author: Monell, J.

text:
    ANN STODDARD, Plaintiff and Respondent, v. CHARLES DENISON, Defendant and Appellant.

      [Decided December 4, 1869.]
    A mortgage of chattels is a sale on condition. The legal title is vested in the mortgagee, subject to the mortgagor’s right to perform the condition.
    After default, such legal title bécomes absolute, leaving a mere equity of redemption in the mortgagor.
    Such equity can be disposed or got rid of only by an action in equity to foreclose, or by a sale under the power contained in the mortgage; or, possibly, by lapse of time.
    Where a mortgagee takes possession of the mortgaged property, it will, if of sufficient value, be deemed a satisfaction of the debt until the equity is foreclosed. It will not, however, extinguish the mortgagor’s right to redeem.
    To extinguish the equity of redemption, by a sale under the power contained in the mortgage, it must be a fair and bona fide sale.
    The mortgagee has no right, by any unfairness, to sacrifice the property, and deprive the mortgagor of a surplus over the debt, which, by an openly conducted sale, might arise. Per Monell, J.
    A mortgagor’s only remedy is by action to redeem. He cannot maintain an action at law, under any circumstances. Per Monell, J. Hot even where the mortgaged property has been wrongfully and unfairly disposed of.
    In an action by a mortgagor against a mortgagee, to recover damages for an unfair sale of the property, where it appeared that the property was the furniture of a hotel, distributed among a large number of rooms, and which the mortgagee had sold under the mortgage, chiefly in bulk, for a sum much less than what it would have brought if it had been sold in suitable lots, it was held the action could not be sustained. The action should have been to redeem.
    Relief in equity can be granted ex cequo et bono, only upon payment or tender of the whole debt. Therefore, where, upon an unfair sale, less than the whole debt was realized, a tender of the residue of the debt must be made to lay a foundation for an action to redeem. Per Monell, J.
    In an equitable action to redeem, the court can give complete relief; and where the mortgagee, by disposing of the property, has prevented a redemption, reparation may be made in damages.
    Before Barbour, C.J., Monell, and Freedman, JJ.
    Appeal from a judgment.
    The action was to recover damages for wrongfully selling personal property under a chattel mortgage.
    The plaintiff, to secure the payment of a sum of money on demand, gave to the defendant a mortgage upon certain personal property, mentioned and described in a schedule thereto annexed. It contained an agreement, on the part of the mortgagor, that in case of default in payment, it should be lawful, and the mortgagee was authorized and empowered, to enter upon the premises; to take away, and to sell, and dispose of the property for the best price that he could obtain, and out of the moneys arising therefrom to retain and pay the sum mentioned, and all charges touching the same, rendering the surplus, if any, to the mortgagor’s representatives or assigns. Until default the mortgagor was to remain in possession of the property.
    The mortgage became due, and remaining unpaid, the defendant took possession of the mortgaged property, and also of certain other property not included in the mortgage, but which he claimed under the mortgage, and sold the same at public auction.
    On the trial, before Mr. Justice Freedman and a jury, it was proved that the mortgaged property, together with other property of the plaintiff not included in the mortgage, was taken possession of under the mortgage by one Mealio, under a special power of attorney from the defendant. The property taken consisted of the furniture of a hotel, and was distributed among some seventy rooms. An advertisement of the sale was posted and published in one newspaper once before the sale.
    On the day of sale an auctioneer employed by the defendant’s attorney proceeded to sell. In many respects the evidence of the manner in which the sale was conducted was conflicting.
    On the part of the plaintiff it was shown that, with one or two exceptions, the property was not sold separately, or in parcels, or even in small lots; but the contents, more or less, of each room were sold collectively, or in one lot or parcel.
    The defendant’s witnesses testified that the sale of the entire contents of rooms was confined to the bedrooms. There was also a difference in the evidence in respect to the number of persons present at the sale. The auctioneer and the attorney of the defendant testified that from thirty to forty persons attended the sale; that they endeavored to sell the property in lots or parcels, or separately, and could not get any bids, and were obliged to sell the entire contents of a room. But, on the part of the plaintiff, it was shown that she requested the attorney and auctioneer to sell separately, or in small lots, and they refused. The contents of each room were put up and sold in one lot.
    There was some evidence that the property covered by the mortgage, and also of the property not included therein, was together worth about $3,500; the value of the latter property was estimated at about $500.
    The sale realized only about $670. The evidence in respect to most of the matters in dispute was conflicting.
    A motion was made to dismiss the complaint on the following grounds:

      First. Because on default in payment the title to the property vested in the mortgagee, and he could dispose of it as his own in any manner he saw fit.

      Second. That the action should have been to redeem, after first offering to pay the debt.

      Third. That the defendant was not liable for the acts of the attorney or auctioneer.
    The motion was denied and the defendant excepted.
    There were some requests to charge the jury embracing, substantially, the same proposition as was contained in the third ground for the nonsuit. And also the further request to charge that the defendant is not liable for property not included in the mortgage, unless it was taken and sold with his knowledge or under luis direction.
    The requests were refused and defendant excepted.
    The court charged the jury that the mortgage transferred the legal title to the property to the mortgagee, subject only to be defeated by performance of the condition. That upon failure to perform, such title became absolute, notwithstanding the provision for a sale. That if the defendant had only taken possession of the property, the plaintiff could still redeem. That the defendant was not bound to sell; he might have kept the property, subject to the mortgagor’s right of redemption, but if he sold he was bound to obtain the best possible price; and if he did not choose to sell the entire property together, he was bound to offer it in such lots and parcels as were calculated to bring the highest price.
    It was left to the jury to determine whether, under the evidence, the property was sold in a manner calculated to bring the highest or best price.
    They were separately instructed in regard to the property not included in the mortgage, that if they believed there was any such property, which could have been easily separated from the mortgaged property, the defendant had no right to sell such property, and the plaintiff was entitled to recover its value.
    Exceptions were taken to several parts of the charge.
    The jury gave the plaintiff a verdict for $1,492.
    The defendant appealed.

      Mr. Erastus Cooke for appellant.
    By default in the payment of the mortgage, the title to the property vested absolutely in the defendant (Champlin v. Johnson, 39 Barb., 608, and cases there cited; Talman v. Smith, ib., 390).
    The judge’s charge so laid down the rule in terms, but followed it up with a qualification which deprived the principle of its very essence. It was that this absolute title consisted only of the right to reduce the property to possession and to hold it, subject to a right of redemption by the mortgagor. This qualification reverses the rule governing all the adjudged cases. Until forfeiture, the title is in the mortgagee, subject to the condition of payment when due. After forfeiture, the title is absolutely in the mortgagee. The right to dispose of property is an important element of ownership. To say that a man is absolute owner of property but has no right to sell, give, or barter it away when he pleases, is a contradiction of terms.
    Welles J., in Talman v. Smith (39 Barb., 393), said, in reference to the case then under consideration: “ When Sawyer (the mortgagor) was in default in not paying the note, to secure which the mortgage was given at its maturity, the Spencers (mortgagees) had a right to take the property into their possession, and dispose of it at their pleasure. The right of the mortgagees to the property as the legal owners, etc., was as perfect upon the failure of the mortgagor to perform the condition of the mortgage, as it would have been in case they had sold it under the mortgage and become the purchasers at such sale.”
    This language certainly does not justify the ruling in the case at bar, that the defendant could go only so far as to reduce the mortgaged property into his possession, until a regular sale under the power contained in the mortgage.
    If the case last cited means any thing, it is that the mortgagee has the same rights in respect to the property before a sale under the power, as after such sale, and a subsequent purchase by himself.
    Dane v. Mallory (16 Barb., 46) holds distinctly that the mortgagee, after forfeiture, may sell the mortgaged property at private sale, “just as he might sell any other property to which he had an absolute and unqualified title ” (per Gridley, J., 53).
    The judge before whom this case was tried fell into the mistake of treating the mortgagee, after forfeiture, as pledgee of the goods rather than as absolute owner (40 Barb., 189, 190).
    The mortgagor, after default, has no legal right to the property. The equity of redemption is not an aggressive right until established by a court of equity on a bill filed to redeem (Dane v. Mallory, 16 Barb., 50).
    In the complaint, the facts upon which he claims that his right of redemption should be established, must be set forth, and the money due must be ready and offered to be paid, and then the court may fix the terms on which the plaintiff shkll redeem, in view of all the facts and circumstances of the case; but until the right of redemption is thus established, the mortgagor in default has no right upon which he can predicate an action at law in respect to the property (Chamberlain v. Martin, 43 Barb., 607, 608).

