Pongan Charter that tideway and rivers around Manhattan Island vested in the city, subject to certain equities. It is, however, equally true the city never claimed this property; it is not in the tideway of the rivers embraced in the decision; the city permitted the' stream to be crossed with avenues, &c., for the reason “that all the inland creeks, meadows, marshes and fisheries within certain bounds therein contained were conveyed to the freeholders of Harlem by a more ancient grant, that of Governor Nichols ” (Riker's History of Harlem, 252, 271).
   By the Court.

Sedgwick, Ch. J.

The judgment appealed from has awarded to the plaintiff possession of a number of lots on the south side of 107th street, commencing at a point 135 feet easterly from the Third avenue and running easterly 200 feet on that street, and then running 400 feet back to the centre of the block. Formerly, the bank of a creek ran from about the southwesterly corner of the space now occupied by the lot, to about its north-easterly comer. The claim of title made by plaint,iff does not extend to that part, that is southerly of the fine that would be made by the bank, and it would be necessary that the judgment should be modified in this respect, if it were not necessary to hold under the present facts that the judgment should be reversed, because of the plaintiff’s failure to show title to the northerly part of the lots.

The northerly part referred to was, at the time of the earliest deeds in evidence, land under water, over which the tide ebbed and flowed. This land has since that time been filled up, but there was no proof that any one under whom the plaintiff claims has ever been in actual possession of the filled-in land, unless the presumptions upon facts that will be noticed, are that there was such actual possession. It is virtually conceded, that the land of which the bank was a part, did not belong to any ancestor in title of the plaintiff. The plaintiff claims under Peter B. Benson, who, it is virtually admitted, had title to the land on the opposite side of the creek. The creek was a small body of water, that may be called an arm of the Harlem river. As the tide ebbed and flowed in it, the presumption would be that the stream was navigable (People v. Canal Appraisers, 33 N. Y. 472, opinion of Judge Davies). In this case its unnavigability was to be proved by the plaintiff. It is clear that the facts tended to show navigability in fact. The title to the land in question was then in the state or public, or in the city of New York (Mayor v. Hart, 95 N. Y. 443). No conveyance was proved to have been made by the city or the state. It therefore appears that the grantors in the deeds of Johnson to Benjamin Benson and of Benjamin Benson to Peter B. Benson, had no title nor by presumption actual possession of the land. An assumption that a grantor has title, if we assume that the deeds referred to described the land, is no proof of title. The production of a deed of conveyance upon the trial of an action of ejectment will not entitle the plaintiff to a verdict, when the title is in dispute. Nor will such evidence put the adverse party upon his defense. He must show in addition either that his • grantor had the title, that is seizin or possession claiming the title (Dominy v. Miller, 33 Barb. 386). It is hardly necessary to say that being in actual use and occupation of the upland under a deed that extended to low-water. mark would not form an adverse possession of land between high and low-water mark, for it would not be a hostile act as respected the true owner of the land under water. The only testimony as to plaintiff’s remote grantor taking possession of the land in question, is that he, from season to season, cut and took grass on both sides of a piece of water, one side of which it is assumed was the locus in quo. The strongest ground for the assumption that the witness proved that the grass between high and low-water mark was cut, is that sometimes the counsel or witness would call the grass cut sedge. The witness was eighty-five years of age, and it is apparent from her deposition that she understood only a small number of the questions given to her. It is certainly consistent with the testimony that she gave, that the grass she referred to was not grass between high and low-water mark. But if it were, such a fugitive, intermittent act as going upon land, cutting grass and retiring from it from year to year, is not an act manifesting a purpose of taking possession as owner, if there be no other proof. It is' equivocal. It may refer to a claim to own the grass and not the land. It is not continuous enough, of and by itself, to constitute a notice of claim of title likely to reach the attention of the owner. There is no need here of referring to such an act excepting upon the kind of land in question (McFarlane v. Kerr, 10 Bosw. 256 ; Smith v. Levinus, 8 N. Y. 472 ; Yates v. Van De Bogert, 56 Ib. 526 ; Wheeler v. Spinola, 54 Ib. 377). But after a careful scrutiny of the testimony of the witness, I am convinced that she did not, and did not mean to testify that her family cut the grass on both sides of the stream at a point which would indicate this land. The thing she oftenest said, was that the stream she referred to was a sluice, a race, or canal, that her father had made to connect two ponds, one of which was to the west of the land in question, and the other in such a position that the land on each side of the connecting stream would not be near the land in question. The other witness on the same matter gave testimony favorable to the defense. My conclusion on this branch of the case is that the plaintiff faded to prove any title in any of his grantors, and also any possession of the land. I do not perceive that the will of Peter Benson declares in any way, even if his declaration could make a title, that he had been in possession of any land between high and low-water marks. Nor is the keeping possession and using of the dam, any claim of a right to land under the creek to the east of it. The dam could have been used, as ib was, consistently with the ownership of the land to the east being in the public. The most that would be involved would be a claim to a right to have the tide flow over the land in question to the gate in the dam. This action has no regard to such a claim.

