text:
    Elizabeth G. Lowber, Plaintiff and Appellant, v. William Kelly et al., Defendants and Respondents.
    1. A grantee of land, under a deed which, is void by the statute by reason of the land being held by a third person- adversely to the grantor, cannot, upon his grantor's refusal to bring an action to recover the land or to allow such action to- be brought in his name; maintain an action against the grantor and the adverse possessor, to. have the latter adjudged to surrender possession to the grantor, and the title and possession adjudged to the plaintiff as against the grantor.
    2. An action to recover the lands must be brought by the grantor, or in his name, by the grantee; but it cannot be so brought in his name without his consent, except since the statute of 1862.
    (Before Robertson and White, J. J.)
    Heard, June
    decided, October 9, 1862.
    This action was brought by the plaintiff, who was out of possession of certain lands she cl aimed,, against William Kelly and Gabriel Winter, defendants, the latter of whom was in possession thereof, to obtain a judgment, that the title to it is vested in the defendant, Winter, and he is entitled to the possession thereof,, and that as between him and the plaintiff, the title in fee simple thereto is in the latter, and that the defendant, Kelly, be required to surrender to the plaintiff the possession of the premises,, and pay her damages for withholding the same.
    The complaint alleges the ownership in fee of the premises in question, by one Gabriel H. Winter, in January, 1848, and its descent to the defendant, Winter,, as his sole heir at law, and a conveyance by the latter in September, 1860, of the premises to the plaintiff in fee. It further alleges that the defendant, Kelly, claims that at the time of the execution of the conveyance to the plaintiff, such premises were in his possession, and he then claimed them under a title adverse to that of Gabriel Winter. It also alleges that the plaintiff has not parted with any rights and claims to be owner in fee simple of such premises, and did not know, at the time of the conveyance to her, that the defendant, Kelly, claimed such premises under a title adverse to that of the defendant, Winter j also that she had requested Kelly to deliver up the premises, and the defendant, Winter, to allow her to commence a suit in his name, to. recover possession of such premises, offering to indemnify him against any costs, but he has refused.
    The demurrer to the complaint sets forth as its grounds,
    1st. That it is not alleged therein that Gabriel H. Winter was in possession of the premises in question on the 20th of June, 1842, or at any other time, or died seized thereof, or that the defendant, Winter, was ever seized of such premises in September 1860, or at any other time, while it is admitted that William Kelly claims that he was in possession of the premises adversely to the defendant, Winter.
    2d. That there is a defect of parties by joining the defendant, Winter, with the defendant, Kelly, in an action at law, in the nature of ejectment against the latter, at the same time that the title of the premises may be declared in the defendant, Winter, as between him and the plaintiff.
    3d, That several causes of action have been improperly joined, seeking equitable relief against Winter, and a judgment for damages against Kelly.
    This Court, at a Special Term, held by Chief Justice . Bosworth in December, 1861, ordered judgment on the demurrer, in favor of the defendant, Kelly, with costs. From which order and judgment the plaintiff brings the present appeal. The decision at Special Term is reported in 17 AbbotFs Pr., 452.

      Ira Shafer, for plaintiff, .(appellant.)

      I. There is no pretense that this is an action at law against Kelly, founded upon the. conveyance from Winter to the plaintiff, and hence the cases of Burhans v. Burhans, (2 Barb. Ch., 398,) Jackson v. Demont, (9 Johns., 55,) Jackson v. Olitz, (8 Wend., 440,) and Cole v. Irvine, (6 Hill, 634,) and not controlling.
    It is conceded by the demurrer that, as between Winter, whose default admits the allegations of the complaint, and Kelly, the former is the owner in fee and entitled to possession, and the latter has neither the fee nor the right to possession.
    The demurrer, also, admits that, as between the plaintiff and Winter, in virtue of the deed, the former is the lawful and equitable owner, and entitled to possession.
    II. The plaintiff’s right to the relief demanded is sustained by authority. The statute relied upon by defendant is considered with disfavor. (Humbert v. Trinity Ch., 24 Wend., 611; Hoyt v. Thompson, 1 Seld., 320, 347; Sedgwick v. Stanton, 4 Kern., 289; Crary v. Goodman, 22 N. Y., 170; 4 Kent’s Com., 449.)
    The maxim that there is no “wrong without a remedy,” means in one sense “the means given by the law for the recovery of a right,” and “whenever the law gives anything it gives a remedy for the same.” (3 Bl. Com., 123; Brooms’ Legal Maxims, 91.)
    The remedy that the plaintiff seeks has been recognized and adjudged from an early day, in several cases in this State, and in Massachusetts. (Jackson v. Vredenbergh, 1 Johns., 159; Jackson v. Brinkerhoff, 3 Johns. Cas., 101; Williams v. Jackson, 5 Johns., 489, 499; see Foot and Van Vechten’s Arguments; Jackson v. Leggett, 7 Wend., 377; Livingston v. Proseus, 2 Hill, 526; 4 Kent’s Com., 449; Wolcot v. Knight, 6 Mass. R., 418; Brinley v. Whiting, 5 Pick., 348.)
    The title is not extinguished, but remains in the grantor, who recovers for the benefit of the grantee. (Livingston v. Proseus, 2 Hill, 529.)

      The old practice was to insert counts in the declaration on the title of the grantor and the grantee, so that if the suit failed as to the one, it might succeed as to the other.” (Livingston v. Proseus, supra; 2 Burrill Prac., 314; Ely v. Ballantine, 7 Wend., 470; Adams on Ejectment, 1st Am. ed„ 188.)
    The objections now raised were made in Williams v.' Jackson, (5 Johns.; 489, 493,) and in Wolcot v. Knight, (6 Mass. R., 418,) and expressly overruled.
    To count upon demises from different lessors, and claim and recover on different titles, and to insert in the declaration as many counts as the plaintiff pleases is not a practice which is authorized by the Code. (St. John v. Pierce, 22 Barb., 362.)
    Under the Revised Statutes, the declaration might contain several counts, and several parties might be named as plaintiffs, jointly in one count and separately in others. (2 R. S., 304, § 11; Ely v. Ballantine, 7 Wend., 470.)
    And if the plaintiff had made Winter one of the lessors without his permission, his name would not have been stricken out on motion. (Adams on Ejectment, 1st Am. ed., 188, 189; Ely v. Ballantine, 7 Wend., 470; Doe d. Vine v. Figgins, 3 Taunton, 440.)
    Thus before the Code, the plaintiff would have had an adequate remedy and could have maintained the actión.. .
    His rights as against Winter, and Winter’s rights as against Kelly have not been affected by the Code.: The*,, remedy only has been changed.
    The action is brought, according to $ 111 of the Code, * by the “real party in interest.” \
    Winter is joined as a defendant as “ a necessary party'"1' to a complete determination or settlement of the questions involved therein’’ (Code, § 118.)
    And “the Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by. saving their rights. (Code, $ 122.)

      The plaintiff cannot compel Winter to sue. Nor is he “ the real party in interest.” (See Code as amended 1862, §111.)
    If our positions are unsound, the Code has deprived a party, in an action to recover ¡the possession of real property, of a remedy well recognized and • adjudicated before and since the Revised Statutes.
    If section 455 of the Code does not enable the plaintiff to avail herself of the provisions of the Revised Statutes, as has been adjudged, then the Code must furnish a remedy, or she is without any.
    If Winter should sue Kelly, a- recovery would enure to the benefit of Mrs. Lowber, (Livingston v. Proseus, 2 Hill, 526, 529;) and when he fails or refuses to sue, the law enables her to accomplish the same result by making him a defendant, and by adjudicating the rights of all of the parties.
    Kelly being a trespasser, cannot raise objections that Winter does not raise, but expressly waives by making default, and which Winter could not raise because of the estoppel created by his deed. (4 Com. Dig., 76, 81, [A.] [D.])
    As between the parties to the deed, it might operate by way of estoppel and bar the grantor. (4 Kent’s Com., 449; Jackson v. Demont, 9 Johns., 55; Livingston v. The Pern Iron Co., 9 Wend., 516; Van Hoesen v. Benham, 15 Wend., 164.)
    Winter cannot claim .as against his own deed, whether it is an estoppel or not. (Jackson v. Bully 1 Johns. Cas., 90; Jackson v. Stevens, 16 Johns., 110.)
    A quit-claim deed passes all the title of the grantor in esse, as well as a warranty deed.
    It is no objection that the recovery will enure to the benefit of the grantee in the deed. (Livingston v. Proseus, 2 Hill, 526, per Bronson; see argument of Van Vechten, in Williams v. Jackson, 5 Johns., 489, 492.)
    What the grantee accomplished before the Code indirectly, and by means of a legal fiction, in a case like the present, we seek to accomplish directly by a statement of
      the facts of the case as they exist. Every action now is emphatically an action on the case, and before the Code upon the facts stated in our complaint the plaintiff would have recovered.
    At all events, Winter would have recovered for the. benefit of the plaintiff. And the Code has not changed the legal rights of parties. If the doctrine contended for by the counsel for the defendant is to prevail, a person who is in possession of land without title may hold it forever. (See Van Vechten’s argument in Williams v. Jackson, 5 Johns., 491.)