      Even tender of the money due on the mortgage, after default, gives the mortgagor no right to maintain an action for the property (Brown v. Bennet, 8 John., 96; Olcott v. Tioga R.R. Co., 40 Barb., 180).
    The whole scope of the charge was wrong. The case was submitted on an erroneous principle, and, therefore, a new trial should be granted.

      Mr. Nathan Comstock for respondent.
   By the Court:

Monell, J.

If this action can be sustained at all, I think there was sufficient evidence to go to the jury,, upon the two principal questions of fact, namely, as to whether the sale was conducted in a manner calculated to produce the best price, and as to the amount of damages.

In respect to the property claimed not to have been covered by the mortgage, there is no doubt of the plaintiff’s right to recover. There was evidence to support the claim, and it was properly submitted to the jury.

Hor have I any doubt that the defendant, if otherwise liable, must be held responsible for the acts of his agent, whom he empowered to take and sell the property; and such responsibility extends to all the property the agent took under the mortgage, and to the manner in which he disposed of it.

The evidence bearing upon the question, as to whether the sale was made in a manner calculated to produce the best price, and also upon the question of damages, was conflicting. But, as I think it was sufficient to go to the jury, we cannot disturb their verdict.

The mortgaged property consisted of household furniture, the contents and fixtures of a bar, and other property used in a hotel. It was distributed among some seventy rooms in a five-story building; most of them being used as bedrooms, and containing the usual bedroom furniture. There were parlors containing the usual parlor furniture, and bar-rooms, and dining-rooms, each with the furniture usual to such rooms.

The evidence of the plaintiff and her witnesses showed that she requested to have the property sold separately, which was refused, and it was sold collectively, the entire contents of room by room throughout the house. On the part of the defendant much of this was denied, leaving it in doubt whether the property could have been sold separately at all.

The plaintiff testified that she had purchased the property at the time it was put into the hotel, and stated the aggregate price she had paid for it; and there was other evidence of value. But, as my conclusion is arrived at upon the law of the case, no further reference to the facts is necessary.

We are now brought to the question whether this action can be maintained at all, and the question is presented in two aspects :

First. Does the title of a mortgagee, on default, become so far absolute as to deprive the mortgagor of all right or interest in the mortgaged property % and, second, assuming that it does not, and that there is a remaining right or interest in the mortgagor, can such right be enforced in an action at law?

I think the first branch of the inquiry can be correctly answered in the negative.

A mortgage of personal chattels is a sale on condition. The legal title to the chattel is vested in the mortgagee, subject to the right of the mortgagor to perform the condition. Until default there is no doubt of the mortgagor’s right to perform, and upon performance to reinvest himself with the legal title.

In Corlelyon v. Lansing (1 Caine’s Cases in Error, 202), it is said the title passes, with a condition of a defeasa/nce / in Charter v. Stevens (3 Denio, 35), it is said the mortgage transfers a defeasible title to the property mortgaged; and in Mattison v. Backus (1 N. Y. R., 297), the interest of the mortgagor is called “ a right of redemption only.” Until default, therefore, the legal title of the mortgagee is subject to defeasance, upon performance of the condition by the mortgagor. Upon breach of performance such title becomes absolute at la/w. If any right thereafter remains in the mortgagor, it is a mere equity of redemption. That such right to redeem remains to the mortgagor seems to be well settled (see Patchin v. Pierce, 12 Wend., 62, and cases there cited).

Nelson, J., says, “ Notwithstanding the forfeiture and perfection of title in the mortgagee in such a case, I have always supposed, and have no doubt, that in equity, upon well-settled principles, the mortgagor has the right to redeem.” And Story says, although the title becomes absolute at law, equity will interfere to compel a redemption (Story on Bailments, § 287; Fuller v. Acker, 1 Hill, 475 ; 1 Parsons on Contracts, 453; Mattison v. Backus, 1 N. Y. R., 297). I shall have occasion to refer to several other cases on this subject, when I endeavor to ascertain what are the remedies of the mortgagor.

It is evident, then, that the absolute title, which a mortgagee acquires after forfeiture, which term is so frequently used in the cases, is an absolute legal title; and that, notwithstanding default, there is a right, or, as it is called, an equity of redemption remaining in the mortgagor.

The respective rights and interests of the parties, therefore, are—the legal title is vested in the mortgagee, subject to an absolute right of redemption upon performance of the condition; upon breach of the condition the legal title becomes absolute in the mortgagee, leaving a mere equity in the mortgagor.

The legal title becoming absolute or perfect in the mortgagee, and he having taken possession of the mortgaged property, let us see how the equity of the mortgagor may be disposed or got rid of.

In Charter v. Stevens (ubi supra), two remedies are suggested. The court say the mortgagor was not divested of all interest in the property, for he still had (after default) an equity of redemption which the Court of Chancery would protect and enforce. On the other hand the mortgagee might go into chancery to compel a speedy redemption, or to foreclose that right; and the same object might be attained by a fair public sale of the property, on due notice to the mortgagor.” That case also holds that no more property can be sold than is sufficient to satisfy the mortgage debt, etc. These' remedies are also recognized in Patchin v. Pierce (supra). Nelson, J., after asserting the continuance of this equity in the mortgagor after default, says: “ It seems, however, that the right to redeem may be foreclosed with- • out judicial proceedings, by a sale of the property as in the case of a pledge upon reasonable notice to the mortgagor.” Tender of the money after forfeiture (he says) does not operate to reinveskthe title in the mortgagor, so as to enable him to recover at 1cm, and this is sustained by the vice-chancellor, and approved by the chancellor, in Rogers v. Traders’ Insurance Company (6 Paige, 587, 594).

These remedies—actual foreclosure by judicial proceedings, or sale under the power contained in the mortgage—seem to be the only modes by which the equity of the mortgagor can be extinguished. These are distinctly recognized in Talman v Smith (39 Barb., 390), where the court say this right of redemption continued in the mortgagor until the property was sold. There is no doubt, I think, that when a mortgagee takes possession of the mortgaged property, it will, until the equity is foreclosed, be deemed a satisfaction of the debt if it be of 'sufficient value.

In Case v. Boughton (11 Wend., 106), the defendant gave the plaintiff a chattel mortgage to secure payment of the note in suit, and when the note became due the plaintiff took possession of the mortgaged property, but did not sell, and the court held it was payment. The court say, that the property being of sufficient value to satisfy the debt, no further act besides taking possession was necessary to constitute payment. And they further say, that if the property had been sold upon the mortgage when it was forfeited, and upon a fair sale brought less than the amount of the debt, the mortgagee would have been entitled to demand the. balance of his debt. In Wheeler v. Miller (2 Denio, 170), this effect of taking possession is substantially affirmed. The action was trover by the mortgagor after tender of the debt but after default. It was held the action could not be maintained. At law he had no title whatever, and could only redeem in equity. The court say the mortgage authorized but did not require a sale to satisfy the debt; and such power of sale does not extend the time of payment, or under any circumstances reinvest the mortgagor with title to the property.

