author: By the Court.—Freedman, J.

text:
    WILLIAM MOORES, Respondent, v. CHARLES LEHMAN, Impleaded, &c., Appellant.

      Ejectment.—Pleading.—Requisites of complaint.

    Where a complaint in an action of ejectment does not set forth that defendant unlawfully withholds, or that he entered without the consent of the plaintiff, or in anywise wrongfully, or that plaintiff is entitled to the immediate possession of the premises, and does not contain any equivalent allegation, it will be held bad on demurrer.
    It will not be presumed that defendant, in such case, is a wrongdoer. The presumption is that one in possession is lawfully in possession.
    Except in matters of form, it is still the rule to construe pleadings most strongly against the pleader.
    Before Sedgwick,. Ch. J., and Freedman, J.

      Decided June 5, 1885.

      Appeal by defendant from judgment entered against him upon a demurrer and from the order overruling the demurrer.
    The facts appear in the opinion.

      John Townshend, for appellant:
    I. The form prescribed by the revised statutes, when in force, indicates very clearly what are the facts which still constitute a cause of action. (1) Plaintiff in possession. (2) While plaintiff in possession defendant entered. (3) And unlawfully withholds possession. The last requirement is not met by the complaint. The presumption is that one in possession is-lawfully in possession (Hill v. Draper, 10 Barb. 454; Maltoner v. Dominick, 4 Ib. 466). The court will not presume in favor of a plaintiff anything he has not alleged (Cruger v. Hudson R. R. Co., 12 N. Y. 190 ; Malone v. Sherman, 94 Super. Ct. 530 ; Parkhurst v. Wolf, 41 Ib. 320 ; People v. Padner, 10 Abb. N. C. 462). A pleading cannot be sustained upon implications unless they necessarily follow from what has been alleged (Magauran v. Tiffany, 62 How. Pr. 251). Except in matters of form “ it is still the rule to construe doubtful pleadings most strongly against the pleader” . . . “when a pleading is susceptible of two meanings that shall be taken which is most unfavorable to the pleader ” (Clark v. Dillon, 31 Alb. L. J. 155, Nov., 1884). Courts ought not to encourage loose or ambiguous pleading (Cook v. Warren, 88 N. Y. 40).
    II. To recover real estate, it is necessary for the plaintiff to prove that he is the owner of the property, and that the defendant withholds from him the possession without right (Sanders v. Levy, 16 How. Pr. 312). The possession must be unlawfully withheld from plaintiff, and that fact must affirmatively appear upon the face of the complaint (Taylor v. Crane, 15 How. Pr. 359 ; Moak’s Sandford Pldgs. 326 ; Sedgwick & Wait, Trial to Land, § 433; 5 Wait's Practice, 839 ; People v. Mayor, &c., 28 Barb. 248).

      Robert L. Wensley, for respondent:
    I. It is contended by defendant’s counsel, that from all that appears in the complaint, the defendant, Lehman, may be lawfully in possession. If the tenancy of either of the defendants was lawful, as against the plaintiff, then the possession of the defendant would be the possession of the plaintiff, and in a legal sense he could not be said to withhold the possession from plaintiff.
    II. The mere use of the word “ unlawfully ” in the complaint for which defendant contends, would be simply the statement of plaintiff’s conclusion as to the character of the occupancy, and would not be the statement of a fact, and could therefore have no influence for or against the sufficiency of the complaint, and as a matter of good pleading, ought not to be inserted (Russell v. Clapp, 1 Barb. 483 ; Ensign v. Sherman, 14 How. 442), and if inserted the demurrer would not admit its truth (Kinnier v. Kinnier, 45 N. Y. 539).
    III. The statement of the single fact that plaintiff is the owner in fee simple absolute of the premises is sufficient to show that he is entitled to the possession of the land until the defendant shows a right of possession in himself. Plaintiff in his complaint is not required to anticipate every defense to his action, nor to negative every state of facts under which defendants might be entitled to the possession of the premises against the owner of the fee (Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614; Cohen v. Continental Life Ins. Co., 69 Ib. 304). Nor to state conclusions which are to be implied from the facts stated (Case v. Carroll, 35 N. Y. 391). But only to state facts which, if proved, will entitle him to judgment (Russell v. Clapp, 1 Barb. 483).
   By the Court.—Freedman, J.