I am further of opinion, that the deed on which plaintiff relies for proof of title, does not describe land between high and low-water mark in Harlem creek, between the dam and that river. The description is “all that messuage, being all my estate to the north of- the mill-pond, between the fence of the widow Storm and the road leading to Harlem, including the mill-stream and mill and mill-pond, with all its privileges and appurtenances, and to shut the mill-dam at the south side of said mill-pond, where it now lays.” The only words here that can plausibly be considered to include the premises are “the millstream. ” The learned counsel for respondents claims that the creek to the east of the dam had been artificially made by the Bensons. The evidence does not seem to me to show that labor had been used on any place east of the dam. The mill-stream or canal referred to by Mrs. Van Arsdale and Mr. McG-own was, as I have said, a race or sluice between the two ponds, so that if, in any sense, the creek below the dam was a mill-stream, there were in fact two mill-streams, and the collocation of the words in the description, applied to the physical facts, show that the deed meant the stream between the ponds that kept the mill supplied with a water-power it would have greater than if it depended alone upon the pond nearer to it. But if mill-stream, did mean the creek between the dam and the river, and if the description conveyed the land under the stream, which, however, is not decided, it is not a necessary result that the land in question was meant tobe conveyed. We must take it that the intention was to convey land in which the grantor had an estate. He refers to his estate in the land north of the pond, and is presumed to have referred to such estate as he liad in what was also conveyed. Now, it is manifest, that a stream that ebbs and flows does not describe a quantity of land under it of fixed dimensions. The land between high and low-water mark was not always under the stream and the presumption from the general description of the millstream, would be that the land above low water was not intended to be conveyed in favor of a person owning to low-water mark (Wheeler v. Spinola, 54 N. Y. 377). In this case Benson owned no part of the land under the stream formed by the creek east of the dam. It should not for that reason be inferred that the description was intended to convey more than it would if he had been or claimed to be owner of some of the land.

My opinion is that the judgment should be reversed, and a new trial ordered, with costs to abide event.

O’Gorman and Ingraham, JJ., concurred.


author: Ingraham, J.

text:
    MATHEW F. NORTON, Respondent, v. BERNARD DREYFUSS, Appellant.

      Articles to be manufactured—acceptance of.

      A bill of articles manufactured to order, was presented to the defendant, a day or two after the delivery; defendant refused to pay on the ground that they did not conform to the contract. Three or four days after this, the bill was again presented, and payment or a return of the articles demanded. Defendant refused to either pay or return—according to his testimony, on the ground that he wished to have counsel’s advice. Two or three days after this, defendant wrote a letter offering to return, but the evidence clid not show it bad been sent to plaintiff. Held, that defendant had not rescinded the contract, but had accepted the articles, and was liable for the contract price ; and that, the defenses set up not being sustained by proof, a direction of a verdict for the plaintiff was proper.
    Appeal from a judgment entered on the verdict of a jury by direction of the court.
    This action was brought to recover the price agreed to be paid by defendant to plaintiff for certain medallions, plates, frames and backs, to be by him manufactured for defendant. The complaint alleged that plaintiff had manufactured and delivered the articles.
    On February 14, 1883, the defendant wrote the following letter, which, however, was not shown to have been sent to plaintiff :
    New York, Feb. 14, 1883.
    “ M. F. Norton, Fsq., 140 Wooster St., City-:
    “Your brass dies for looking-glass frames, as also for the four medallions representing Asia, Europe, Africa and America, are at your disposal. I had the impression that I had a lien on them, for the damage caused by your failure to comply with your agreement, but my attorney advises me that I have no legal right to hold said dies for any such purpose.
    “Send for the dies whenever you wish; they are totally worthless to me.
    “ Yours, etc.,
    “Bernard Dreyfuss.”
    The defenses and other proofs appear in the opinion.