Although the mortgagee after forfeiture take possession of the property (and which possession while it continues, if the property is of sufficient value, will be deemed payment of the debt), it will not extinguish the equity of ■ the mortgagor, unless, perhaps, upon his failure for a sufficient length of time to assert his right. Story says (2 Story Eq., § 1031), the equity of redemption may be asserted by the mortgagor, if he brings his bill to redeem within a reasonable time” (Kemp v. Westbrook, 1 Vesey, 278; Harrison v. Hart, Comyns R., 392, 411).

Such equity can be extinguished, therefore, only in some of the modes which have been suggested, namely, by a judicial decree, a sale under the power contained in the mortgage, or possibly by lapse of time. If the mortgagee resorts to none of these remedies, it is clear that the mortgagor may, certainly within a reasonable time after forfeiture, notwithstanding his default, assert his right in equity to redeem.

Where a mortgagee, after default, brought trover against a person claiming under the mortgagor for a conversion of the chattel, the court held (Hinman v. Judson, 13 Barb., 629) that there was a clear right of redemption in equity in the mortgagor, and that such right had not been extinguished at the time the suit was commenced. The mortgagee had never taken possession or sold the property. In that case the defendant, in effect, was allowed to redeem, the recovery being limited to the amount due the plaintiff, instead of being for the value of the property.

To extinguish the equity of the mortgagor after forfeiture, by a sale under the power contained in the mortgage, it must be a fair and bona fide sale. Such is the language of many of the cases. In Charter «. Stevens (ubi stipra), it is said the equity may be extinguished “ by a fair public sale; ” and in Chamberlain v. Martin (43 Barb., 610) the end may be attained, the court say, “ assuming such sale to be fair and bona fide?

It needs, however, no citation of cases to establish a principle so obviously just, that an unfair or fraudulent sale of mortgaged property by the mortgagee should and will not defeat or extinguish the equitable rights of the mortgagor. The mortgagee has no right, by any unfairness, to sacrifice the property and deprive the mortgagor of a surplus over the debt, which, by an openly conducted sale, might arise. His absolute legal title does not enable him to deal with the property quite as though it was his own, and the remark, apparently to the contrary, of Justice Gridley, in Dane v. Mallory (16 Barb., 53, 54) is qualified. He says, especially as against the plaintiffs, who cure mere strangers.” And I cannot think Justice Welles, when he said, in Talman v. Smith (ubi supra), the mortgagees “ had a right to take the property into their possession, and chispóse of it at thevr pleasure” intended to assert that they could make an unjust and unfair sale to the prejudice and injury of the mortgagor.

Questions involving the rights and interests of the parties to a chattel mortgage have usually arisen in actions at law. In those actions it has uniformly been held that the legal title of the mortgagee was so absolute and perfect that it could not be divested or disturbed in such an action. I have not been able to find any case of a proceeding in equity to assert the right of redemption, either before or after forfeiture. But it is everywhere assumed and conceded that such a proceeding may be instituted and will be entertained.

It follows from all this that the mortgagor’s only remedy is by seeking relief in equity, whether he seeks to redeem before or after forfeiture. The dicta in all the cases to which I have referred are to that effect, and although, perhaps, mere dicta,, are entitled to all the weight of authority.

Hor do I see how an action at law can be maintained under a/ny circumstances. Hot even where the mortgaged property has been wrongfully and unfairly disposed of. So far as the legal rights or obligations are concerned, a mortgagee may treat the property as his own, and if he squanders, destroys it, or gives it away, he incurs no liability at law. The party aggrieved must go into a court of equity, which alone can afford him redress.

It is evident, therefore, that the plaintiff in this action has mistaken her remedy, and instead of an action to recover damages for a wrongful sale of the property, she should have invoked the aid of the equitable powers of the court, in the nature of an action to redeem.

I have, not without much hesitation and doubt, satisfied myself that the defendant having, by a sale of the property, put it beyond the power of the court to allow a redemption, so as to reinvest the title in the mortgagor, the plaintiff might not be excused from going into equity, and be allowed to be compensated in this form of action, inasmuch as no other relief can,

. under the facts of the case, be awarded in equity. But upon consideration I find what appears to me an insuperable difficulty. Relief in equity can be granted, ex cequo et bono, oidy upon payment or tender of payment, of the whole mortgage debt. That must be averred and proved; and it lays at the foundation of the only remedy of the plaintiff in this case. Had the sale of. the mortgaged property realized sufficient to have satisfied the debt, together with the costs and expenses of sale, then, perhaps, a tender would not be necessary: But it was not so in this case. There remains, after applying the proceeds of the sale, a considerable amount of the mortgage debt still unpaid; and before the defendant can be prosecuted in any form of action, whether for unfairly disposing of the property or otherwise, he must be paid or have tendered to him the balance due.

Were it not for such fact we might sustain this judgment by allowing an amendment, or by conforming the pleadings to the facts. But as there has not been any tender, and a part of the debt is yet unpaid, this action, so far as regards any of the property covered by the mortgage, must entirely fail.

The right to recover the value of the property claimed not to have been included in the mortgage depends upon wholly different principles, which need not be alluded to here.

I have no doubt that in an equitable action to redeem, after a tender of the sum remaining due, the court can give complete relief. Having acquired jurisdiction of the action for the purpose of redemption, if it shall appear that the defendant has wrongfully placed it beyond the power of the court to decree a redemption, it can in the same action make complete reparation to the plaintiff in damages. Such damages, of course, would be assessed under issues properly framed and sent to a jury to be tried (Woodcock v. Bennet, 1 Cow. R., 711; 2 Story Eq., §§ 794 to 799).

All right to redeem was taken away, if the sale by the defendant was a fair and justifiable sale. If it was not a fair sale, then the plaintiff has not lost the right of redemption, and the question of the fairness of the sale must be litigated in the action to redeem.

If the views I have expressed are correct, the motion for a non-suit, on the ground that the action should have been to redeem, should have been granted, so far, at least, as the property included in the mortgage was in controversy.

I think, therefore, there should be a new trial. Upon which new trial the case, as the pleadings now stand, will be confined to the property claimed not to be covered by the mortgage.

Judgment reversed, and a new trial ordered.


source: Caselaw Access Project

license: Public Domain

text:
    SAMUEL B. NOWLAN, Plaintiff and Respondent, v. JOHN B. TREVOR and Another, Defendants and Appellants.

      [Decided December 4, 1869.]
    A tenancy from year to year can be terminated only by giving six months’ notice; a tenancy at; will or by sufferance, by thirty days’ written notice. A verbal notice or request to leave is not sufficient.
    Where a tenant is rightfully in possession, it is a trespass to remove Trim therefrom otherwise than by process of law.
    Whether a landlord may enter, upon a tenant’s holding over, and remove him and his goods, with such gentle force as may be requisite—Quere, per Monell, J.
    Where a landlord enters upon demised premises, and removes therefrom a tenant whose term is unexpired, he is liable for all damages which may result from such removal.
    Than action by a tenant, occupying part of a building, against his landlord for removing his property, consisting of maps, plans, drawings, books, etc., easily injured or destroyed by water, field, that the latter was liable for injury occasioned by its being exposed to rain, while in transit to its destination.
    The landlord being a trespasser ab initio, he is responsible for all the consequences which resulted; and it is immaterial whether they resulted from his direct and immediate act, or remotely by the act of God. Per Monell, J.
    Before Barbour, C.J., Monell and Freedman, JJ.
    The action was to recover damages for "being forcibly dispossessed of a room, in a building owned by the defendants.
    The action was tried by a referee, who found as facts that the plaintiff rented from the defendants, some time during the year 1862, a room in the building of the defendants, and occupied the same from such renting to September 4., 1868.
    That on the 4th of September, 1868, the plaintiff owned and had in his possession in said room a large amount of personal property, consisting of maps, plans, drawings, models, books, and professional instruments.
    That on that day, the defendants, without the plaintiff’s consent, and without proper or sufficient notice, entered said room and ejected the plaintiff therefrom, and removed all his property. That in consequence of such eviction and removal, the said property of the plaintiff was injured or destroyed to the amount of two thousand dollars, for which sum he directed judgment against the defendants.
    From which judgment the defendants appealed.