      David P. Hall for the defendant, Kelly, (respondent.)
    I. The demurrer is well taken, because it appears by the complaint, that the defendant Gabriel Winter was out of possession of the premises described in the complaint at the time of his grant to the plaintiff, to wit, on the 14th day of September, 1860, and that the defendant William Kelly was then in possession of said premises, claiming under a title adverse to that of the plaintiff. The grant was therefore void under the statute of maintenance. (1 R. S., p. 739, §§ 147 and 148.)
    II. The demurrer is well taken because several causes of action are united in one complaint, a part against Kelly, and a part against Winter. First, the complaint is multifarious ; second, thereTs a misjoinder of parties defendant; one having an interest^ and the other having no interest, in the premises in controversy. The complaint must show that each person named as defendant has or claims an interest in the matter in controversy. (Pinckney v. Wallace, 1 Abbotts’ Pr., 82.) Here it is not pretended, that Winter has any interest in the suit,, or that he claims to have any interest.
    III. The complaint does not state facts sufficient to constitute a cause of action, because it fails to state that Winter, the plaintiff’s grantor, was possessed of the premises granted at the time of his grant to the plaintiff, and fails to state that he ever was possessed. It should have stated affirmatively, that at the time of the grant, he was in possession, thereby giving the defendant an opportunity to traverse the fact.
    IV. The plaintiff’s complaint does not. state facts sufficient to constitute a cause of action against the defendant, Winter, because the plaintiff, by taking a deed which the statute declares to be void, and which confers upon the plaintiff no right as against Kelly, did not acquire thereby any equity, which entitles her to require the defendant, Winter, on being idemnified, to bring a suit to recover the possession of the premises for her, nor, (on his refusing to do so,) to maintain a suit against Kelly ■ and Winter in her own name, to recover possession of the premises as against Kelly.
    Hence there was here a palpable misjoinder of parties defendant, the provisions of the Code not warranting: the making Winter a party, for the purpose claimed in the complaint, for he is not the actual occupant, nor a person exercising acts of ownership, or claiming title thereto, or to some interest therein, at the commencement of the suit, which is necessary to render him liable in ejectment. (Denio, J., in Child v. Chappell, 5 Seld., 259; Ingraham, J., in Pinckney v. Wallace, 1 Abbott’s Pr., 82.)
   Robertson, J.

The Revised Statutes (vol. 1, p. 739, § 148) provide that every grant of Énds shall be absolutely void, if at the time of the delivery thereof they shall be in the actual possession of another claiming under a title adverse to that of the grantor; this is substantially the same as the Revised Laws of 1813. (Yol. I, 173, § 8.) The plaintiff’s case requires that such statute should be read as though it made such grant void only in a court of law, but allowed the full benefit of it to be obtained in a court of equity, by simultaneously calling upon the grantor to recognize the title of the grantee, and compelling the claimant under an adverse possession, to surrender it. The process of reasoning, by which it is proposed to accomplish this result, is apparently simple, and is as follows: The party claiming adversely is, of course, not entitled to hold against the former real owner and grantor of the plaintiff, and such grantor is not entitled to hold against the plaintiff, (Livingston v. Proseus, 2 Hill, 526, 529,) therefore, the adverse tenant is not entitled to hold against the plaintiff; this, however, leaves one gap, to wit: that the statute in question disables some of those, who otherwise would have a right to the land, from its recovery. Whatever may be the disfavor, into which the statute has fallen, courts are still bound to enforce it, leaving the Legislature to carry that disfavor if it exist to its conclusion, viz., a: repeal. ° It was enacted to prevent actions being brought for land, except, either by those who were dispossessed of them, or those whom the law made their representatives, and to discourage acts of maintenance. The plaintiff would have its object to be simply to compel a party to have recourse to a court of equity instead of a court of law. Ho such purpose, has ever been suggested before for such statute. There is no doubt, that, in every case like this, counts might formerly have been inserted in a declaration, claiming under both grantor and grantee; so, that, if the grantor had actually had previous possession the grantee might recover. It is equally true that, although the whole truth must be told, under the present system, there is no difficulty in recovering under it by stating the conveyance to the plaintiff and omitting to state the adverse possession, if there is any doubt about it; because, if it be certain, the grantee’s right to possession must fail. I do not see that the plaintiff could ever have maintained, in its proper sense, the action in her own name if the possession was adverse. She might have carried it on in another’s name; but so far as she was concerned the issues must be decided against her. Winter is, certainly, entitled to sue, and is, therefore, the real party in interest; until he recover the plaintiff is bound to abstain from suing.

The error of the reasoning on behalf of the plaintiff lies, in supposing that without the future action of her grantor, she has gained an immediate right to the land; this would repeal the statute entirely. The law so far tolerates the conveyance to a grantee, of lands held adversely, as to acknowledge his right when his grantor has recovered the lands; hut, as the law does not permit lawsuits for land to be sold, the grantee is dependent upon the volition of the grantor for realizing his purchase. It is true, the party holding adversely cannot set up the conveyance by his adversary against him, for it does not injure him; but this is different from allowing a party to accomplish what the statute meant to defeat, to wit, the promotion of litigation.

, , It is not strictly accurate to say the plaintiff could, under the circumstances, of this case, before the adoption of the Oode, have recovered ,• for the complaint alleges that the defendant, Winter, refuses to bring any suit. Will it be pretended that any authority, before the Oode, sanctioned a suit brought by her, without his consent in his name, or her own, at her election ? If so, no section of the Oode has altered it, and there is no need of making Winter a party. The statute of 1862 would be in such case useless, and half the prayer for relief sotight. in this action would be superfluous. Undoubtedly that statute sanctions actions hereafter brought by the grantee in the grantor’s name; but it no where sanctions actions in the grantee’s name. Until that change was made, the plaintiff could not have obtained any relief in the grantor’s name, without his consent; and the .argument of the learned counsel, ixxWillimis v. Jackson, (5 Johns., 491,) was perfectly sound, with a single qualification, that a person in possession of land may hold it forever, provided the party dispossessed ■ does not bring .a suit in his own name. He cannot sell the right of action to others.-

Various anomalies are proposed in this case, as, for example, that Winter shall recover judgment in a suit in which -he is defendant, and lose the fruits of it forthwith by. a simultaneous judgment against him in the plaintiff’s favor; these are clearly two different causes of action. They do not arise out of the same transaction, one growing out of the dispossession, the other out of the deed; nor out of transactions connected with the same subject of action, the land not being the subject of the action, but its wrongful possession, (Durkee v. Saratoga and Wash. R. R. Co., 4 How. Pr., 226; 2 Code R., 145; Colwell v. N. Y. & Erie R. R. Co., 9 How. Pr., 311; Coster v. Same, 5 Duer, 677,) and clearly the cause of action against each defendant does not affect the other. (Code, § 167.)

The complaint is also defective on the plaintiff’s own theory, since it does not allege that Kelly ever had adverse possession, but only that he claims that he claimed it. This would not make the grant to the plaintiff void, nor show any necessity to make Kelly a party to the relief sought against Winter.

But the complaint is defective on the merits, because no equity could formerly arise from a deed declared void, so far as it undertakes to confer any rights to sue a third person; and this action was commenced before the late statute, and is not iff the grantor’s name.

The order should be affirmed with costs.

White, J., concurred in affirming the order.


source: Caselaw Access Project

author: By the Court—White, J.

license: Public Domain

text:
    John and States D. Morrison, Plaintiffs and Respondents, v. Amos M. Atwell et al., Defendants and Appellants.
    1. Where an assignment for the benefit of creditors is made, by the members of a partnership, giving preference to the payment of the partnership debts, a creditor of the partnership cannot have the assignment set aside as void, because its provisions as to the subsequent payment of creditors of individual partners contain a direction calculated to hinder and delay them. No creditor but the one who is hindered, delayed or defrauded by the particular provision complained of, can avoid the instrument on that account.

      2. An assignment purporting to transfer real as well as personal property, for the benefit of creditors, is not rendered void by a direction to pay rents, taxes and assessments which may become due before the lands can be sold. If the assignment contemplates an immediate sale, such a provision may, in the absence of evidence to the contrary, be presumed to have been intended for the benefit of the creditors, by increasing the fund.
    3. Where copartners made an assignment which recited their copartnership, and their indebtedness as such, and assigned all the “ property of every name and nature whatsoever of the said parties of the first part.”

      Held, that this was not an assignment of the individual property of the . members of the partnership; and hence a direction in the assignment to pay rents, &c., due on lands, &c., assigned, did not apply to rents due from one partner individually for his dwelling house.
    (Before Robertson, White and Barbour, J. J.)
    Heard, June 9, 1862;
    decided, October 11, 1862.
    Appeal from a judgment entered after a trial of the cause at a Special Term, before Mr. Justice Moncbief, without a Jury, on the 21st of November, 1861.
    The action was brought by the plaintiffs against the defendants, Peleg G. Berry and Homer L. Smith, who were judgment debtors of the plaintiff, and Amos M. Atwell and Vincent Kenyon, to whom Berry and Smith had made a general assignment for benefit of creditors. The object of the action was to set aside the assignment and have a receiver appointed and directed to pay the plaintiffs’ judgment.
    The assignment was, by its terms, expressed to be an indenture made, &c., “ between Peleg G. Berry and Homer L. Smith, copartners, doing business in the city, under the name, style or firm of Berry & Smith of the first part,” &c., &c., and recited and declared that “whereas the said copartnership is justly indebted in sundry considerable sums of money, and has become unable to pay or discharge the same with punctuality, or in full, and the said parties of the first part are now desirous of making a fair and equitable distribution of their property and effects among their creditors:
    “ Now, therefore, this indenture witnesseth, that the said parties of the first part, in consideration of the premises,” * * * assign to the parties of the second part * * * *. “ All and singular, the lands, tenements, and hereditaments, situate, lying, and being within the State of Hew York, and all the goods, chattels, merchandise, bills, bonds, notes, book accounts, claims, demands, choses in action, judgments, evidences of debt, and property of every name, and nature whatsoever of the said parties of the first part, except such as is by law exempt from levy and sale under execution, to have and to hold,” &e., &c.
    “ In trust, nevertheless, and to and for the following uses, intents, and purposes — that is to say :"
    “ That the said parties of the second part shall take possession of all and singular the lands, tenements and hereditaments, property and effects hereby assigned, and sell and dispose of the same, and convert the same into cash with all reasonable dispatch and shall also collect all” debts, &c., &c., * * * * “ and. by and with the proceeds of such sales and collections the said parties of the second part shall first pay” costs, * * * * the expenses of the assignment, * * * * “ and all rents, taxes, and assessments due, or to become due, on the lands, tenements and hereditaments aforesaid, until the same shall be sold and disposed of, and by and with the residue or nett proceeds and avails of such sales and collections the said parties of the second part” were directed* to pay the partnership debts in a certain order of preferences, and afterward the individual debts of the partners share and share alike.
    Among other facts, the Oourt found that, at the time of executing the assignment, the defendant Berry occupied a dwelling house under a letting which was to terminate about six months thereafter: and also found that, at the time of executing the assignment, the assignors’ individual debts were unequal in amount, and that one of them (Berry) had individual property, but that the other had none.