      Franhenheimer & Rosenblatt, attorneys, and John Franlcenheimer, of counsel for appellant,
    on the questions considered by the court, argued :—I. By directing a verdict for the plaintiff, the court must be regarded as ruling that the plaintiff was entitled to a verdict, even upon the case as presented by the defendant’s testimony, and in tdew of any inferences which a jury might legitimately draw from the defendant’s testimony, or from the whole evidence in the case (Royce v. Watrous, 7 Daly, 87; Stine v. Flower, 47 N. Y. 566 ; Miner v. Mayor, 5 J. & S. 171).
    II. Even if the ruling of the court be correct, that the refusal to return the dies on demand was an acceptance of the same, and makes defendant liable for the price, it was a question for the jury whether upon all the evidence there was an absolute refusal to return the dies. The defendant denies that plaintiff made a personal demand upon him for the dies, and states that after he had absolutely rejected the dies and refused to pay for them, his foreman asked him whether he should surrender the dies, and plaintiff telephoned to the foreman to hold the same until he could see his lawyer. There was no absolute refusal; it was simply a direction to wait until defendant could ascertain his rights.
    III. There is no absolute rule of law that the buyer’s failure to return or offer to return goods upon discovering their insufficiency, is to be deemed, per se, an acceptance of the goods. It is a question for the jury whether, under all the circumstances, the buyer’s conduct is to be interpreted as a ratification of the bargain (2 Smith L. C. 16, 5 Am. Ed.). The counsel commented on the cases of Reed v. Randall, 29 N. Y. 358 ; McCormick v. Sarson, 45 Ib. 265 ; Dutchess Co. v. Harding, 49 N. Y. 321 ; Gaylord Mfg. Co. v. Allen, 53 Ib. 515 ; Parks v. Morris Ax and Tool Co., 54 Ib. 586.
    TV". Under this point the counsel assumed that there was in the answer a counter-claim or recoupment of damages arising .out of a breach of warranty that the articles were fit for the purposes for which they were sold; and based an argument on such assumption.
    V. If the plaintiff agreed, as testified by the defendant, to make the dies to defendant’s perfect satisfaction, the plaintiff could not recover unless the defendant was satisfied with the dies. The mere refusal to surrender the dies on demand until defendant could obtain advice of his counsel, was not, as matter of law, an acceptance of the dies as satisfactory, in the face of defendant’s absolute rejection of the same as unsatisfactory and wholly worthless. At least it was a question for the jury whether plaintiff did agree as aforesaid, and whether defendant did accept the dies as satisfactory (Gray v. Central R. R. Co., 11 Hun, 70 ; Tyler v. Ames, 6 Lans. 280 ; Spring v. Ansonia Clock Co., 24 Ib. 175 ; Grant v. Burch, 26 Ib. 376 ; Brown v. Foster, 113 Mass. 136).
    VII. The plaintiff, by demanding a return of the goods, himself rescinded the sale (Thornton v. Wynn, 12 Wheat. 193 ; Long v. Preston, 2 Moore & P. 262 ; Healey v. Utley, 1 Cow. 345). There can be no valid claim that defendant did not consent to this rescission. He had absolutely rejected the goods, and refused to pay for them, and in retaining the goods for the purpose of obtaining the advice of his lawyer, he did not claim to hold the goods as his own, but as the goods of the plaintiff, upon which defendant thought he had a hen. In 2 Pars, on Cont. 677, 678 (side paging), it is said that plaintiff’s demand for return of goods, taken in connection with defendant’s letter offering to surrender, is a rescission. If the sale was rescinded, the mere act of the plaintiff alone, in suing upon the contract as still in force, could not reestablish the contract of sale (Fullager v. Reville, 3 Hun, 600 ; Morris v. Rexford, 18 N. Y. 552 ; Kinney v. Kirnan, 49 Ib. 164).