      Mr. George R. Thompson for appellants.
    The judgment is clearly against the evidence.
    Although the finding of facts of a referee is, to some degree, conclusive, still it is well settled that the report will be set aside when the findings are clearly against the weight of evidence (Green v. Brown, 3 Barb., 120; McCready v. Woodhull, 34 Barb., 180);
    Or where there is a great preponderance of eyidence against the finding. The decision of a referee on evidence is never absolutely conclusive. Where it is strongly against evidence, the courts will vnfer partiality, prejudice, etc. (Van Steenburg v. Hoffman, 15 Barb., 31; Brooks v. Christopher, 5 Duer, 219; see, also, 3 E. D. Smith, 102; 2 Hilt., 122, 146, and 22 Barb., 506).
    Such is the case here. The plaintiff says he was put out forcibly and against his wishes.
    His evidence was entirely unsupported. On the contrary, the defendants showed by an overwhelming mass of evidence, that the plaintiff left the building of his own aooord—consenting to go, at the defendants’ request, in the most unequivocal manner.
    And yet, the referee found that he was ejected without his consent, and based his judgment upon that fact.
    There was nothing to impeach the evidence for defendants, and there is much in the case going to show the improbability of the plaintiff’s story.
    The referee found that the plaintiff’s property was damaged by this act to the extent of $2,000, and gives judgment accordingly. This was clearly wrong.
    There was no direct evidence offered as to the value of plaintiff’s property, but \h& plaintiff produces evidence that the whole value of all the property was $2,000.
    There was no doubt at all but that some of it was saved. The referee has found that the property was damaged to an extent equal to its full value] which is without a particle of evidence to support it.
    Now, the law is, that where a finding like this is clearly against a preponderating weight of evidence, or where the damages are excessive, the judgment will be set aside and a new trial granted, and this court has frequently done so, in cases much less clear than this one (Kennedy v. N. Y. & H. R.R. Co., 3 Duer, 659; Hartman v. Proudfit, 6 Bosw., 191; Colgrove v. Talmadge, 6 Bosw., 289; Allen v. Devlin, 6 Bosw., 1).

      Mr. John Townshend for respondent.
    License is a defense which must be specially pleaded. Not having been pleaded, the defendants were not entitled to insist upon it (Haight v. Badgley, 15 Barb., 499; Beaty v. Swarthout, 32 Barb., 293).
    The finding of fact, as to the amount of damages, was supported by uncontradicted evidence.
    The finding that the removal was without plaintiff’s consent and without sufficient notice was justified by the testimony. But certainly the testimony on the subject was conflicting, and the decision of the referee will not be interfered with. The weight of evidence does not clearly show his finding to be erroneous, and therefore the court will not review it, even if the court differs in its views from the referee (Thompson v. Wood, 1 Hilton, 93; Dows v. Montgomery, 5 Rob., 445).
    There is this objection, which applies as well to the exceptions to the findings as to all the other exceptions in the case, they do not state any ground of objection, and therefore are not available. “ They amount to nothing only to lumber up the case ” (Shaw v. Smith, 5 Abb., N. S., 129; Wilson v. N. Y. Cen. R.R., 2 Trans. App., 298; Graham v. Chrystal, 2 Keyes, 21).
   By the Court:

Monell, J.

The evidence in this case abundantly established that the plaintiff was lawfully in possession of the premises in question. The original hiring was not disputed. Mr. Thompson testified that the defendants made an agreement with the plaintiff, that he might stop in the room on payment of one hundred dollars a year, subject to their revocation of the agreement at any time they might desire, and Mr. Colgate, one of the defendants, testified substantially to the same agreement. lie said “ there never was any agreement as to the terms of the lease or payment of rent. Mr. Mowlan was there merely on sufferance.” Under such agreement the plaintiff remained in possession for three or four years. There cannot be a doubt that the plaintiff, entering into and continuing in possession under such agreement, became and was a tenant for one whole year, or a tenant from year to year, or at will. If the plaintiff was a tenant for a year, under an agreement which did not particularly specify the duration of the occupancy, he could hot be disturbed in his possession until the first of May next ensuing after entering upon his possession (1 R. S. 744, § 1). Under that statute no notice to quit is required. The tenancy absolutely terminates, and there must be a new agreement, express or implied, to continue the tenancy. Bemaining in possession for a considerable period after the first of May, with the consent of the landlord, would be sufficient to imply a new agreement for another year. If, however, the plaintiff was a tenant from year to year, then, irrespective of the statute, he was entitled to notice to quit, terminating with the year (Wordfall L. & T., 218). Or if he was a tenant at will, he was entitled to thirty days’ notice in writing (1 R. S., 745, § 7). It is immaterial, however, what the nature of the tenancy was, as there was no evidence showing, or tending to show, it had been legally terminated at the time the plaintiff was dispossessed.

There was some evidence of a verbal notice having been given, but which was more in the nature of a request to leave There was no proof of any written notice, or of any notice whatever, except that, as testified to by one of the witnesses, the defendants gave him verbal notice to leave six weeks before he was dispossessed. Under the relation which existed between these parties, and their respective rights, the entry of the defendants upon the possession and premises of the plaintiff was a trespass. It may be that a landlord may re-enter, upon a tenant’s holding over, and remove him and his goods with such gentle force as may be requisite for the purpose. For entering by force and a strong hand an indictment would lie, but a plea of liberum tenementvm would be a justification in an action for the trespass. Even that, however, has been held otherwise in one case (Flaherty v. Andrews, 2 E. D. Smith, 529). It is enough, however, to say that the plaintiff was not holding over, but was in lawful possession when removed by the defendants, and, therefore, any of the rights which landlords may have in certain cases did not exist in this.

It is claimed that the plaintiff consented to leave the premises, and therefore was not ejected. The proof was somewhat conflicting on that subject; but there was sufficient evidence to sustain the finding of the referee that the plaintiff did not consent to the removal. It is quite evident that whatever was done by the plaintiff in removing, or assisting in the removal of the property, was after he was fully satisfied the removal would be made by the defendants; and his consent, if any, was given after he had been told peremptorily that he must leave or he and his effects would be put out of the building.

There was a motion to dismiss the complaint, on the ground that no cause of action had been shown and no damages proved.

The first objection has been disposed of.

The proof of injury to the plaintiff’s property varied in amount, from two thousand dollars, the lowest sum testified to, and five thousand dollars, the highest sum. The referee took the lowest as the measure of damages.

The evidence in support of the damages was that the property consisted of articles easily injured or destroyed by water. That they were put'into open carts, and while in transit from the defendant’s building to their destination were exposed to rain, and thereby damaged.

The proof was conflicting as to the precise state of the weather. Some of the witnesses said it was a rainy day, others that there were only occasional showers; but it was not disputed that the goods were rained upon and saturated with water while being carried from the defendants’ building.

The rule adopted in this case was to give compensation to the' plaintiff for the actual injury sustained. It was not regarded by the referee as one authorizing vindictive or exemplary damages. I think he adopted the correct rule.

Tor a trespass of this nature the plaintiff was entitled to recover' for all injury to the property which was the result of being removed from the defendants’ building. If, without any fault of the plaintiff, the property was exposed to the elements in the-course of removal and thereby injured, the extent of such injury should form the rule and measure of damage.