      The plaintiffs having obtained judgment declaring the assignment void, the defendants’ took the present appeal therefrom.

      William Fullerton, for defendants, appellants.
    Argued that the assignment was valid; and as to the provision in reference to the payment of individual debts, cited Collomb v. Caldwell, (16 N. Y. R., 484,) Goodrich v. Downs, (6 Hill, 438,) Barney v. Griffin, (2 Comst., 365,) Bogert v. Haight, (9 Paige, 297,) Curtis v. Leavitt, (15 N. Y. R., 96, 97,124,) and cases there cited.

      T. D. Pelton, for plaintiffs, respondents.
    I. The direction to pay rents, &c., delays the creditors. It is a power which the law does not confer upon assignees for the benefit of creditors, and renders the assignment void. (Jessup v. Hulse, 21 N. Y. R., 168, 169; Burdick v. Post, 12 Barb., 168.) The deed transfers individual as well as partnership property, (Wharton v. Fisher, 2 Serg. & R., 178,) and the provision appropriates copartnership property to pay individual debts first, which is fatal. (Wilson v. Robertson, 21 N. Y. R., 587.)
    Again, this provision makes the amount for which some of the creditors are preferred dependent upon the action, if not upon file discretion, of the assignees. The debtor must declare his preference at the time of executing the assignment, and the rights of creditors must be fixed by the deed itself. If they are left subject to the action of the assignees, nothing passes under the deed. (Boardman v. Halliday, 10 Paige, 228; Barnum v. Hempstead, 7 Paige, 572.) Moreover, this provision also directs the payment of moneys which the assignors were not, and never could become, liable to pay.
    An insolvent debtor can only assign his property for the benefit of his creditors, and direct it to be applied to the payment of debts due, or which will become due, in consequence of some engagement made by the debtor before the assignment. (Burr. Assign., 234.) Any trust in the deed which can possibly interfere with the immediate distribution of the fund among the creditors, vitiates the assignment. (Dunham v. Waterman, 17 N. Y. R., 9; Mead v. Phillips, 1 Sandf. Ch., 87; Burr. Assign., 204; Mead v. Phillips, supra.)

    II. The provision by which the joint effects of the firm are taken to pay the debts of its individual members irrespective of the claim of each-member upon the fund, so that the share of one partner may be taken to pay the debts of the other, to the exclusion of his own creditors, furnishes conclusive evidence of fraudulent intent on the part of the assignees. (Wilson v. Robertson, 21 N. Y. R., 587; Smith v. Howard, 20 How. Pr. R., 121.)
    III. The assignment cannot be helped by extrinsic evidence showing that there were no lands or tenements assigned, or that there was no individual property, and that the assets were not sufficient to pay the copartnership debts. The parties having provided in the assignment for the payment of rents, &c., and for a surplus after payment of copartnership debts, they cannot say there was no real estate, or that there could be no surplus. They are estopped by their deed.
    1. It is immaterial whether occasion has arisen for the operation of the illegal powers conferred upon the assignees. The question is, what have the assignors enabled the assignees to do. The law presumes that they intended all that their instrument provides. (Mead v. Phillips, supra; Goodrich v. Downs, 6 Hill, 438 ; Collomb v. Caldwell et al., 16 N. Y. R., 484; Barney v. Griffen, 2 Comst., 365, 371; Smith v. Howard, 20 How. Pr. R., 128.)
    IV. The assignment being void as to the individual . creditors of the assignors, is void as to all. (Leitch v. Hollister, 4 Comst., 211, 215.)
   By the Court—White, J.

An assignment was made by the defendants, Berry & Smith, copartners, of all their property, to pay, first, the partnership debts with certain preferences, and then to pay the individual creditors of both partners in full, or pro rata, if the surplus-was insufficient to pay in full.

The plaintiffs are copartnership creditors, and bring this action to set aside the assignment, on the ground that it hindered and delayed creditors, and was therefore void. They pray, also, for payment of their own debt, &c. On the trial they waived all allegations of fraud except two, viz:

First, that the assignment purported to assign lands, tenements and hereditaments, and directed the assignees to sell and convert the same into money, with all reasonable despatch, and to pay all rents and assessments due, or to become due on said lands, &c., until they were sold; which direction," the plaintiffs allege, delays and hinders creditors, because, being indefinite as to time and amount of payments to be made for those purposes, it wastes the personal property indefinitely, in payments to be made for taxes, rents and assessments for the improvement of real estate, from which nothing may ever be realized for the creditors; and so postpones, hinders and delays creditors, and wrongfully postpones the distribution of the personal estate among them.

Second, that the assignment directs that after all partnership creditors are paid in full, the individual creditors of both partners shall be paid out of the residue of the partnership fund, share and share alike, without making any provision for the application of the fund to the payment of such creditors, in accordance with the right and interest of each partner in the fund. As the assignment stands, the share of one partner in the surplus fnnd may be applied towards the payment of the individual debts of the other, while some of his own debts may remain unpaid; thus, suppose one partner, A., owes $100 and "the other partner, B., owes $500. The surplus, after paying copartnership debts, may be $200, in which the interest of each partner is equal, viz., $100 for each. The share belonging to A., the partner who owed but $100, would be just sufficient to pay his individual debt, in full. But under the assignment, this $200 of surplus not being sufficient to pay all the individuál debts of both partners, in full, it must be apportioned, pro rata, among the creditors of both, which disposition of it would leave two-thirds of the individual debts of A. unpaid, thus unjustly diverting two-thirds of A.’s share from the payment of his own debts to the payment of the debts of his partner B.

This would be good ground for an individual creditor to ask that the assignment be declared void, as to the distribution which it ordered of the surplus after the payment of the partnership debts, and the assignee would be ordered, upon such application, to apportion the surplus, after the payment of the partnership debts, to and among the individual creditors of the copartners, according to the rights of the respective copartners in such surplus; or, perhaps a receiver of the surplus (if any surplus there should be) might be appointed, and the individual creditor bringing the action to avoid the assignment, so far as it affected the surplus, might obtain thereby a priority in his own favor as to payment out of that surplus. But it would not afford a ground for setting aside the assignment, as to the copartnership property- and the -payment of the partnership debts, in which the individual creditor could have no interest, and by which he could not be in any manner affected. Kor would it afford a ground for a partnership creditor to ask that the assignment be declared void, because the individual debts were in no event to be paid until the partnership debts (his included) were paid in full; and this provision respecting the individual debts could neither hinder, delay nor defraud him; and no creditor but one who is hindered, delayed or defrauded by the particular provision complained of, can demand to have the instrument, upon that account, avoided.

And as to the payment of the rents, taxes and assessments that might come due before the lands, &c., should be sold, it is, I think, to be presumed, in the absence of all proof to the contrary, that this provision was intended in good faith for the benefit of the creditors; that it contemplated an increase of the fund by the addition of the avails or proceeds of a sale of the real estate, in which case (that is in the event of a sale of the real estate) the rents, taxes or assessments due at the time of sale, must of necessity be paid; and the direction in the assignment to sell with dispatch, shows that it was not intended to hold the real or leasehold estate unreasonably, or so as to produce a waste or exhaustion of the personal', but that the design was to sell it forthwith.

And I think the assignment being made by the copartners, and purporting to convey all their property, assigned only that which was the joint partnership property, and not any of their- individual property. It did not, therefore, convey the leasehold estate of the partner Berry in his private dwelling house-, and consequently, when the assignment directed the application of the copartnership funds to the payment of rents, &c., it only directed them application to the payment of copartnership rents, and not to the individual rents due, or to come due, for the partner Berry’s bouse.-

The judgment should therefore be reversed, and the plaintiff not claiming to show any other frauds or reasons for avoiding the assignment than those above considered, judgment should be rendered for the defendants, with costs.