      Edward S. Hatch, attorney, and of counsel for respondent,
    on the questions considered by the court, argued : —I. There was no issue of fact, as to the allegations contained in the complaint to go to the jury. ’There is no dispute as to the price of the goods having been agreed upon, there is no evidence as to any other value, there is no dispute but that all the dies were manufactured by the plaintiff, and that they were delivered to the defendant, and no evidence that they were returned to the plaintiff, and undisputed evidence that before the bringing of this action the defendant had refused, on some ground, to deliver the dies to the plaintiff upon demand. This is conclusive upon the defendant that the plaintiff was entitled to recover the full amount of the agreed price (Sprague v. Blake, 20 Wend. 61; Gaylord Co. v. Allen, 53 N. Y. 515; Bristol v. Burt, 7 John. 254; Connah v. Hale, 23 Wend. 462 ; Boyce v. Brockway, 31 N. Y. 490 ; Kingman v. Hotaling, 25 Wend. 423 ; Camp v. Pulver, 5 Barb. 91; Roth v. Palmer, 27 Ib. 652 ; Benjamin on Bales, § 1051). And the remedy left to the defendant was under either his implied or, as alleged, express warranty, and his counterclaims for money paid, on account, in excess of the value of the articles, and damages for the non-fulfillment of the contract within the time specified. The title to the dies was in the plaintiff even after he had delivered them to the defendant, until the defendant had reasonable time within which to examine them, or had formally examined them, or had exercised some act of dominion over them (See cases cited). But the act of refusing to deliver the goods, no matter on what ground it had been placed, at once transferred the title from the plaintiff to the defendant, subject, perhaps, to a vendor’s lien, and prevented the defendant from ever afterwards claiming that he had not accepted the goods (See cases cited). And it made little or no difference afterwards whether he offered to return them or not (Livermore v. Northrup, 44 N. Y. 107; Carpenter v. Manhattan Co., 22 Hun, 47). Thereupon the plaintiff had the right to bring his action for the value of the goods, or for conversion of them, or for the agreed price (See cases cited). And a sufficient causo of action is set out in the complaint to recover for their value (Dubois v. Delaware Co., 4 Wend. 285 ; Woodward v. Fuller, 80 N. Y. 312 ; Higgins v. Newtown R., 66 Ib. 604).
    II. There is no counter-claim in the answer for breach of warranty either expressed or implied, but only for damages for the. non-fulfillment of the contract on the plaintiff’s part by his failure to deliver the goods by January 1. The onus was upon the defendant to have proven what his damage was by the delivery of the goods in their present condition, which he wholly failed to do (Fales v. McKeon, 2 Hilt. 53). And the alleged damage, viz. : of prospective profits, which defendant attempted to prove, could not have been considered by the jury if he had been allowed to put in the evidence (McColl v. The W. U. Co., 12 J. & S. 487; Griffin v. Colver, 16 N. Y. 489 ; Cassidy v. Le Fevre, 45 Ib. 562 ; Washburn v. Hubbard, 6 Lans. 11). But there was a further reason why the defendant could not recover on this counter-claim ; he consented that the goods be returned to the plaintiff to be corrected, after the alleged time that they were to be delivered, Without any restrictions or agreement of any kihd, and accepted them thereafter, and thereby he waived any damage that he may have actually suffered by reason of the failure to deliver within the agreed time (Bock v. Healy, 8 Daly, 158).
   By the Court.

Ingraham, J.

The dies and medallions were delivered to the defendants in November and December, 1881. They were not satisfactory, and were returned to plaintiff to be improved. Plaintiff attempted to improve them, and finally delivered them to defendant a day or two before February 8, 1882. On February 8, the plaintiff called on defendant and presented a bill for the articles delivered, and demanded payment, Defendant said they were not satisfactory, did not conform to the contract, and that he would not pay for them.

So far the evidence is undisputed. Plaintiff testified that three or four days after the presentation of the bill he called again on defendant and demanded payment of the bill or the return of the dies ; that defendant refused to pay or deliver the dies.

The defendant testified that he was not present at the second demand, but that he was telephoned to from the factory that Mr. Norton had come or had sent for the dies, and that he, defendant, telephoned back not to deliver' them, that he wished to have counsel’s advice as to how he should act in the matter.

The facts that defendant had refused to pay the bill, and demand was made for the return of the property, which was refused, were not disputed. Nor was there any evidence to show that at any time defendant offered to return the dies to plaintiff until February 14, the day the summons was served.

The rule is well settled by a long line of authorities, that in an executory contract for the manufacture and sale of goods, an acceptance of the goods after an opportunity to examine them, is a consent and agreement that the quality is satisfactory. The purchaser must return or offer to return the goods at once (Gurney v. The Atlantic and Great Western R. R. Co., 58 N. Y. 358 ; Gaylord M’f’g. Co. v. Allen, 53 Ib. 515 ; Reed v. Randall, 29 Ib. 358; Parks v. Morris Ax and Tool Co., 54 Ib. 586 ; McCormick v. Sarson, 45 Ib. 265).