Even if there had been uncontradicted evidence that the injury was produced by a sudden or unlooked for shower of rain, it would not prevent the application of the rule to this case. The defendants having been trespassers ab initio, they were responsible for all the consequences which resulted, and it is not material whether they resulted from the direct and immediate act of the defendants, or remotely to them by the act of God. The property was compulsorily removed by the wrongful act of the defendants, they declaring their design to put it out of the building if it was not taken by the plaintiff. If under such circumstances the plaintiff used all reasonable precautions for the preservation of the property, and was in no wise in fault himself, he had a right to look to the defendants to compensate him for all the injury which by any means resulted from such forcible entry and compulsory removal.

There were some objections to the admission of evidence, but they are not of sufficient consequence to require any thing more than to say that none of them were well taken.

I am of the opinion that the judgment should be affirmed. The appeal from the order made at Special Term denying a motion for a new trial was a nullity, as no such motion can be made in a cause tried by a referee.

That appeal should be dismissed.


text:
    WILLIAM A. COIT, Plaintiff and Respondent, v. JULIUS E. BRAUNSDORF et al., Defendants and Appellants.

      [Decided December 4, 1869.]

      A parol promise by a lessee to pay an additional rent for a fourth or additional story to be erected by the lessor upon the demised premises is wholly independent of the lease, and forms no part .of it.
    Such promise does not pass by an assignment of the lease; nor do the assignees, by acceptance of the assignment, become liable upon the promise.
    The agreement to erect the additional story, is not a demise of such story. Upon its erection it became parcel of the original demise, was covered by the original lease, and passed to the assignees. But the additional rent can be recovered only upon the new promise. It cannot be recovered upon any of the covenants in the lease.
    Before Barbour, C. J., and Monell and Freedman, JJ.
    Appeal from a judgment.
    The defendants were sued as copartners, to recover for the use and occupation of the fourth story of the buildings Bos. 87 and 89 Elizabeth street, in this city.
    The complaint alleged that the plaintiff was the owner of Bos. 85, 87, and 89 of said street. That during the year ending May 1, 1867, the defendants were in the possession, use, and occupation of the fourth story of said Bos. 87 and 89, as tenants of the plaintiff. That in April, 1867, the plaintiff gave the defendants written notice that if they occupied such fourth story after the first of May ensuing, the rent would be four hundred dollars, payable quarterly, in advance. That the defendants had used and occupied the said fourth story, from and after said first of May, 1867. That the reasonable rent and value of said fourth story, and the use and occupancy' thereof, was the sum of four hundred dollars per year, for which sum, and interest, the plaintiff demanded judgment.
    The defendants denied that they were in the possession, use, and occupation of the said fourth story as tenants of the plaintiff.
      And they alleged that, during the time stated in the complaint, they occupied the said premises as the tenants of Julius E. Braunsdorf a/nd Henry Weil, who were then the assignees of a lease covering the same premises, made in Hovernber, 1863, hy the plaintiff, to Louis Planer and Joseph Keyser, and hy them assigned to Braunsdorf and Weil, who had paid all the rent due under the lease.
    The action was tried before Hr. Justice Jones, and a jury.
    The defendants gave in evidence a lease, under seal, dated November 14,1863, from the plaintiff to Planer and Keyser, of the three lots, Nos. 85, 87, and 89 Elizabeth street, for the term of ten years from the first day of Hay, 1864, at a yearly rent of two thousand five hundred dollars. The lease contained an agreement that the lessor should erect a three-story building upon the front parts of lots No. 87 and 89, together with an extension of one story in the rear, and the lessees should pay one thousand dollars toward the expense thereof.
    The defendants also proved an assignment of the aforesaid lease, dated January 6,1866, from Planer and Keyser, the lessees, to Henry Weil and Julius E. Braunsdorf, and of the whole unexpired term. It was further proved that Weil and Braunsdorf went into possession under the assignment, and continued in possession until, and were in possession at the time of, the trial, and had paid all rent due under the lease. Shortly after the assignment of the lease, a partnership was formed, consisting of Louis Planer (one of the original lessees), Julius E. Braunsdorf, and Henry Weil (the assignees of the lease), under the firm name of Planer, Braunsdorf & Co., to which firm Weil and Braunsdorf rented the premises from year to year, at the same rent mentioned in the lease, and which they had paid.
    The plaintiff proved, that while the building was being erected, there was a pa/rol agreement made between himself and Planer and Keyser, the lessees, that an additional or fourth story should be put upon the building, for which the said lessees should pay an additional rent of one hundred and fifty dollars per annum, during the whole term mentioned in the lease. Weil and Braunsdorf each testified that at the time of the assignment of the lease to them, they had no knowledge whatever or notice of the goar.ol agreement respecting the fov/rth story,1 although there was some evidence that they knew that the building had one more story than was specified in the lease. There was also some evidence that Braunsdorf, after the assignment had expressed a willingness to pay the additional rent, if the plaintiff would consent to a further addition to the building. The evidence left it somewhat in doubt whether the partnership of the defendants was formed at the time, or after the assignment of the lease. But it was understood that the firm was to occupy the premises.
    A notice from the plaintiff to the defendants, to the effect that if they occupied the fourth story after the first of May, 1867, the rent would be four hundred dollars a year, was proved to have been given prior to that date.
    The justice directed a verdict for the plaintiff, to which the defendants excepted.

      Mr. A. C. Morris for appellants.
    When the defendants showed by uncontradicted testimony that they occupied the premises, not as the tenants of the plaintiff, but as tenants of Weil and Braunsdorf, there was an entire failure of the plaintiff’s case. Ho possible amendment could have saved it, for the simple reason that the defendants, not being assignees of the lease, could not be charged with any agreement relating to it.
    If this action in its present shape had been against Weil and Braunsdorf alone, as assignees of the lease, the complaint could not have been amended so as to make the action an action to reform the lease, for the reason that such amendment changes the whole character of the action.

      “ When, however, the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof” (section 171 of Code, 18 How. Pr., 508; Robbins v. Richardson, 2 Bosw., 256; 39 Barbour, 104; 42 Barbour, 177).
    Braunsdorf and Weil purchased the lease without any knowledge of this contract for the additional rent claimed by the plaintiff. The effect of the lease by the plaintiff to Planer & Keyser was to make the latter the owners of the whole premises for a term of ten years, subject to the rent reserved in the lease. This term Weil and Braunsdorf bought without any knowledge of any agreement conflicting with the written lease.
    The testimony of Ooit that Braunsdorf, after the purchase of the lease, told him that he was willing to pay the additional rent, is testimony of a nudumjqaotum. But upon his cross-examination the witness stated that Braunsdorf’s promise was conditional upon the witness permitting him to add to one of the buildings, which the witness declined to do.

      Mr. Alfred Roe for respondent.
    The buildings only upon the premises, at the time of the execution of the lease, passed by it, together with the benefit of the covenant on the part of the lessor to erect a three-story building on Eos. 87 and 89 Elizabeth street, with the right of occupation when completed. The operation of the word building is restricted to a particular kind of building, and, in the absence of words to extend their meaning, none other passes, and only the portion of the building necessary to the complete enjoyment of the demise. The rule of usque ad ecelum, has no application to this case (Taylor’s L. & T., § 161).
    This case is stronger than if the buildings were erected at the time of the demise. It might then be said that a four-story building would pass, but it would be only on the ground of misdescription, which should never be allowed to defeat a conveyance (Taylor’s L. & T., § 164).
    The title, therefore, of the lessees under the lease extended only to the third story, and their assignees acquired no better title—claiming under the lease, they stand in the same position as the lessees. And it has been decided in this court that the original lessees were liable for use and occupation of said fourth story while occupied by them (Coit v. Planer, Braunsdorf & Co., 7 Robt., 413; S. C., 4 Abb. Pr. Rep., N. S., 140).
    The defendants were chargeable with notice of the agreement to pay rent for the additional story. The lease on its face calling for a three-story building, it was the duty of any one purchasing the lease to make inquiry whether any additional rent was to be paid for the fourth story. The use and occupation of the fourth story were admitted by defendants, and also the value thereof. They have deprived plaintiff of its use, and have had the benefit and advantage of it. Upon these facts, the relation of landlord and tenant arises, and an agreement and promise to pay a reasonable compensation should be inferred (Coit v. Planer, supra; Despard v. Wallbridge, 15 N. Y., 374).
   By the Court:

Monell, J.