This action is one in ejectment. The complaint alleges that the plaintiff is seized in fee simple absolute of certain premises particularly described therein, and which are located in the city of New York ; that the defendant, Lehman, was and is the occupant of the said premises, and that he.so occupies the same under a lease of tenancy from, or by agreement with, and consent of defendant, Townshend ; and that the defendant, Townshend, is in possession of the premises, and withholds possession thereof from the plaintiff, although plaintiff has demanded from said defendant the delivery to him of such possession of said premises ; to plaintiff’s damage, as is alleged, in the sum of $1,000. The judgment demanded is the immediate possession of the premises, and $1,000 damages, for the withholding of such possession.

The defendant Lehman demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action against him.

•The complaint in an action of ejectment is now gov-. erned by the rules which apply to complaints in all other actions, and, amongst other things, such a complaint must state facts sufficient to constitute a cause of action.

In the case at bar, the complaint does not allege either that the defendants unlawfully withhold, or that the defendants entered without the consent of the plaintiff, or in any wise wrongfully, nor that plaintiff is entitled to the immediate possession of the premises. Without some one of these allegations, or some equivalent allegation, it will not be presumed that the defendants are wrongdoers. The presumption is that one in possession is lawfully in possession (Hill v. Draper, 10 Barb. 454).

Except in matters of form, it is still the rule to construe doubtful pleadings most strongly against the pleader, and when a pleading is susceptible of two meanings, that is taken which is most unfavorable to the pleader (Clark v. Dillon, 97 N. Y. 370).

For all that appears, the defendant Townshend may be in possession' under a lease from the plaintiff which has not yet expired, and hence the implication does not follow from what has been alleged, that he unlawfully withholds. The court at special term therefore erred in overruling the demurrer.

The judgment and order should be reversed with costs, and the defendant Lehman should have judgment upon the demurrer with costs, with leave, however, to the plaintiff to amend his complaint upon payment of both bills of costs.

Sedgwick, Oh. J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    CHANDLER H. LOOMIS v. JOSEPH B. HOYT, ET AL.

      Special partnership—statutory requirements as to—when liable as general partners.—Pleading— When complaint need not allege special part/ner-

    An affidavit that the special capital of a limited partnership has been actually and in good faith paid in, and in cash, is false, and no limited partnership is formed, and ail the parties are liable as general partners, where it appears that the special partners drew their checks for the amount of the special capital, and the same were deposited to the credit of the new firm, which thereupon drew and delivered its checks for like amounts in favor of said special partners; it further appearing that these checks were given to pay money due them from a former partnership which the same parties had endeavored to form, but failed, because no affidavit of payment of special capital had ever been made or filed.
    Where the assumed limited partnership carries on the business of commission merchants in New York county, and such is stated to be its business in the certificate there filed, and it is also engaged in the business of tanning leather in another county, no copy of the above certificate being filed in said county, no limited partnership is formed, and the parties are liable as general partners.
    In an action in which it is sought to charge all the parties assuming to form a special partnership as general partners, by reason of their failure to comply with the statutory requirements, .the complaint need not be in terms founded on the statute, and an allegation therein of general partnership is sufficient, and admits proof of failure to comply with such requirements, though the answer be a general denial.
    Before Sedgwick, Oh, J., and Freedman, J.

      Decided June 19, 1885.

      Action on a promissory note. At the trial, a verdict was directed in favor of the plaintiff, and defendants’ exceptions were ordered to be heard in the first instance at the general term.
    The facts appear in the opinion.