Judgment accordingly.


author: Robertson, J. White, J. Barbour, J.

text:
    William Fettretch, Plaintiff and Respondent, v. Jeremiah Leamy, Defendant and Appellant.
    1. Under a covenant,, in. an executory contract, for the sale of a lot of land, by the vendor, to erect upon an adjoining lot, along the boundary line between the two lots, a wall, and to grant and' convey to the purchaser the right to use such wall irr the erection of a house on the lot so agreed to be sold to him, and “for that purpose to insert the beams thereof into such wall, to the extent .of four inches,” and two chimney backs to the like extent, and “ to keep and maintain such beams and chimney backs therein, so long as such wall should stand,” such wall “ to be a party wall between the two houses to be built” on such two lots, the contract containing also, in terms, a present grant of such easement in such wall to be built: Held, that the' purchaser did not acquire thereby a right to use such wall in. any other way than that so specified; and that he was not entitled to prolong the lintel course of his front wall, across the boundary line of such two lots, so as to enter into the front wall of the vendor’s building at the pointer line where those walls, meeting, adjoined the party wall.
    2. If the vendor erects on such adjoining lot a wall along such boundary line, more extensive than by the terms of such agreement, he is bound to do, although he refuses, to allow the purchaser to use it as a party wall, pursuant to such terms, no increased stability or value which a building, erected by the latter on the lot so bought Joy him, would have derived from such use, if permitted, or increased expense of making such building equally stable and secure by other means, arising from not being allowed so to use it, form proper elements in estimating the damages' of the purchaser, by such refusal, and it is error to admit evidence thereof, as such. (Per Robertson, J.)
    3. The term “party wall,” when used in such an instrument, without restrictive terms, .and in its general ordinary signification, means a dividing wall between two houses, to be used equally for all the purposes of an exterior wall, by both “parties,” that is, by the respective owners of both houses. This use, in its full, unrestricted sense, embraces not only the use of the interior face or side of the wall,, but also- such use of it as is necessary to form a complete and perfect junction in an ordinary good mechanical manner, between it and the other exterior walls of the house. (Per White, J.)
    (Before Robertson, White and Babbour, J. J.)
    Submitted June 16) 1862;
    decided October 11, 1862.
    This action was brought to recover damages against the defendant for interfering with the use by the plaintiff of a wall standing upon the land of the former, adjoining the land of the latter.
    In the year 1860, the defendant owned in fee three lots of land 100 feet deep, adjoining each other, situate at the corner formed by the intersection of the southerly side of Fifty-fifth street and easterly side of Third avenue, in the City of Hew York; two of the lots being 25 feet wide, and the remaining corner one five inches wider. In that year, on the 27th of September, the parties to this action entered into an agreement under seal inter partes, wherein the ownership by the defendant of such lots, as laid down on a diagram annexed and numbered 1, 2 and 3, was recited. By it the defendant, in consideration of the plaintiff’s covenant therein contained, agreed to convey to him for a certain price, to be paid partly in cash, partly on the delivery of the deed, and partly by mortgage, the lot" designated on such diagram as Eo. 3; and also immediately to erect a wall on the south side of lot Eo. 2, so as to adjoin the northerly side of the lot so sold to the plaintiff; such wall to be 50 feet deep eastwardly from the easterly side of the Third avenue, and to be “ four “ stories high .above the sidewalk; that is, high enough “for a four story house.” The defendant also,,by such agreement, covenanted that he should grant and convey, and he did thereby grant and convey to the plaintiff, the right “to use such wall in the erection of a house” on the lot so agreed to be sold to him, and “ for that purpose “ to insert the beams thereof into such wall to the extent “ of four inches,” and two chimney backs to the like extent, and “to keep and maintain such beams and chimney backs “ therein, so long as such wall should standsuch wall “to be a party wall between the two houses to be built” on such two lots Eos. 2 and 3. The defendant further thereby covenanted not to pull down such wall, or do any act tending to its destruction. He also thereby agreed to deliver, on the 27th of October following’, to the plaintiff, a full warranty deed of lot Eo. 3 so sold, free from all incumbrances except the mortgage, upon receiving a certain sum, and to pay the plaintiff any damages he might sustain in building before that time, and the expenses of searching the title, in case it should prove defective. It was also declared therein that these covenants should run with the land and bind the parties, their heirs and assigns.
    The defendant and his wife, on the 27th of October, 1860, delivered to the plaintiff a deed, executed by them, of lot Eo. 3, in which it was declared that it was made pursuant to the agreement of September previous; and that “ all the covenants a.nd agreements therein contained “ relating to the party wall therein mentioned and the right “ to use the same, and all other covenants not necessarily “ satisfied by such deed and the payment of the purchase-“money,” were “to continue and be obligatory upon “the respective parties thereto according to the tenor “ thereof."
    The complaint in this action, after setting forth the making and contents of the agreement of September, 1860, alleged the performance by the plaintiff of all his covenants therein, and the execution'» to him on the 27th of October, 1860, by the defendant, of a deed of the lot in question, wherein the latter did for good consideration agree, that such “ wall should remain forever a party wall “ between the plaintiff’s and defendant’s lots, and that the “ former could use it in the erection of the building on his “ lot, as fully and to the same extent as if it were a part “of and erected at the same time as the walls" of such building. It then averred, that on the 29th of September the plaintiff commenced a four story building on his lot, and completed it in March, 1861; and that in the course of such erection the defendant “wholly prevented the “ plaintiff from using such wall as a party wall, for the “ erection of the front wall of such building, and hindered' “ the plaintiff from joining any portion of such front wall “ with or upon the front portion of such party wall" as it was necessary, for the safety and permanence of such building, for the plaintiff to do; and further, that by reason of such acts of the defendant, the- plaintiff was compelled, at great inconvenience and expense, as well as loss of time in the completion of his building, to lay other and separate foundations, and erect thereon other separate supports, by which to sustain the northerly end of the front wall of his building; and although such work was done in the best possible manner to make such building secure, yet by reason of such front wall being separated from such party wall, it was less secure, permanent and strong than it would otherwise have been -; also, that, in consequence of the necessary occupation of the basement doorway by such foundation and support, it was rendered inconveniently narrower than it otherwise would have been, whereby the value of such building and property was diminished;' and the plaintiff claimed such damage to amount to $1,000.
    The answer of the defendant admitted the agreement of September, but took issue in the existence of any such covenants in the deed, by him, to the plaintiff; also, upon the allegations of the complaint, as to Ms hindrance of the plaintiff from using the wall as a party wall, or from using any portion of the front, wall of his building with the front of such party wall; also, upon the necessity, in consequence of any act of his, of laying foundations and erecting supports, to sustain the northerly end of such front wall; also, upon the inferior security or permanency of the front wall of the plaintiff’s building, by reason of its separation from the party wall; also, upon the narrowing of the doorway, by the foundations and supports, and generally, any diminution in value of the plaintiff’s building.
    The action was referred to Orsamus Bushnell, Esq., as ' Referee, to determine the issues therein. He reported in favor of the plaintiff, and found, as matters of fact,
    . 1st. The" mating of the contract to sell the lot in question, as stated in the complaint.
    2d. A conveyance of such lot to the plaintiff by the defendant, by a deed, but only with such provision as to the continuance of covenants, as is herein above stated.
    3d. The erection of a four story building by the plaintiff, on the lot so conveyed to him, and the obstruction by the defendant, of-the plaintiff, “in the way of his using the “ front of the party wall, built by him as a party wall, for “ the erection of the front wall of the plaintiff, and Ms “ refusal and hindrance of the latter from joining any por- “ tion of the front wall of Ms building within or upon the “ front of such party wall.”
    4th. A usage, and, for the safety and permanence of such a building as the plaintiff’s, a necessity, to exercise the rights of using the front of such a party wall, by tying therein.
    5th. A compulsion on the. plaintiff, by reason of such hindrance by the defendant, to erect, and his erection, of other and separate foundations and supports for his Mont wall,on which to sustain the northerly end of such Mont wall, at considerable expense, inconvenience and loss of time.
    6th. Notwithstanding the proper erection of such foundations and supports, inferior security, permanence and strength of the plaintiff’s building, by reason of his not being permitted to rest it, and actually resting it, on the Mont of such party wall, the narrowing and inconvenience of the entrance doorway to the basement thereby, and the inferior value of the building to what it would have been if the plaintiff had been permitted “ to use the front of “ such party wall, by resting the Mont of his wall upon it, “in the usual way.”0
    7th. Damage to the plaintiff, by such acts of the defendant, to the amount of $1,000.
    The conclusions of law of the Referee were :
    I. That the defendant is chargeable with the breach of the contract so made by him, in refusing and preventing the use of the Mont of such party wall, by the plaintiff.
    II. That the defendant owes the plaintiff one thousand dollars, as damages for such breach, with interest, Mom the date of such report.
    The defendant excepted to the third, fourth, fifth and sixth findings of fact in the report of the Referee, by written exceptions, duly filed.
    On the trial it appeared that the plaintiff commenced building on his lot the day after the contract. The defendant had previously begun to build on his, and had completed the side and front walls so far as to have finished a brown stone lintel on the.first floor of the latter, extending to the line of the plaintiff’s lot; the plaintiff then undertook to cut off four inches in length, of such lintel, in order to have the lintel of Ms Mont wall extend that distance beyond the dividing line of the lots, and lap over that part of the defendant’s building which belonged, in common, to its front and side wall; the defendant resisted the attempt, and the plaintiff abandoned it. Evidence was also given to show that the defendant verbally forbade the plaintiff’s putting in anchors in his front walls, and interlocking the bricks of the front walls of both buildings, at their junction; but never otherwise prevented him from doing so. The evidence was contradictory as to the fact of insertion of anchors and tying the front walls of both buildings together, by interlocking the bricks.
    Ho evidence was given as to the meaning of the term. “party wall” as used by builders, or owners of, or dealers in real estate, or to show that it had acquired any' technical signification beyond its ordinary one. Evidence was, however, introduced, of the practice of builders, in connecting front walls of adjoining houses, when the dividing wall was a party wall; but it was conflicting as to the usage, when such party wall stood entirely on one person’s land, and the other had a mere easement in it, or privilege of using it. Evidence was also given to show the superiority in firmness, appearance and convenience of the mode of uniting the walls, attempted» by the plaintiff and opposed by the defendant. The plaintiff testified as to the impossibility of making his building secure, without being aided by the support of the wall, intended as a party wall. Upon that point the testimony was conflicting.
    A number of witnesses, builders, dealers in real estate, and persons conversant with party walls, were examined as to the custom, under an agreement, such as that of September, 1860, in all its parts, after reading or stating them to such witnesses, of resting a part of the lintel course of the building of the party having the privileges therein granted, upon the adjoining wall,by cutting a place therein. They differed widely in their views of the custom, generally admitting, however, that they had never seen a similar agreement; and many were more influenced in their testimony by the grant of the privilege of inserting beams four inches, than by the wall being described as a party wall. Two of the plaintiff’s witnesses, (Haldrich and Duffy,) testified that they did not consider it as a full party wall agreement, but simply as one to use four inches of the party wall.
    Evidence was both admitted and excluded as to the negotiations between the parties before the execution of the agreement of September, 1860, to which exceptions were taken. Evidence was also given to show the inferiority of the plaintiff’s building, by reason of Ms not having been allowed to insert the lintel course of Ms front wall in the front part of the defendant’s front wall, and consequent damage to its value. Questions were twice put to the defendant as to preventing the plaintiff from connecting the two front walls, which were excluded; but upon what -ground does not appear. A question as to the cost of connecting the walls, at the time of the trial, was excluded, and exception taken thereto.