The fact that he objected to the quality of the goods and refused to pay is not an offer to return or a refusal to accept (Heydecker v. Lombard, 7 Daly, 19).

In this case there was not only no offer to return, but after the objection of the defendant to the quality of the goods, the demand of the plaintiff for the return of the goods was refused,

It cannot be said that this demand of plaintiff rescinded the contract. There had been no offer to return, no claim that the contract should be rescinded. Defendant only refused to pay the purchase price. Plaintiffs then demanded the money or the goods. Defendant had his election to rescind the contract and return the goods, or to hold on to the goods and the contract and claim any damage that he might have sustained for a breach of the warranty. He elected to retain the goods, and the court below was right in holding that the defendant was liable for the purchase price.

The acceptance of the goods did not prevent the defendant, in an action for the contract price, from setting-up as a counter-claim and recovering any damage that he sustained by reason of a breach of a warranty (Day v. Pool, 52 N. Y. 416).

This fact must be alleged and proved as a counterclaim in favor of the defendant and against the plaintiff, and not as a defense to an action for the purchase price. In this case, no such counter-claim was pleaded in the answer. ■ Defendant as a defense alleged that the goods were not as warranted, and an offer to return, but this they failed to prove.

The defendant, as a counter-claim, did allege that plaintiff promised to furnish the dies by January, 1882, and that, by the failure to make such delivery at such time and in time for the spring season, he sustained damage to the amount of $2,000. No damage for breach of this agreement was proved, and the court was, therefore, right in holding that plaintiff was only entitled to recover for such breach nominal damage.

The letter of February 14,1884, was dated on the same day that the summons was served. No proof appears to have been offered that it was ever sent to the plaintiff. Plaintiff was asked, on cross-examination, whether he had received a letter from the defendant. The question was •objected to, and it does not appear that any ruling was made on the objection, or that the question was answered.

This disposes of the questions raised, and as there was ■no error in the ruling of the court below, the judgment should be affirmed, with costs.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


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    BENJAMIN WRIGHT, as Receiver, &c., Respondent, v. MARY A. NOSTRAND, et al., Appellants.

      Decided November 3, 1884

      Creditor's bill to remove obstruction to process— When accounting also decreed—Re-argument—presumption that general term have passed on merits—Irregularities in judgment appealed from—practice in regard to—what is matter of substance.—Order of court of appeals amending remittitur so as to read “ without prejudice to any application the defendant may be adroised to malee for relief to the court below "—construction of.