In the case between these parties, reported in 7 Robt., 413; S. C., 4 Abb., N. S., 140, no evidence had been given at the trial. The plaintiff obtained judgment on the pleadings, which the court decided contained sufficient undenied allegations to entitle the plaintiff to recover for use and occupation. The complaint in that case, after stating that Planer & Iieyser were tenants, and in possession of the two buildings, alleged that it was agreed that if the plaintiff would put an additional story thereon they would pay an additional rent therefor of one hundred and fifty dollars per annum. That such additional story was put on, and thereafter Planer & Ileyser assigned to the defendants all their right, title, and interest in the premises, including such additional story, which premises and additional story the defendants have since used and occupied, after having received a notice similar to the one proved in this case. The only denial in the answer was of the alleged assignment from Planer & Keyser to the defendants.

Upon the pleadings, the justice at the trial gave judgment for the plaintiff, and the court, on appeal, held that the facts alleged were sufficient to create the relation of landlord and tenant by implication, and to lay the foundation for a recovery for use and occupation. The denial by the defendants of the assignment was regarded as neutralized and overcome by their admission of possession and occupancy of the premises, from which an assignment would be presumed.

Upon the trial now under review, the facts which are claimed to constitute a defense to the action were proved. The answer denied the occupancy as tenants of the plaintiff, and averred occupancy as tenants of Weil & Braunsdorf, who were alleged to be assignees of the lease. The lease and assignment were proved, and it was shown that the farol agreement, in respect to the additional or fourth story, was made with Planer & Keyser, the lessees, frior to the assignment to Weil & Braunsdorf, but of which agreement the assignees had no knowledge or notice at the time the assignment was delivered.

It appeared, therefore, that the defendants were not in possession as assignees of the lease, nor as tenants of the plaintiff, unless their occupancy as a copartnership firm made them such tenants, or they became so under the notice served upon them.

The evidence was, that the defendants rented the premises, including the fourth story, of the assignees of the lease. They thereby became the tenants of such assignees, and under-tenants of the premises. The legal relation of the parties is not affected or changed, by reason of the assignees being members of the co-partnership to which they rented. I cannot perceive any obj ection to the relation of landlord and tenant existing between an individual member and the firm of which he is a member. If, therefore, the defendants were tenants of Weil & Braunsdorf, the notice which was given to them by the plaintiff, and their occupancy afterward, would not create any relation of landlord and tenant between the plaintiff and themselves. They being tenants of Weil & Braunsdorf, had the right to refuse to recognize the plaintiff, and to disregard any notice he might give.

The additional or fourth story, erected upon the building specified in the lease, became a part of the demised premises, and passed under the assignment of the term to the assignees. The parol promise, to pay additional rent for such story, was wholly independent of the lease, and formed no part of it. It did not pass by the assignment; nor did the assignees, by acceptance of the assignment, become in any manner liable upon it.

An assignee of a lease is liable upon all covenants that run with the land. He is not liable upon mere personal or collateral covenants. The agreement to construct the additional story was not a demise of such story. Upon its erection, it became a part of the premises originally demised, and was covered by the original lease. The additional rent, however, could be recovered upon the new promise, but not upon any of the covenants in the lease.

These propositions are all covered by the case of Hoby v. Roebuck & Palmer (7 Taunt., 157). Roebuck leased premises for a term of twenty-one years, and afterward took Palmer into partnership, for the purposes of which, the demised premises were used, but were not sufficiently large. They agreed b jpa/rol, that if the landlord would erect an additional story over the house, they would pay, during the residue of the term, an additional rent of ten per cent, on the cost. The building was erected, and after they had paid the increased rent for some years, Palmer, before the rent accrued for which the action was brought, quitted the partnership and the premises. It was claimed that the contract for an additional rent was a demise of the new buildings, and ought, according to the statute of frauds, to have been in writing. But Gibbs, O.J., thought otherwise, that whatsoever was built, instantly became pa/reel of the premises already demised; and that this was a collateral contract, to which Palmer, no less than Roebuck, was chargeable during the residue of the term. The court m lane held that the original lease still existed; the new contract was, therefore, no demise of the premises. Only the original rent could be distrained for, and this was merely a collateral agreement to pay so much more money during the residue of the term.

It is clear that Planer & Keyser were liable on their agreement to pay the additional rent, and that such liability continued after the assignment of the lease. But it is equally clear, I think, that the additional structure, having become parcel of the premises already demised, passed by the assignment of the term, but did not carry with it any liability upon the parol agreement to pay. The assignees took the residue of the term, and had the right to use, occupy, and enjoy the whole premises (including the additional or fourth story), upon paying the rent reserved in the written lease.

As Planer & Keyser are liable only on their parol agreement, and as such liability does not attach to the assignees of the lease, or to those holding under them, the plaintiff has no remedy for the additional rent, except against Planer & Keyser, upon their promise. The defendants are not liable upon such promise, nor for use and occupation, nor upon any of the covenants in the original lease.

If the views I have expressed are correct, then it is immate^rial whether the assignees of the lease, or the defendants, had notice of the existence of the fourth story, or that it was one more story than was mentioned in the lease. It was parcel of the demised premises, and passed under the assignment; and no notice, that it was not included or mentioned in the lease, could charge the assignees upon the agreement to pay, or deprive them of the right to occupy and possess all the premises, under the covenants in the original lease.

For these reasons, I am of the opinion that the direction of the learned justice, in this case, was erroneous.

The judgment should be reversed, and a new trial ordered, with costs to the appellant, to abide the event.


text:
    HENRY T. ROMERTZE, Plaintiff and Appellant, v. THE EAST RIVER NATIONAL BANK, Defendants and Respondents.

      [Decided December 4, 1869.]
    Where a witness has been examined and cross-examined, and left the stand, it is within the discretion of the presiding judge to allow him to be recalled and examined, to lay a foundation for impeaching him.
    A refusal to allow it cannot be reviewed on appeal.
    Where a deposition of a witness taken out of court is—while the witness is under examination at the trial—shown to him, and he asked if he had signed it, and he saying he had, but his attention no farther called to it—Held, it could not be read for the purpose of showing that he had made statements therein inconsistent with his testimony at the trial.
    A proper foundation had not been laid by calling the witness’s attention to it.
    Before Barbour, C.J., Monell and Freedman, JJ.
    This case was tried before Chief-Justice Barbour and a jury.
    The action was to recover the value of twelve one-thousand-dollar United States bonds. It was alleged that the bonds had been deposited by the plaintiff with the defendants for safe keeping, and which, upon a subsequent demand, the defendants refused to return.
    The defendants alleged that the deposit was without hire; that they received the packages from the plaintiff without knowledge •of their contents, to be kept for his accommodation, without pay; that they kept the same, exercising great care and caution, and .subsequently delivered the same to the plaintiff.
    On the trial before a jury, the whole controversy was, whether the bonds had been returned to the plaintiff, and on that subject -the evidence was very contradictory.
    Newell, one of the defendants’ witnesses, testified on his cross- ■ examination, “I believe I was sworn before as a witness in this -case. That is my signature. The deposition was read over to :me before I signed it.”