      W. R. Stafford, for defendant, appellant.
    I. The agreement of the defendant was, not to build a party wall, but that the wall when erected should then remain a party wall.
    He built the wall, and would have been liable to an action for non-performance, if he had not extended it to the front line of his lot. Until so erected, the plaintiff had no right to touch it, except to insert beams and chimney-backs, as specifically reserved by the agreement; and any other interference by him, however careful, would have been a trespass. (Eno v. Del Vecchio, 6 Duer, 17.)
    II. The evident intent of the parties at the time the agreement was made, was so to restrict the immediate use of the wall. In construing a'covenant, it must be considered with the context, and performed according to the intention of the parties as derived from both. (Marvin v. Stone, 2 Cow., 781; Bull v. Follett, 5 Id., 170; Roberts v. Roberts, 22 Wend., 140.)
    The situation of all parties and the subject matter are to be considered. (Wilson v. Troup, 2 Cow., 195.)
    III. The plaintiff cannot claim the benefit of any forced construction of the agreement in his favor. It cannot be enlarged by parol testimony, and the evidence tending so to do was clearly erroneous.
    The right claimed by plaintiff to enter upon the defendant’s front wall, and occupy it for a permanent purpose and for an indefinite time, cannot be created otherwise than by a conveyance sufficiently explicit to carry a freehold. (Brown v. Woodworth, 5 Barb., 551; Houghtaling v. Houghtaling, 5 Id., 379; Mumford v. Whitney, 15 Wend., 380; 6 Hill, 61; 4 Johns., 81.)
    IV. The agreement, in the first instance, merely conferred a license to use for specific purposes. The easement could not take effect until the houses were finished. (Giles v. Dugro, 1 Duer, 331-333.)
    V. The plaintiff was in no way prevented from connecting his front with the wall, except by the refusal of defendant to allow him to cut off four inches of the lintel in question, and carry plaintiff’s lintel across; and the front was in fact properly tied to the side wall,- although the defendant did not covenant to support the front. There was, therefore, no such breach of the agreement as to authorize an action against the defendant. (Palmer v. Fort Plain, &c., Co., 1 Kern., 381-388; 25 Wend., 367, 368; 1 Denio, 513.)
    VI. There was no evidence upon which to base any claim for the damages awarded by the Referee. The true rule would have been, what it would have cost to place the parties in the same position as required by plaintiff’s version of the contract, but that was excluded by the Referee.
    VII. The plaintiff could not justify the proposed trespass by him by evidence of custom. (4 Duer, 61.)
    VIII. Having allowed plaintiff to go into proof as to .-custom, the Referee erred in not permitting defendant to contradict it by similar evidence.
    IX. The testimony wholly failed to establish any definite custom on the subject.
    X. The Referee erred in many of the minor questions arising on the trial; and to such an extent as to clearly entitle the defendant to a new trial.
    XI. The defendant’s motion to dismiss the complaint should have been granted, for the reasons assigned; and as it is submitted that the plaintiff has, on the entire evidence, failed to make out any cause of action, the judgment should be reversed and judgment of nonsuit ordered.

      T. B. Barnaby, for plaintiff, respondent.
    I. The pleadings substantially admit the plaintiff’s right, under the agreement, to use the front portion of the party wall, as well as the interior portions of it for the purposes and uses of a party wall.
    This wall so to be built, beginning at the avenue line and running back 50 feet, just the depth of both houses, is necessarily a party wall to the outside front and rear line; whereas the defendant mistakenly supposes, by his theory, that the party wall stops on the inside of the front and rear walls.
    II. The Beferee has found in favor of the plaintiff, upon all the facts necessary for the recovery of the damages, as reported by him.
    III. The defendant’s exceptions to the Beferee’s report are too general, being to the whole and not to any specified part. (Willard v. Warren, 17 Wend., 257; Whiteside v. Jackson, 1 Wend., 418.)
    IV. The Beferee’s conclusions of law are correct, as stated in his report. 1st. The plaintiff had a right to the use of the front portion of the party wall, to the depth at least of four inches, so as to rest his front wall upon it in the manner usual in erecting buildings, (a.) The natural meaning of the first part of this covenant is not narrowed down or restricted by the clause as to beams and chimney backs. The copulative conjunction forbids that view. If restricted at all, the restriction is confined to the question of how deep the beams and chimney backs may be inserted.
    The last clause is general: “ The said wall to be a party wall.” It applies to the whole extent of the wall, fifty feet deep from front to rear, and this necessarily includes the part to which plaintiff’s front should have been attached. It is meaningless Unless the wall is to be a party wall in the broadest sense.
    The entire scope and evident intent of the whole agreement, together with the deed, give the same construction.
    Whatever may be fairly implied from the terms or language of the instrument, is in judgment of law contained in the instrument. (Rogers v. Kneeland, 10 Wend., 218. As to the rules of construction,- see Wilson v. Troup, 2 Cowen, 195 ; Bull v. Follett, 5 Cowen, 170; Potter v. Bacon, 2 Wend., 583; Willard v. Tillman, 2 Hill, 274.)
    By this agreement and deed the plaintiff acquired more than a mere license to insert beams and chimney backs; he acquired an easement in the wall as long as it shall stand, founded in positive grant, and assignable. (Webster v. Stevens, 5 Duer, 553; 3 Kent, 452; Miller v. Platt, 5 Duer, 277; 4 Id., 53.)
    When there is Any doubt what construction to give to the language of a contract, the words and covenants are to be construed most strongly against the grantor. (3 Comst., 256; 3 Johns., 387.)

      (b.)' The very necessities of the case, and the safety, convenience, comfort and beauty of a building require this construction, or otherwise the plaintiff must have foolishly agreed to have no wall against which his front should be secured.
    (c.) The building or fire law, which is presumed to have been in the contemplation of the parties, necessarily presupposes that in every building the front wall and side wall shall lap over each other, making a sharp corner, and requires in addition that the front be secured to the party wall, either by building or interlocking the brick work together, or by tying iron anchors'across the full width of the party wall into the middlé portion of the front wall, and these anchors not to be more than six feet apart. (Laws of 1860, 905, ch. 470.)

      (d.) The prevailing custom, as proved and found by the Referee, admits of- no other mode of erecting a front wall.
    (e.) The acts of the defendant, permitting the rear wall of plaintiff’s house to be built into the party wall, are consistent only with this construction. If the rear, why not the front also? (French v. Carhart, 1 Comst., 96; Giles v. Comstock, 4 Id., 270.)
    2. This being so, the Referee finds, as matter of law, that rightly defendant is chargeable with the breach alleged. (Voorhies. v. Anthon,.5 Duer, 182.)
    3. His finding, as to damages, was correct. (Derwint v. Wiltsie, 9 Wend., 325; Freeman v. Clute, 3 Barb., 426; Griffin v. Colver, 16 N. Y. R., 489; Sedg. on Dam., 71, 98, 112; Kane v. Sanger, 14 Johns., 89; Giles v. O’Toole, 4 Barb., 261.)
    Where, as in this case, the defendant has maliciously or wantonly violated his contract, or has done so under aggravated circumstances, the damages may be increased. (Sedg. on Dam., 35.)
    The Court will exercise the power of awarding a new trial very cautiously when the error relates only to the amount of damages. (Krom v. Schoonmaker, 3 Barb. S. C. R., 647.)
    V. The Court will not presume error in law or fact, not apparent on the report. (Rule 13 of the Superior Court.)
    VI. The Referee has not erred in ruling upon the admission of testimony.
   Robertson, J.

If the case stated in the complaint had been made out in evidence, the plaintiff would have established a complete cause of action; but the deed to the plaintiff, on being produced, is found to contain no such covenant as is stated in that pleading. It simply reserved whatever rights had been acquired under the covenants contained in the instrument of September previous, relating to the party wall therein mentioned, and the right to use the same, and continues their obligatory force. 'From that September instrument alone, th<| plaintiff derives his right to sue. The action is framed upon a supposed breach of some covenant, and the Referee has reported as matter of law that the defendant is chargeable with the breach of the contract so made by him, in preventing the use of his front wall by the plaintiff, and that the damages from such breach amount to one thousand dollars. This renders it necessary to examine what such covenants are: In the first place, there is no such covenant in the September agreement as to permit the plaintiff to use the party wall at all; there is one, to grant an easement in the premises on which it was to stand and render them the servient tenement, while the plaintiff’s lot was to be the dominant one. It was an executory contract to convey a right, not a mere covenant that such right might be exercised. Until that covenant was specifically performed, no right arose to use any part of the wall. It is true such instrument purported actually to grant such right, but the plaintiff had not then acquired the title to the land to which it was to become appurtenant. (Gale & W. Law of Easement, 5; Wolfe v. Frost, 4 Sandf. Oh., 72.) An instrument in the form of a covenant has been held to be a grant, (Barrow v. Richard, 8 Paige, 351; Birdsall v. Tiemann, 12 How. Pr. R., 551; Keteltas v. Penfold, 4 E. D. Smith, 122;) but I am not aware of any decision holding the converse. The agreement for the grant of the easement was substantially a part of the contract for the conveyance of the land, and should have been performed along with it. The easement would thus have been created, (Webster v. Stevens, 5 Duer, 553; Miller v. Platt, Id., 277;) and the plaintiff’s action could only have been for a disturbance of a vested right, not for violating a covenant. ■ Possibly, however, the plaintiff may have a right to unite an action for specific performance with one for injury done to the rights which would have been his, if the contract had been performed originally, on the principle that equity will consider as done what ought to have been done. This action might, therefore, be maintainable on proper pleadings, which renders it necessary to examine the evidence and findings in this case.