    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by defendant from order denying motion to modify judgment.
    Motion for re-argument at general term.
    The plaintiff, as receiver of the property, &c. of Elbert Van Nostrand, appointed in proceedings supplementary to execution, brought this action, claiming as relief, that assignments of leasehold property, made respectively by Elbert Van Nostrand to one Oypert, and by Oypert to the defendant Mary A. Nostrand, be adjudged to be fraudulent against the creditors of Elbert Van Nostrand, and that the judgments under which the plaintiff was appointed receiver, be declared liens upon said real estate and chattels real, etc. ; that the sheriff of the city and county of New York be directed to sell the same under executions to be issued upon said judgments and pay over to the plaintiff the proceeds of such sales, to be applied to the payment of such judgments ; and that the defendant Mary A. Nostrand be required by the judgment of this court to account for and pay over the rents and profits received by her for the use and occupation of the premises, and the fair valuation of the use and occupation of said premises. The court at special term determined that the plaintiff was entitled to judgment declaring that the assignments that have been referred to, were fraudulent and void against the judgment-creditors of Elbert Van .Nostrand, that the plaintiffs in such judgments, or their successors, are at liberty to sell said premises, upon said judgment's, which are by the judgments declared to be liens upon the same, under executions to be issued upon said judgments to the sheriff of the city and county of New York; and also to judgment, against the defendant Mary A. Nostrand, for the amount of the rents and profits received by her for the use and occupation of said premises, from the time of the commencement of this action and “the filing of the lis pendens therein, to the time of the accounting hereinafter provided for, or such part thereof as will be sufficient to satisfy the judgments aforesaid.” And that it be referred to a referee named to take an.account of such rents and profits, and report the amount thereof, and on the coming in and confirmation of such report, the plaintiff may enter judgment against the defendant Mary A. Nostrand for the amounts of such rents and profits, applicable to the payment of the said several judgments. The defendants duly excepted to these conclusions of the court. A judgment was entered as directed by the court. The defendants appealed to the general term, where the' judgment was reversed. The case, with the ■ opinion of the court, is reported 47 Super. Ct. 441. The plaintiff appealed to the court of appeals, where the order of the general term was reversed and the judgment of the special term affirmed. After the opinion of the court of appeals was given, the attorney for defendants procured an order from a judge of the court of appeals, that the plaintiff show cause why “ the order and remittitur of the court of appeals should not be modified so as so provide for leave to the defendants to apply to the court below for a modification of its decree so as to efiminate therefrom the provisions requiring the defendants to account for the rents, issues and profits of the property transferred in accordance with the opinion of this court as to the nature of this action, and the rights of the plaintiffs herein, and further, why the defendant should not have leave to apply to the general term of the court below for a re-hearing and a determination of this cause upon the merits thereof and the weight of evidence affecting the same.” Upon the return of this order to show cause, the court of appeals ordered that the remittitur be so amended that it will read: “without prejudice to any application the defendant may be advised to make for relief to the court below.” Thereupon the counsel for defendants moved at special term for an order staying the proceedings of the plaintiff, until defendant could make an application to the next general term of this court, for a re-hearing and determination of this appeal upon the merits thereof; and also that the judgment entered herein at special term be re-settled and modified so as to efiminate therefrom all provisions relating to an account of the rents, issues and profits of the property therein described, and that the judgment be modified in other respects so as to make it conformable to the opinion of the court of appeals herein. The court below granted the motion as to staying proceedings for the purpose of a re-argument, but denied it, as to the judgment being modified. The appeal is now from the order so far as it denies the modification of the judgment, and the defendants also move for a re-argument of their appeal from the judgment.
    The court at General Term, said :—“ The ground that the defendants’ counsel urges as calling for are-argument at general term is, that the merits of the case have not been passed on, by the general term. The opinion of the general term, because it reversed the judgment upon certain questions of law, and did not advert to the merits, it is argued, shows that the general term did not consider the merits. This is not a necessary result. The presumption is that the court considered all the questions in the case, and among them the merits, and thought it proper not to reverse on the merits. But the defendants have lost nothing, for the opinion of the court of appeals considered the merits. It said, ‘ The conclusions reached by the trial-court upon the facts in the case are supported by the evidence therein, and the conclusions of law predicated thereon do not seem to be open to any legal exception.’ The motion for re-argument should be denied.
    1 ‘ It is further argued that the court below should have modified the judgment by striking from it, the provision that the defendant Mary A. Nostrand, the fraudulent assignee, account for the rents from the beginning of the action, and that the plaintiff have judgment against her for the amount in which she should be found accountable. It is argued that this should have been done on the intimations of the court of appeals on the subject. I do not find such an intimation. If it exists it is in the following part of the opinion : ‘ Second. The claim that the judgment originally entered in the action did not provide for a right of dower claimed to exist in favor of the defendant Mary A. Nostrand, in the property, etc., and that it was in other respects erroneous in form, were questions not properly before the general term and cannot be raised upon the appeal here. The remedy of the defendant, if any such irregularities exist, is by motion, and appeal from the order thereon, if the proper relief is not granted (Beardsley Scythe Co. v. Foster, 36 N. Y 561; Binsse v. Wood, 37 Ib. 526 ; Buck v. Remsen, 31 Ib. 383). The alleged dower right of Mary A. Nostrand is not affected by the judgment recorded herein.’ Is the provision that defendant Nostrand account for the rents alluded to in the quotation from the opinion ? Is it an irregularity ? Is it a matter of form % Is it like the cases cited ? Buck v. Remsen (34 N. Y. 383), is a case of an appeal from a judgment in replevin where the plaintiff having taken the goods from defendant at the beginning of the action, the verdict was for the defendant. It is to be assumed that the verdict was regular, for no objection was made to it. It assessed the value of the goods. The clerk, in entering judgment upon the verdict, incorrectly gave judgment for the value of the goods, in addition to awarding their return, instead of giving judgment in an alternative manner. This was said to make a question of form and practice which would become the subject of appeal, if upon motion the court declined to correct the form. The court below had not directed the form. The party below, if he acquiesced, could not afterwards object. Ño action of the court could be reviewed until it had been invoked, by the party assuming to be aggrieved, which could not be short of a motion to correct the judgment. Therefore, an appeal from the judgment did not raise the question upon appeal.
    “ Beardsley Scythe Company v. Foster (36 N. Y. 561), determined that an adjudication, by the general term in its order of affirmance, that the appellant recover the costs awarded in the judgment in the first instance, could not be reviewed in an appeal from the order, as it regarded but a question of practice, to be passed upon in the first instance on a motion to correct the form of the order or to prevent there being execution for the same cause.
    “In Binsse v. Wood (37 N. Y. 526), the general term had granted a new trial, unless the plaintiff consented to reduce the recovery in an amount to be ascertained as directed by the general term. The plaintiff consented to reduce as specified. On appeal in the court of appeals it was objected that the judgment entered upon the order of the general term was for a larger amount than had been directed. The court held this was not the subject of appeal, but should have been corrected by motion made in the court below. Evidently the court below had not acted erroneously, for its interposition would come, only when a motion to correct should be made.
    “I can see no analogy between these cases and the one here. The subject matter of the provision, that it is asked shall be stricken out, was directly before the court in the complaint, was passed upon in the findings, and judgment as to it was directed to be entered. The judgment that was entered, accorded with the findings. If was the subject matter of a cause of action or a part of such a subject matter. It was a matter not of form or regularity but of substance.