      After the defendants had rested, the counsel for plaintiff offered to read in evidence the testimony of Charles Jenkins, taken de lene esse. The counsel for the defendants objected on the ground that the said Charles Jenkins was then present in court, and had already been twice examined orally as a witness in court on this trial, and also on the ground that the plaintiff had laid no foundation for the reading of said de lene esse examination. The court sustained the objection. The plaintiff excepted.
    The plaintiff’s counsel then offered to read the examination, signed by said Charles Jenkins, in evidence, for the purpose of showing that he made statements therein inconsistent with his testimony given on the stand in court on the trial. Defendants’ counsel objected, on the ground that the proper foundation had not been laid for reading the deposition for the purpose of contradicting the witness. The court sustained the objection. Plaintiff’s counsel excepted.
    Jenkins was then recalled by the plaintiff, and for the purpose of laying the foundation for contradicting and impeaching the witness, plaintiff’s counsel inquired of the witness, as in the following questions:

      Q. Were you asked, when examined out of court, “Can you state the last time the package was returned to the bank ?” and did you state, “ I cannot say; but it was between the first of November, 1865, and 17th of Hay, 1867 ” %

    Defendants’ counsel objected, on the ground that the plaintiff had rested his case, that the defendants had rested their case, and that this testimony was not in rebuttal; and on the further ground that the witness had already been on the stand twice, and examined and cross-examined as a witness in court, in the case, and it was within the discretion of the court to exclude questions asked of the witness, by the party recalling him, merely for the purpose of contradicting the witness. And that it was a proper case for the court to exercise that discretion, by excluding it.
    The court excluded the testimony, and the plaintiff’s counsel excepted.

      Q. Did you testify, on that examination, that you saw the cashier receive the package from the plaintiff ?
    The defendants’ counsel objected to this question on the same grounds specified in his objections to the last preceding question. The court excluded the testimony, and the plaintiff’s counsel excepted.

      Q. Did you swear, on that occasion, that you delivered Eo~ mertze the package, either in the last two weeks of April, or the beginning of May, 1867, and could not tell which?
    Counsel for defendants objected to this question on the same grounds as specified in the objection to the last preceding question. The court excluded the question. The plaintiff’s counsel excepted.

      Q. Did you swear, on the other occasion, that the package you delivered to him in April or May, was the same package that you saw him deliver to Carman, in 1865 ?
    Counsel for defendants objected to this question on the same grounds as specified in the objection to the last preceding question. The court excluded the question, and plaintiff’s counsel excepted. The plaintiff’s counsel then offered to read in evidence, the testimony of Zenos E. Newell, taken de bene esse in this action, for the purpose of showing that he made statements therein inconsistent with his testimony given on the stand in court on this trial.
    Defendants’ counsel objected, on the ground that the proper foundation had not been land for reading the deposition; and on the further ground that the witness was then present in court, and had already been examined orally, as a witness, in court, on the trial, and on the further ground that the proper foundation had not been laid for reading the deposition for the purpose of contradicting the witness. The court excluded the deposition. Plaintiff’s counsel excepted.
    Newell was then recalled by the plaintiff, and for the purpose of laying the foundation for contradicting and impeaching this witness, the plaintiff’s counsel inquired of this witness as in the following questions:

      Q. When examined before the judge, previous to the trial, were you asked, “What was the conversation?” speaking of a conversation about the 16th of January, when Hr. Eomertze called for his bonds, and did you answer, “ I don’t know ” ?
    Defendants’ counsel objected, on the ground that the plaintiff has rested his case, that the defendants had rested their case, and that this testimony was not in rebuttal, and on the further ground that the witness had already been on the stand in court, and examined and cross-examined as a witness in court in this case, and it was within the discretion of the court to exclude questions asked of this witness by the party recalling him merely for the purpose of contradicting this witness, and that it was a proper case for the court to exercise that discretion by excluding it. The court excluded the testimony, and the plaintiff’s counsel excepted.

      Q. Did you say, then, in answer to the question, “ What was the conversation? what was said?” “My answer is taken; I do not know“I wish to explain that what I meant is I did not understand what was said, but the conversation was in relation to a package Mr. Eomertze claimed to have in the bank ” ?
    Defendants’ counsel objected to this question, on the same grounds specified in the objection to the last preceding question. The court excluded the testimony, and the plaintiff’s counsel excepted.

      Q. Was this question put to you? “Is that all you can remember? Can you remember any of the words?” And did you not answer, “ I cannot remember any of the words used by either party” ?
    Defendants’ counsel objected to this question, on the same grounds specified in the objection to the last preceding question. The court excluded the testimony, and plaintiff’s counsel excepted.
    The jury rendered a verdict in favor of the defendants.
    A motion made at Special Term for a new trial was denied. Judgment was thereupon entered upon the verdict, and the plaintiff appealed from the order and judgment.

      Mr. Erastus Cooke for appellant.
    It was not necessary, in order to lay a foundation for contradicting a witness by a previous written statement, or deposition, to interrogate the witness as to whether he made certain statements in the writing or not (2 Phillips’ Ev., 962, Edward’s 4th Am. ed.).

      “ The proper course is to ask the witness whether or no that letter is of the handwriting of the witness. If the witness admit that it is of his or her handwriting, the cross-examining counsel, may, at his proper season, read that letter as evidence ” (2 Brod. and Bing., 286; Bellinger v. The People, 8 Wend., 598; Newcomb v. Griswold, 24 N. Y., 301.)
    The counsel cannot inquire of the witness whether or not such statements are in the letter. The letter itself must be read to show whether it contains such statements ” (2 Phillips’ Ev., 964-5).
    The doctrine that a witness may be impeached by showing that he has before made contradictory statements, has been extended to a deceased subscribing witness, whose handwriting is proved to verify an instrument. His declarations may be received to show that the deed witnessed by him was a forgery Phillips' Ev., 975, note 600). The depositions should be proved, and it was well enough proved, by showing it to the witness, and obtaining his admission that the signature to it is genuine. This proof would enable the plaintiff’s counsel to read in evidence whenever it was proper for him to make it evidence (Baker v. Arnold, 3 Caine, 279; Stephens v. The People, 19 N. Y., 549; 1 Greenleaf’s Ev., §§ 462-3-5; 2 Wait’s L. and P., 481-2-3.)
    The plaintiff’s counsel had the right to call back the witness to the stand and ask him, for the purpose of laying the foundation for his impeachment, whether he had made certain statements out of court, inconsistent with his testimony.
    The court erred in denying to the plaintiff this privilege.
    It is the invariable practice of the courts to allow a witness to be so called back after being dismissed, and even while the impeaching witness is on the stand (Angus v. Smith, 1 Moody and Malk, 473; Note 600 to Phillips' Ev., per Judge Cowen).

      Mr. William Fullerton for respondents..
    The only question of fact in the case was fairly submitted, to the jury upon a conflict of evidence, and their verdict is conclusive.
    The court, in the exercise of its discretion, properly overruled the offers made by the plaintiff to introduce evidence of what the witnesses, Jenkins and Newell, testified to when examined before trial.
    These witnesses were called by the defendant, and after being examined, were cross-examined at great length by the plaintiff, and permitted to leave the stand without being interrogated as to what they had testified to before trial. After the defendant had rested his case, the plaintiff proposed to recall these witnesses who had thus been cross-examined, to lay the foundation for their impeachment. It was objected to on the ground that the evidence was not in rebuttal of the defendants’ case, and that it was in the discretion of the court to exclude the offer.
   By the Court:

Monell, J.

The questions of fact in this case were so eminently proper for the decision of a jury, and the evidence was of so conflicting a character, that the case may be dismissed, so far as the facts are concerned, with the single remark that the verdict cannot be disturbed.

It is claimed, however, that error was committed on the trial, in the exclusion of evidence offered on the part of the plaintiff.

The irreconcilable contradiction in the evidence left it solely a question of the credibility of witnesses, and the evidence excluded by the court was intended to impeach two of the defendants’ witnesses, by showing, that upon an examination de bene esse, they had testified differently from the testimony they gave at the trial.

I have no difficulty in disposing of the exception to the exclusion of the several questions propounded to the witnessesHewell and Jenkins, which were designed to lay a foundation for reading their depositions.