Two things are observable as apparent on the face of the instrument of September, 1860; one is entire silence respecting the materials, structure or dimensions of the wall to be erected by the defendant, according to its terms, except its length and height, and, perhaps, four inches of thickness. Another is, that the easement was to be confined to that wall when erected, and cease with its existence. Had the defendant not built any wall, it would have been difficult to estimate what damages, under a contract so vague, the plaintiff would have sustained. Can he now recover damages to be measured by the character of the wall the defendant has actually put up, when he might have preferred not to have used such a wall as the defendant might have erected so as to be within the terms of the contract? Suppose the defendant had put up a wall twice the thickness of the present one, could the plaintiff have recovered damages commensurate with the increased stability which a connection of his front wall with such a wall would have given to his building ? Yet part of the evidence in this case was given to show the advantage to the plaintiff of tying the two walls together, in the stability of his house, which, of course, entered into the consideration of damages. Again, nothing is said in the agreement of the kind of house the plaintiff was to build. Was he at liberty to build a palace or any other costly building, and claim damages for injury to such a building by the defendant’s refusal to allow him the front of his for a support ? Yet the evidence was directed to the injury to the particular building; some of the witnesses testified, that the kind of connection of the walls desired by the plaintiff was only proper in case of a store, and estimates were made of losses of rent and the like, by reason of the appearance of the building in such case.

Again, the damages for breach of covenant, for not permitting the use of a wall, would be recoverable, but once.

The estimate of the whole future injury must be then made. For disturbance of an easement the injury is continuous, and each successive act of hindrance is a subject of suit. (Blunt v. McCormick, 3 Den., 283.) The plaintiff in this case has been clearly awarded damages for injury for all future time, and particularly for that supposed to arise from a necessary and compulsory change in the character of his building.

The defendant had begun to build the wall in question before making the September agreement, and no time was limited therein for commencing its use by the plaintiff. The time of granting the easement being left entirely undetermined by the instrument, was apparently to be determined by the giving the deed or finishing the wall; probably the former, as provision is made for reimbursing the plaintiff for any expense to which he should be put in building, in case the title proved defective. It is therefore a matter of some doubt whether, until the time when the deed should be delivered and the plaintiff thereby acquired the easement, he could exact the use of the wall.

But even if the grant of such easement had been executed before the acts of the (defendant complained of were committed, it is by no means apparent from the face of the instrument of September, that either they or those set forth in the complaint would have been a violation of such easement. That was a right to use the wall in question in the erection of the plaintiff’s building, and for that purpose to insert beams to be kept there forever; such wall to remain a party, wall. The first branch would only imply a temporary use, were it not qualified by allowing the beams to remain. That, however, gives no right beyond the terms of the contract, and unless the lintel course could be construed to be a beam, the plaintiff had no right to insert it in the defendant’s wall.

It is not a matter of judicial cognizance that tying front walls together is a part of the use of a wall as a party wall, if that be part of the plaintiff’s right, and it requires to be established by evidence. It is not in evidence, in tMs case, even how much of the comer of a wall belongs to a front and how much to a side wall when they unite. It must be a matter of practical construction. It would not follow that the plaintiff had a right to insert beams anywhere, because there was no limitation of the place. Unless a lintel course therefore be a beam within the meaning of the contract of September, the first part of the right granted has not been assailed. What the legal rights and burdens of a party wall are, or even its definition, is as yet scarcely settled definitively. The term is commonly applied to a wall, of which, if divided longitudinally, the two parts rest on land belonging to different owners, built solidly of materials not easily divided, or whose parts cannot be taken down without danger to the whole structure. In such c¡ase either party may remove the half on his own land, if it does not injure the other’s half, unless one or other owner has an easement by grant to have his neighbor keep up his half to support his own. (Sherred v. Cisco, 4 Sandf., 480; Eno v. Del Vecchio, 4 Duer, 53; 4 Man. & Gr., 714; 2 Car. & P., 250.) Walls, however, built entirely on one man’s land may acquire by grant the characteristics of party wall’s. (Brondage v. Warner, 2 Hill, 148.) In such cases the rights of the parties must depend exclusively on the character of the grant.

In so large and old a city as Hew York, to designate a wall as a party wall, may possibly, by usage, communicate to it certain attributes derived from the understanding and customs of builders and those dealing in the sale of real estate with buildings erected thereon. But in this case no distinct evidence was given that the term “party ivall” had acquired any peculiar significance beyond its ordinary meaning, although there was an attempt made to prove what, by custom, were the rights of parties interested in a “party wall.” The latter was abandoned in order to prove, by witnesses, under their understanding of the contract whatever that might be, what were the rights of each party under supposed customs. Ho interpretation of the agreement was given to them as a guide; consequently, as might have been expected, their testimony was widely variant. Most were influenced by the consideration that the agreement gave a privilege of inserting beams and chimney backs at the depth of four inches, with which the injury complained of had nothing to do, unless a lintel course was a beam within the meaning of the contract. Some read it as a permission to use the dividing wall in question generally as a party wall in the erection of the plaintiff’s building, although for that purpose it was limited to be used in a particular manner; many reduced the privileges given by the contract to one, compounded of all, to wit, to use the wall as a party wall in erecting the plaintiff’s building, and, as such, to insert beams and chimney backs penetrating to a certain distance; whereas, the two rights are kept separate in the original instrument. Eone testified that, according to any usage or understanding of trade, a right to cut into a part of a front wall which formed the continuation of a side wall, and was common to both where they united, followed the conversion of such side wall into a party wall. Such testimony might have formed an important. part of the case. What was actually received was improper, in allowing the witnesses to determine the legal effect of the agreement, and evidently had strong influence upon the mind* of the Beferee.

The right of the plaintiff to cut into such wall, as affected by custom, is the more important, as the place where it was to be done was not prescribed by the agreement. That his lintel course corresponded with the defendant’s was a mere matter of accident. He might have chosen to make it higher or lower, and he would have had the same right to cut into the brick work as he claimed in regard to the stone work. Indeed, from the testimony of some of the witnesses, the whole of such right would seem to have depended entirely on the kind of building he erected. As it was, the testimony was conflicting as to the right to cut into brick work. This right, too, of cutting into the defendant’s front wall, of course, would have remained as long as the wall stood, and might be enforced at any time. ’

The witnesses on the trial divided on the question whether the right was the same when the ground on which the wall stood, or any part of it, was not conveyed but only a privilege to insert beams given; the weight of testimony being rather that in the latter case no such right existed. But no one undertook to testify how far a grantee might penetrate the wall in case it was merely made a party wall and nothing was said about its thickness. They seem to have assumed it was to be to the depth of one-half the thickness; evidently looking at cases where different parts of the width of -the wall stood on adjoining land of different owners. It should clearly have appeared whether the right of cutting off part of the defendant’s lintel arose from that of inserting beams, or followed the conversion of a wall into a party wall. It is impossible, therefore, from the testimony to discover of which right the defendant’s supposed delinquency was a violation. The Court is at liberty to determine from the evidence only whether it sustains the complaint. The evidence in this case does not sustain the charges, either that the defendant's acts were an obstruction to the use of the wall as a party wall, or that the junction of the plaintiff’s front wall with the front wall of the defendant was a use of the side wall as a party wall. It is true that the evidence tends to establish that such junction was useful to the plaintiff and rendered his building more stable, but unless the defendant agreed he should make it so by that means, it is immaterial.

Much of the evidence was employed in establishing that the mode in which the plaintiff built his house • was the best possible mode of securing it, if he could not fasten his front wall to the adjoining house. This is entirely immaterial. The plaintiff was also permitted to prove, as a measure of damages, the difference of value in his house, in case he had been allowed to use the adjoining front wall of the defendant’^. This I think was erroneous. The damages should certainly be the same to every man on the same covenant. Non constat but the plaintiff built his house to enhance the damages. But if not, it was erroneous to prevent the defendant from proving what it would cost to place the plaintiff’s house in the same condition in which it would have been, had the defendant not interfered with him. The exclusion of the question to the defendant, whether he had ever prevented the plaintiff from tying the walls together, except by prohibiting his cutting out the four inches was clearly erroneous, since it went directly to contradict the testimony of the latter. Ho reason is furnished for its exclusion. Ho objection was made that it was leading and had been answered before, as the plaintiff’s counsel supposes. Evidence had been given to prove other interference by the defendant, and he had a right to deny it under oath. This would be sufficient cause for sending the case to a new trial, but the other reasons of more importance in the admission of testimony, require a re-examination of the cause.

The judgment must therefore be reversed, and a new trial had, with costs to abide the event, the order of reference to be discharged.

White, J.