      “ These considerations suggest that the court at special term had no power to pass upon the claims of the plaintiff, on this point, except after a trial of the issues in the manner prescribed by law. After they had been determined upon trial before a judge, another judge upon motion, had no power to annul the determination.

      “ It is further argued that the provision in question is not in conformity with the opinion of the court of appeals. It cannot be denied that it is within the decision of that court, if it be not a matter of practice or form or regularity. The position is taken, that when the opinion says, that the plaintiff is simply seeking to remove a cloud upon the debtor’s title to the property so as to subject it to sale or execution, it follows therefrom, that the plaintiff is not entitled to recover a judgment against the defendant that she account for the rents and profits since the beginning of the action. The alleged reason is that the plaintiff must abide by his claim to enforce his execution. The rents and profits, it is said, belong to the owner and his grantees or donees and no one else until title has passed under the sale (Evertson v. Sawyer, 2 Wend. 507 ; citing Bissell v. Payn, 20 John. 3). Many cases of creditor’s bill, incidentally, it is said, support the proposition, that if the claim be to enforce the legal lien of a judgment on land, it is no part of that claim to recover rents and profits before title is changed. But we cannot examine the merits of such a proposition if the court of appeals have passed upon it. As some authorities have been cited, reference may be made to Farnham v. Campbell (10 Paige, 598) which apparently decides that a creditor’s bill may take the rents and profits, during the fifteen months allowed by law to redeem, at least in that case, where the rents were to go to a receiver, who would in due course get the debtor’s legal title. It is an unjustified inquiry to ask, whether the claim for the rents and profits is to be enforced, in a case where the only cause of action is to remove an obstruction to legal process. That was plainly before the court of appeals as a matter of substance, and after its first determination, its attention was called to it by a motion to modify the order, so as to permit an application to the court below to strike the provision in question from the judgment, and it refused to modify its order except by adding ‘ without prejudice to any application, the defendant may be advised to make for relief to the court below.’ This would not countenance the reversal of any part of the order of the court of appeals affirming the whole judgment. The reverse of the fundamental position of defendants’ counsel is true. Instead of perceiving that the judgment does not follow the proposition of the opinion, we should understand that it does follow, even if it is supposed that we did not see the connection between the two in all respects.”

      Edward P. Wilder, for appellant.

      H. D. Betts and Abram Wakeman, for respondent.
   Opinion by Sedgwick, Ch. J.; O’Gorman, J., concurred.

Motion for re-argument denied and order appealed from affirmed with $10 costs.


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    JANE L. MELVILLE v. ANDREW J. MATHEWSON.

      Decided November 5, 1884.

      Motion at general term to open judgment.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    Motion, made, in the first instance, at the general term to open a judgment against defendant, and to have all the issues re-tried by the referee herein.

      Nelson J. Waterbury, for the motion.

      John S. Davenport, against the motion.
   Per Curiam.

It is the plain intention of the Code of Civil Procedure, and of the Rules of Practice, that the general term of this court should exercise only an appellate jurisdiction (Matter of Walker, 2 Duer, 655).