They had each been examined and cross-examined on the trial, when the plaintiff had an opportunity, and could, without interfering with the "orderly conduct of the trial, have propounded to them each and all of the questions which were subsequently excluded. They were allowed to leave the stand without being interrogated, and after the defendants had rested, were called back by the plaintiff to again testify.

It was clearly within the discretion of the judge whether he would allow it or not. It was not in any sense rebutting evidence which was offered. Rebutting evidence is such as contradicts, modifies, explains, or varies the evidence of the other party. The depositions were intended, it is true, to impeach the veracity of the witnesses, by showing contradictory statements made by them on another occasion. Such statements might have tended to modify, explain, or even vary the evidence of those witnesses, and therefore proper as impeaching their veracity; but they were not evidence to modify or vary the case made by the defense. They might weaken the evidence, and induce the jury to discredit the testimony of the witnesses, but nothing more.

It was proper for the plaintiff to disprove any material facts which the defendants had proved, and that would have been rebutting evidence. But for the purpose of laying a foundation to impeach a witness, it is the duty of the impeaching party to interrogate him, that is, call his attention to the subject; and that must be done upon his cross-examination, and it cannot afterward be done except by the permission of the court in the exercise of its discretion. The rule, which requires an examination in chief to exhaust a witness, is equally applicable to a cross-examination. All these matters are under the direction and control of the presiding judge, and his discretion cannot be reviewed (Shephard v. Potter, 4 Hill, 202; Leland v. Bennett, 5 id., 286).

There was no error, therefore, in not allowing the witnesses to be re-examined.

The exclusion of the deposition of Newell presents a different and more difficult question.

The offer was to read in evidence the testimony of the witness, taken de bens esse, for the purpose of showing that he made statements therein inconsistent with his testimony given in court. The objection was, that a proper foundation had not been laid for reading the deposition. The witness had said, on his cross-examination, that he had been sworn before as a witness in the case ; that the signature shown him was his, and that the deposition was read over to him before he signed it.

The paper, which the plaintiff’s counsel offered to read, has not been printed in the case, but, I think, it sufficiently appears to have been the same deposition which the witness had said he had signed and sworn to. No other deposition was spoken of by any witness, and to hold that it was not sufficiently identified, would be a refinement to which I cannot consent, and an objection altogether too technical to be entertained for a moment. Beside, the deposition was not excluded on any such ground. It is evident that the reason for overruling the offer was, that the attention of the witness, when under examination, had not been directed to the parts of the deposition which it was proposed to read; for, upon the depositions being excluded by the court, upon the objection that a proper foundatio n had not been laid, an attempt was made to overcome the objection, by recalling the witness, but whose further testimony was then excluded by the court, in the exercise of its discretion. The general rule, in this mode of impeachment is, while the witness is on the stand, to call his attention to the time and place, when and where, and the person to- whom, the alleged inconsistent declarations were made. This rule, so far as it relates to oral declarations made out of court, has, I believe, no exception, and I have never known it to be claimed as a right, to call back a witness for the purpose of laying a foundation for his impeachment.

It is claimed by the appellant, however, that the rule is different in respect to written declarations or statements, and especially so, when such declarations or statements are made under oath, and are contained in an affidavit or deposition of the witness, made on another occasion.

The general rule is that the contents of a written paper are to be proved by the paper itself, and by that alone, if the paper be in existence. Having sufficiently proved and identified it, the whole paper becomes evidence, and may be read by either party. But the court must be in possession of the whole, as it may happen that the whole, if produced, may have an effect different from that which might be produced by a statement of part.

The rule as laid down by Hr. Phillips, in regard to written statements of a witness (1 Phil. Ev., 297), is thus stated. When the writing is produced, the cross-examining counsel may ask the witness if he wrote it; if he admits writing it) rite counsel cannot inquire of the witness whether or not such statements are in the paper; the paper itself must be read to show whether it contains such statements.

The case mostly relied on by the appellant’s counsel is certainly strongly in point (Clapp v. Wilson, 5 Denio, 285). The defendant produced a deposition of the witness and inquired of him whether the name subscribed to it was his signature, and he admitted that it was. That was held sufficient proof to allow the deposition to be read, for the purpose of contradicting the witness. The court says (p. 288), “ This being a sworn statement in writing, it was not necessary to call the attention of the witness in the first instance to the statements in it, which were intended to be relied on, with a view to explanation. This is only necessary when naked contradictory statements are referred to, for the purpose of impairing confidence in the witness.”

But that case has been, in effect, overruled by the Court of Appeals in one if not more cases. There is certainly no sufficient reason for a different rule in the two kinds of impeaching evidence. There is quite as much propriety in directing the attention of a witness to his sworn or written statements, for the purpose of allowing him to explain, as there is in regard to statements orally made. The writing, it is true, is the best evidence, and must of com-se be read; but it is just as important that the witness should have an opportunity to state why or under what circumstances he made it, as it is when the declarations were verbal. In one case a witness was allowed to show that a deposition, which varied from his testimony, was written in a language with which he was imperfectly acquainted (Lemoine v. Ganton, 2 E. D. Smith, 343).

In the case of Hubbard v. Briggs (31 N. Y. R., 518), the testimony of a deceased witness, given on a former trial, was read in evidence. Subsequently, it was offered to read a deposition of the witness in a chancery suit, for the purpose of contradicting his evidence, as read, and impeaching him. The testimony was objected to on the ground that the attention of the witness had not been called to the subject, and the objection was sustained. The court say this was not error (p. 537). “ Had the witness been living, and on the stand, it would not have been competent, by way of impeachment, to show that he made different and contradictory statements on other occasions, without first calling his attention to them. Without this, there is no foundation laid for the evidence. It cannot change the rule because the witness is dead, and the parties have stipulated that his evidence might be read as he gave it on a former trial.”

In Stephens v. The People (19 N. Y. R., 549), a deposition of a witness, made before a coroner, was introduced to impeach his credibility, and it was allowed, as there was no objection, that the attention of the witness had not been previously called to the portions of the evidence which were selected for that purpose / and the admission of the evidence was sustained on that ground.

And again, in Newcomb v. Griswold (24 N. Y. R., 298), a witness, on cross-examination, was asked whether he had ever made oath before a master in chancery, etc., which was objected to on the ground that the affidavit was the best evidence, and the objection was sustained. The court say the deposition was in writing, and should have been produced. “A witness is not bound to answer as to matter reduced to writing by himself or another, and subscribed by him, until after the writing has been produced and read or shown to him” This case does not meet the precise point, except inferentially. It does hold, however, that the paper must be read or shown to the witness. His attention would thus be called to the subject-matter, and he would have an opportunity of making such explanations as he might be able, which, according to the case of Hubbard v. Briggs (supra), must always be done.

Upon authority, then, there was no error in excluding the deposition of the witness Newell. He had not been examined in respect to it, further than to prove his signature. It had not been read to him, nor was he in any manner apprised of the purpose for which it was proved, or the use it was intended to make of it. He had, therefore, no opportunity to enter into explanations, or correct mistakes, if there were any. If the rule which requires, as a preliminary to impeachment, that the attention of the witness shall be called to the subject, means any thing, and is designed to protect the witness from surprise or misunderstanding, then enough was not done in this case to make the evidence admissible. At least, the parts of the deposition claimed to be contradictions of his evidence on the stand should have been read or pointed out to him.

The objection, that a proper foundation had not been laid, was, therefore, well taken.

In respect to the deposition of the witness Jenkins, the reasons for its rejection are still stronger. The deposition was not proved at all. It had not been shown to him, nor was his signature to it proved.

There is certainly á conflict between the case of Clapp v. Wilson (supra), and the cases in the Court of Appeals to which I have referred. But we are bound by and must follow the latter.

As the other exceptions, taken on the trial, were not alluded to on the argument, and are not noticed in the appellant’s points, we will deem them abandoned, and shall not consider them.

The judgment and order should be affirmed.