The agreement and grant of the defendant, upon which this action is brought, and by the terms of which he agreed to build a wall of the depth of fifty feet, and of a height above the sidewalk sufficient for a four story house, on his own lot of land, adjoining the northerly line, of the plaintiff’s lot, and whereby, also, he granted to the plaintiff the right to insert the beams of his (the plaintiff’s) intended building four inches into said wall, and to insert therein two chimney backs to the same depth, and to maintain such beams and chimney backs so long as said wall should stand, covenanting that he would do no act tending to the destruction of said wall, and declaring that said wall should be a party wall between the houses which plaintiff and defendant were respectively about to build on their said two adjoining lots,—is very vague in some particulars, such as the character or description of the plaintiff’s building.to be erected, and of the intended party wall; but still I think, that the instrument is capable of some reasonable construction and enforcement, and that an action might be maintained upon it in a proper case, at the suit of the plaintiff.

Taken in connection with the requirements of existing public law on the subject of the erection of buildings in the Oity of Few York, and the circumstances of place and business, the terms of the defendant’s covenant become sufficiently intelligible. The law requires that a party wall, or any exterior wall of a house in the Oity of Few York, of a height such as a four story house must necessarily be, must not be less than twelve inches in thickness, and it further requires, that the beams shall be inserted to the depth of four inches in .the wall, and that there shall be at least four inches in thickness of brickwork between the ends of the beams inserted in the wall upon each side. Erom these prevailing regulations, it can be properly deduced, that the party wall contracted for in this case, was to be at least twelve inches in thickness. And, as to the character of the plaintiff’s building to be erected, if the construction should be adopted, that the house should be one of a character not exceeding in value the best class or description of buildings erected in the immediate neighborhood mentioned in the contract, it would be a construction of which the defendant could not justly complain, as it would be a reasonable one, and the legal rules applicable in such a case would warrant, that any difficulty arising from ambiguity or absence of express terms, should be solved in a manner the least favorable to him. Such a construction should also be entirely satisfactory to the plaintiff, as it would secure to him indemnity, by furnishing him with a basis as favorable as he could reasonably demand for the calculation of damages, in case any damages should appear to have been sustained.

With respect to the rights acquired by the grantee under the defendant’s deed and covenant, I think, that the term “party wall,” when used in such an instrument, and in its general ordinary signification, means a dividing wall between two houses, to be used equally, for all the purposes of an exterior wall, by both “ partiesthat is, by the respective owners of both houses. This use, in its full, unrestricted sense, embraces not only the use of the interior face or side of the wall, but also such use of it as is necessary to form a complete and perfect junction in an ordinary, good, mechanical manner between it and the other exterior walls of the house.

This, I think, is a correct definition of a “party wall,”' and of the rights which the grant of an unrestricted use of it confers upon the owner of the house of which it forms, or is to form one of the exterior walls; and the right of the grantee of such unrestricted use would be the same whether the wall stood one half upon the land of one owner and one half upon the land of the other, or stood wholly upon the land of the grantor of the unrestricted use. This right can, of course, be restricted or limited by the terms of the instrument granting it; but if no restrictive words are employed, and if the grant to an adjoining owner is in its terms simply a grant of a right to use a wall as a “ party wall,” then his right to its use for the purposes of an exterior wall for his building or erection, is as full and ample as is the right of the grantor to its use and benefits for the purposes of an exterior wall for his building.

Entertaining this view of the agreement of the parties, and of the force and meaning of the word “ party wall,” I am inclined to the opinion that the Beferee, upon the testimony received by him, came to a correct conclusion in this case, upon the question of a violation of contract by the defendant; and if, in every other respect, the proceedings before him were satisfactory, I would not feel disposed to order a new trial, either upon account of this conclusion, or of the amount of damages awarded And in this connection I will say, that the evidence given, by the plaintiff, to show that he had built his house as well as it could have been built while deprived by the defendant of the right to connect his front wall with, or to rest it upon th,e party wall, appears to me to have been properly received; and, on the other side, that the testimony offered by the defendant with the intent to contradict that evidence, was improperly rejected.

As, however, the term “party wall,” and the rights which the owner or grantee of its use acquires by mere force of the employment of that term in a grant or covenant, have never, I believe, been judicially defined, and as a true understanding of them may be materially aided by intelligent and well directed testimony, which does not appear to have been produced upon the trial that has already taken place in this cause, the witnesses on the trial having been left without any authoritative interpretation of the contract by the Beferee, to aid them in the formation of the opinions which they were required to give, and also inasmuch as some testimony offered by the defendant was improperly excluded, especially the testimony of the defendant himself, on the question whether he had prevented the plaintiff from connecting Ms front wall with the party wall,—I fully concur in the propriety of reversing the judgment and ordering a new trial, with costs to abide the event, the order of reference to be discharged if either party desires it; the proceedings upon such new trial to be governed by the principles herein indicated.

Barbour, J.

I concur in the conclusion to which my brethren have arrived, upon the ground that the party wall which the defendant covenanted to erect, was to be used by the plaintiff only to the extent, and in the manner, particularly specified in the agreement; that is, he was to use it for the purpose of inserting the beams of his house to the extent of four inches,, and, also, of inserting two cMmney backs to the same extent. Fo other privilege to use the wall was covered by the covenant; anchors are not named, and are, therefore, excluded. Expressio unius est exclusio alterms. So, for the same reason, as to the right claimed by the plaintiff to lap his front over or upon the wall. The fact, too, it naay also be said, that the defendant covenanted to erect the wall from the easterly side of the avenue, fifty feet in length, is quite inconsistent with the latter claim ; as a perpendicular wall, built upon the line of the street, would leave no space in its front extremity for the insertion of other bricks. He was bound by his covenant to build it flush with the line of the street, and the plaintiff accepted that covenant.

Judgment reversed, and a new trial ordered.


author: By the Court—Barbour, J.

text:
    John A. Van Blarcom et al., Plaintiffs and Respondents, v. The Broadway Bank, Defendants and Appellants.
    The Broadway Bank loaned money to C., for which they received from him a pledge of stocks as collateral security. They also discounted several notes for him, and received from him a draft on a distant place for collection. Before it was known whether the draft was paid or not, he applied to the president of the bank, saying that he must have the proceeds of the draft immediately or must suspend payment; and the president asking for collateral security, he answered, The bank holds all my stocks, and they are security for all my discounts and this draft,” to which the president replied, “If that is so the bank will put the proceeds of this draft to your credit,” which was thereupon done.

      Meld, that this was a pledge in prcesmti of the stocks, as security for all the discounts which had been made for 0., as well as for the draft in question. (Robertson, J., dissented.)
    (Before Robertson, White and Barbour, J. J.)
    Heard, June 13;
    decided, October 11, 1862.
    Appeal from a judgment entered upon the report of Hamilton W. Eobinson, Esq., to whom the issues in the cause were referred for trial.
    The plaintiffs, John A. Van Blarcom and Oliver J. Hayes, became assignees of certain stocks of one Christopher Ohamplin, which, at the time of the assignment, were under pledge to the defendants as collateral security for liabilities of said Ohamplin to the defendants, and were in their possession. The defendants sold these stocks, with the knowledge and assent of the plaintiffs, and recognizing their title to the same, and the plaintiffs brought this action for the surplus of the proceeds of the sale, after satisfying, the debts of Champlin for which they had been pledged. The defendants admitted the sum of $152.13 to be due the plaintiffs, and the plaintiffs claimed the sum of $10,175.46 as due, besides' interest. The question in dispute, was, as to what liabilities of Champlin were covered by the pledge of these collaterals. The Beferee found there was due from the defendant to the plaintiffs the sum of $7,100.87, with interest, and judgment was entered accordingly. The defendants appealed to the Court at General Term. <•

      David E. Wheeler, for defendants, (appellants.)
    Cited, as to the sufficiency of the pledge, as a security for the discounts as well as for the draft, 2 R. S., 136, § 3; Code, Voorhies’ ed., note to § 111; Oneida Bank v. Ontario Bank, (21 N. Y. R., 490;) Dickenson v. Phillips (1 Barb. S. C. R., 454, 458;) Bradley v. Root, (5 Paige, 632, 641;) Artcher v. Zeh, (5 Hill, 200;) Willard Eq., 463.

      William M. Evarts, for plaintiffs, (respondents.)
    Urged that the evidence sustained the Beferee’s finding on the question of pledge, and, moreover, there being a conflict of testimony, the report should not be disturbed.
   By the Court—Barbour, J.

The case shows that prior to the 27th of February, the Broadway Bank had' loaned to Champlin, the plaintiffs’ assignor, moneys at several times, for which the bank then held Ohamplin’s stock notes, payable on demand, and secured by sundry shares of stock named in the notes, as well as another note of Champlin for $2,750- payable on demand, secured, collaterally, by a three months’ note for $3,000, signed by Boberton & Dustan; and the bank had also discounted for Champlin, and then held his promissory note for $3,000 payable three months’ from date and not then due, which last mentioned note and the said stocks were then in possession of the bank. Ohamplin had also, a few days previously, deposited with the bank his draft for $3,000, payable ten days after sight, drawn by him upon 0. E. D. Wood, of Paducah, Kentucky, to be sent by the bank to Paducah for acceptance.

On the day above mentioned, Ohamplin called at the bank and then had a conversation with its president, who, upon his examination as a witness in this action, stated the details of the interview and conversation, as follows:

On the 27th of February, 1857, he ” (Ohamplin) “ called. “ at the bank and wanted to know if we had heard from “ the draft. I told him no, we had not. He then said he “ must have the proceeds of the draft that day, or he must “goto protest for the first time. I told him the bank could “ not doit, unless the hank had collateral seeurity, as it was “ one name paper. Ohamplin then said: The hank holds “ all my stocks, and they are security for all my discounts and this drafV I said if that was so, the bank would put “ the’proceeds of this draft to his credit; and we did so.”