The motion is denied, but without prejudice to the renewal of the motion at the special term.


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    FRANCIS W. WILLIAMS v. ECKSTEIN NORTON.

      Decided December 1, 1884.

      Entire contract—when partial recovery not permitted.—Phrase “ If no such law is passed the contract is to be null," consi/t'uction of.

    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Exception by defendant, to a direction of a verdict for plaintiff, directed to be heard in first instance at general term.
    The assignor of the plaintiff, made a written contract with the defendant, that provided, that upon the assignor doing certain things, he should receive a stipulated compensation. At the trial a verdict was directed for the plaintiff in the amount stipulated in the contract as reduced in a certain proportion, fixed by the fact that the services alleged to have been rendered under the contract were of a value less than were contemplated by the contract. The defendant took an exception to the direction, and the judge ordered it be heard in the first instance at general term. The following is the contract: “ This agreement, made in duplicate, in the city of New York this 23d December, 1882, Witnesseth that, whereas Ex. Norton party hereto is the owner of fifty Tennessee bonds of $1,000 each with unpaid interest from January 1, 1876, inclusive, in coupons thereon. And the said Chas. N. Gibbs agrees to indicate and point out eight of said bonds which represent old debt proper bonds of the state of Tennessee, to be reserved by said Norton ; and the said Norton agrees to exchange, at said Gibbs’ direction, the other 42 bonds—bond for bond—to be held for funding under a proposed and expected late of Tennessee at par for bonds and interest at 6 per cent. And the said Gibbs is further to attend to the funding of the same. And it is agreed that said Gibbs shall have for his part in the transaction all interest due and fundable on the said 42 exchanged bonds, the bonds themselves, the whole fifty and the interest on the eight bonds first named to belong to said Norton. The meaning of this agreement that said Ex. Norton is to receive for his eight Tennessee bonds Now 6,^ Bonds for principal and interest, and for the 42 bonds said Norton is to receive 42 New Tennessee bonds of the same amt. bearing 6# interest, aggregating $42,000, and Gibbs to receive thé interest due and fundable on said 42 old bonds under the law expected to be made by the Tennessee legislature at its coming session. If no such law is passed the contract to be null.”

    The court at General Term said :—“In my opinion the exception should be sustained. The complaint does not claim that anything was due to the assignor under that contract, if it remained in force according to its tenor ; for, after alleging that instead of the expected act being passed, another was passed, which lessened the pecuniary results, to defendant aimed at by the contract in about twenty-four per cent., it proceeds to aver, ‘ 1th that soon after the passage of the act last mentioned, the said defendant and the said Gibbs, were informed of the provisions of said act, and thereupon mutually agreed to and with each other to waive the provision contained in said written contract, that such contract should be null if the expected law were not passed, and further agreed that said contract should stand with the like force and effect as if such contract referred to the act as the same was finally passed.’ The testimony did not support these allegations. There was no proof of the waiver or of the further agreement. If there had been such proof, certain objections would be good under it, as they are under the first contract. The plaintiff must, however, support the verdict, under the written contract.
    “The plaintiff could not recover, under the written contract, the rate of compensation which it provided, because the contract was annulled under the clause ‘ If no such law is passed the contract to be null.’
    “ There could be no recovery for a part of the services while the rest of them remained unperformed. The obligation of Gibbs to perform the services was an entire one that the contract did not contemplate should be divided. The same is to be said of the obligation of the defendant to pay. The funding of the whole fifty were to be one operation under the expected act.
    ‘ ‘ Beyond this, the part of the services, for which compensation was claimed, was not performed, as required by the contract. The bonds received by the defendant, under the act that was passed, were not of the amount named in their contract.
    “It is not necessary to ascertain, that the plaintiff was or was not entitled to recover the value of Gibbs’ services, or what were assumed to be services, done at defendant’s request. The plaintiff gave no proof of this value, but recovered on the basis of the written contract, by taking the amount of compensation specified by it, and scaling ’ it down, as the legislature of Tennessee had scaled down the amount of the original bonds. This was not proof of the value of the services.”

      L. H. Arnold, for plaintiff.

      Stewart & Boardman, for defendant.
   Opinion by Sedgwick, Ch. J.; Van Vorst and Freedman, JJ., concurred.

Exception of defendant sustained, and a new trial ordered, the verdict being set aside with costs, to abide the event.