I am unable to resist the conclusion that this declaration of Ohamplin, followed as it was, by the discounting of his draft by the officer of the bank, to whom it was addressed, was a pledge, in prcesenti, of the stocks then held by the bank, for the purposes expressed in such declaration; that is, as security for all the discounts which had been made-for Ohamplin as well as for that draft.

Let us look at the circumstances surrounding the transaction : Ohamplin, upon the brink of ruin, as he supposed, and with the greatest calamity pending over him that can -fall upon the head of an honorable merchant, the public protest of his paper for non-payment, and the consequent .destruction of Ms reputation and credit, was precisely in the condition best calculated, if not most certain, to induce Mm to make that or any other pledge of his stocks, necessary to avert the impending evil. Oan it be doubted, then, that when he was informed by the president that his draft, .could not be- discounted, for the reason that it was only one name paper, or, in other words, that it was not .sufficiently secured, he designed, by his answer, to jBedge all Ms stocks, believing, as he told the president he did, that nothing but such discount would save him from protest ? If there is any ambiguity in the words used, it is proper to consider this as a means of ascertaining the probable intention of the parties. But, considering that the bank was already in possession of the stocks as security for some indebtedness of Champlin’s, I see no ambiguity in the language.

Very little is necessary to constitute a pledge. It is only essential that the property be, or be placed by the owner, in the hands of the creditor or trustee, with an intention, on the part of both parties, that it shall be retained as security for a certain debt or claim. In this case, the stocks were already held by the bank. Suppose they had not been, but that, when Champlin said, “ the bank holds all my stocks, and they are security for all my discounts and tMs draft,” he had, at the same ' time, handed the stocks to the president, would that have made the case any stronger ? And can any one doubt, that, in the case opposed, the intention of Champlin to pledge the stocks, at that time, and in that manner would have been plain and manifest ?

The declaration of Champlin was, at any rate, an admission that the stocks were then held by the bank as security for his discounts, an admission which Ms assignee is now estopped to deny. But it was not an admission that they were held as security, also, for the draft, for, at that time, the draft had not been discounted. And yet, Champlin told the president that all the stocks were held by the bank as security for all the discounts, and also for the draft; showing, conclusively, that he designed not merely to admit that they were already held as security, but to repledge them for the draft, as well as for the preexisting debt; and to this the president assented, and thereupon, and clearly in consequence of such repledging, discounted the paper.

Again, the declaration touching the discounts which had been made, and the draft, of which Ohamplin was still the owner, was in one sentence, covering both as much as either; how, then, can it be said that the stocks were pledged for the draft, at that time, and not for the discounts ?

Regretting, as I do, to be compelled to differ from the conclusion to which the very able lawyer, before whom, as Referee, the cause was tried, has arrived, to the effect that the bank is not entitled to retain the stock as security for all discounts, which, at the time of this conversation, had been made to Ohamplin by the bank, my mind is forced to the conclusion that the judgment entered upon the report of the Referee should be reversed, and a new trial awarded.

Robertson, J., wrote a dissenting opinion, he holding that upon a view of all the evidence bearing upon the transaction in question, the additional pledge was only as security for the draft, and not for previous discounts.

Judgment reversed and new trial ordered.


author: By the Court—Monell, J.

text:
    George Williams, Plaintiff and Respondent, v. John O’Keefe et al., Defendants and Appellants.
    1. In an action brought to recover damages from the defendants for negligently running over the plaintiff in the street, it appeared that the plaintiff, whéi crossing at a street corner, was knocked down .by defendants’ vehicle; which was driven at a rapid rate around the corner., Hélct, that an ordinance of the corporation, forbidding driving faster than a walk in going around the corner of any street, was admissible in evidence, not as furnishing proof of negligence on the part of defendants, but as tending to relieve the plaintiff from the imputation of negligence on his part.
    2. In such actions, negligence, whether on the part of the plaintiff or the defendant, is a question of fact for the Jury to determine.
    3. Unless the proof of negligence on the part of the plaintiff is so strong that the Court would set aside a verdict in his favor as being clearly against the weight of evidence, it is not proper to take 'that question from the Jury, by granting a nonsuit at the trial.
    (Before Bosworth, Ch. J., and Moncrief, Robertson, Barbour and Monell, J. J.)
    Heard, May 31;

    decided, October 18, 1862.

      Appeal from a judgment entered on a verdict recovered on a trial before Mr. Justice Mohorief and a Jury, on the 17th of March, 1862.
    The action was brought by George Williams against John O’Keefe and John J. Duryea, proprietors of a stage line in this city, to recover damages for alleged negligence in running against and injuring the plaintiff, with one of their stages.
    On the 23d Xov., 1859, in the evening, plaintiff was passing up the Bowery. When crossing Second street, one of the defendants’ stages, (whose route lay through the Bowery and Second street,) running up, and being driven at a rapid rate, turned into Second street. The pole struck the plaintiff, knocked him down, broke his arm and injured his neck. The plaintiff testified that the stage was going “furious, pretty hard—a hard trot—going fast.” The plaintiff offered in evidence an ordinance of the corporation, declaring it to be unlawful to drive any vehicle in the streets of the city, faster than six miles an hour, or faster than upon a walk in going around the corner of any street. This was objected to by the defendants. The objection was overruled and the defendants excepted. The defendants moved to dismiss the complaint, on the ground, substantially, that the accident was occasioned by the plaintiff’s negligence, or that his own negligence contributed to produce the injuries. The motion was denied, and the defendants excepted. Considerable testimony was given by the defendants, designed to contradict the plaintiff’s evidence. The Jury rendered a verdict in favor of the plaintiff for $1,500.
    A motion for a new trial was denied at Special Term, and this appeal is as well from the order denying the motion as from the judgment.

      Geo. R. Thompson, for defendants, appellants.

      S. C. H. Bailey, for plaintiff, respondent.
   By the Court—Monell, J.

There was no valid objection to proving the corporation ordinance, regulating the rate of speed of vehicles in the city. The objection to it was, that no infraction of it having been shown, it was immaterial. It does not appear for what purpose it was offered, and although it furnished no evidence of negligence in fact on the part of the defendants, (Brown v. Buffalo & State Line R. R. Co., 22 N. Y. R., 191,) yet it seems to me it was proper and competent evidence for another purpose; namely, as tending to prove, in connection with other testimony, that there was no negligence on the part of the plaintiff. The ordinance was one of the public laws of the city, and as such was presumed to have been known to all citizens. This knowledge was calculated to regulate in a greater or less degree, the care which any one traveling upon the streets would exercise. The presumption is, that the ordinance would be observed,—that in turning around a corner from one street into another, necessarily passing over the cross-walk, the pace of the horses would be slackened to a walk. Surely then, a foot passenger knowing that such an ordinance existed, and believing that it would be observed, would not be called upon to exercise that care and prudence which he would exercise if there was no restriction upon the rate of travel. So that if he had reason to believe the vehicle would hold up to a walk as it approached the sidewalk, he would and might properly and with safety act very differently than if he believed the vehicle would continue on across the cross-walk at a rapid rate. The evidence, in my judgment, was therefore proper as tending to relieve the plaintiff from the imputation of negligence on his part, and could well be considered by the Jury in connection with other evidence for that purpose.

As I understand the law, as now settled by the Oourt of last resort in this State, negligence is a question of fact for the Jury to determine, whether it be negligence on the part of either party. The plaintiff must be free from fault, but he need not show it affirmatively in the first instance. He must be able to satisfy the Jury, from all the facts and circumstances in the case, that he has not, by his own neglect, contributed in any degree to the injury. (Johnson v. The Hudson R. R. Co., 20 N. Y. R., 65.) Denio, J., in this case, says, (p. 69,) after stating the general rule, “ the plaintiff’s case, when presented to the Jury, must not be defective on that point any more than upon that of the defendants’ negligence.” He further says “it is not a rule of law of universal application that the plaintiff must prove affirmatively that his own conduct on the occasion of the injury was cautious and prudent. The onus prolxmdi in this, as in most other cases, depends upon the position of the affair as it stands upon the undisputed facts.” And, again, “the culpability of the defendant must be affirmatively proved before the case can go to the Jury, but the absence of any fault on the part of the plaintiff may be inferred from circumstances.”

Accordingly, it seems to be now well settled that unless the proof of negligence on the part of the plaintiff is so strong that the Court would set aside a verdict in his favor as being clearly against the weight of evidence, it is not proper to take that question from the Jury. Independently of this view, I cannot discover any evidence in the case, up to the time the plaintiff rested, which can properly impute any negligence to him.

The motion to dismiss the complaint was properly overruled.

The relation given by the defendants’ witnesses of the accident as seen by them, if I could believe that it referred to the same accident testified to by the plaintiff, would certainly excite the suspicion that the Jury had not dealt fairly between the parties. But without entering upon an analysis of the testimony, it is sufficient that I believe the defendants’ witnesses saw another and different accident, occurring possibly on the same evening, at about the same place and near the same hour. The plaintiff’s relation of the accident, and of its consequences, is corroborated by several witnesses, especially in that he did not leave his house for nine or ten days after he received the injury. The plaintiff’s and defendants’ witnesses stood confronting each other, and the Jury who tried the case were best able to determine whose was the correct version of the affair. It is enough for us that we cannot say their verdict is clearly against the weight of the evidence.

The case seems to have been fairly put to the Jury. The Judge charged as requested by the defendants’ counsel, that there could be no recovery by the plaintiff if the Jury believed that the accident was caused by his negligence, or that his negligence in any degree contributed to the accident. The Jury have found against the defendants upon all the questions, and we see no reason for disturbing their verdict. * ' . •

The judgment must be affirmed.