      Clarence W. Francis, and Hamilton Odell, for plaintiff:
    I. Upon the proofs, a plain fraud was perpetrated in the formation of this alleged special partnership. Every cent contributed by the special partners as capital, was immediately withdrawn by them, not on account of any indebtedness due to them from the partnership, but in payment of indebtedness said to be due to them from an old general partnership which, for several years prior thereto, had existed between these defendants.
    II. The regular and proper course was for the plaintiff to charge defendants in the complaint as general partners (Stone v. De Puga, 4 Sand. 681; Sharpe v. Hutchinson, 49 Super. Ct. 50). A cause of action is not created dr given against a special partner by the statute, by the making and filing of a false affidavit, but a strict compliance with the provisions of the statute by those who seek to avail of its benefits, is a condition precedent to any restriction upon the liability for the firm debts of the so-called special partners. Therefore, the action should be in form against all the partners as general partners, and the restricted liability under the statute should be matter of defense-(Haviland v. Chace, 39 Barb. 283 ; Bell v. Merrifield, 28 Hun, 222 ; R. S. title 1, of Limited Partnership, § 8). The Pennsylvania statute provides (in the very language of our own) : “If auy false statement be made in such certificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof as general partners.” See Andrews v. Schote (10 Barr, 51); Vandike v. Rosskam (67 Pa. 333). The Massachusetts statute provides that—“If a false statement shall be made in such certificate, all the parties shall be liable as general partners.” See Pierce v. Bryant (5 Allen, 91).
    Durant v. Abendroth (97 N. Y. 132), is distinguishable from this case. In his discussion of the questions involved there, Judge Rapallo uses this language, which, it is claimed, sustains the objection taken by the defendants in this case : “Notwithstanding the erroneous statement in the affidavit as to the payment of the capital, the partnership was in form a limited partnership, and subject to all the rules applicable to such partnerships. If it had undertaken to make an assignment with preferences, such assignment could not have been sustained on the ground of the violation of the statute. That violation could be taken advantage of only by creditors, and its consequence simply was to give them recourse against the special partner personally, as if he had been a general partner. ” The partnership, the judge said, was a limited partnership in form. So it was, but not in fact. Having attempted to- avail themselves of the privileges of the statute, and having held themselves out to all the world as a special partnership, and induced the public to deal with them in that character, the defendants were estopped to deny that such a partnership existed ; they could not. make an assignment giving preferences, after having-obtained credit on the assurance that the partnership, assets were secured by the statute to an equal distribution ' among all the creditors. That is the point of the decision,, and it goes no further.
    II. The timited partnership was not formed, and the defendants were hable to be sued as general partners, because no transcript of the certificate, etc., was filed in the office of the clerk of the county of Cattaraugus, where George Palen & Go. carried on a portion of their business (,Statute as to Limited Partnerships, § 6). The certificate in this case declares that “ the general nature of the business (of George Palen & Co.), to be transacted, is the hide, leather, oil and commission business in the city of New York.” The testimony of George Palen is that the firm from its beginning was also engaged in the business of tanning leather at Limestone, in the county of Cattaraugus, and at Elmira, in the county of Chemung. The certificate of the clerk of Cattaraugus county shows {Code, § 921), that no transcript of the certificate of formation of this limited partnership was ever filed or recorded in his office. Therefore, such partnership cannot “be deemed to have been formed, ” but George Palen & Co. were a general partnership for all purposes. There is as much reason why the general nature of the contemplated business of a limited partnership should be truthfully announced as there is why the amount of its special capital should be. Both enter into the question of the amount of credit to which the partnership is entitled. Parties dealing with the firm and giving it credit, or asked to give it credit, are entitled to know to what hazards the capital of the concern is exposed; and it is very plain that there is a wide difference in the matter of risk, between manufacturing and vending. A man who claim's a restricted liability under a statute must keep within it. He cannot publish that he is going to transact a particular business in a particular plane, and then branch out into a different business in a different place, and still claim exemption from a general liability.

      Arnoux, Ritch & Woodford, William H. Arnoux, of counsel for defendants:
    I.. If the pleader, when drawing his complaint, intended to prove that a special partnership had been formed, and that the special partner had become liable as a general partner by reason of any act that made him so liable, he failed to comply with the provisions of the Code requiring the complaint to state the facts upon which he expected to recover. In Sharp v. Hutchinson (49 Super. Ct. 50), the court, in deciding the case, prefaced its ruling with the following observations and questions which are applicable to the case at bar: “If, in this action, the defendant had not in the answer set up the existence of the limited partnership, it might have perhaps been necessary to determine whether an allegation of general partnership is supported by proof that the certificate or affidavit, filed under the statute, to form a limited partnership, was false. One question would be: does the negativing the assertions of the certificate or affidavit tend to show that such facts as are essential to co-partnership had an existence ? Or, does it tend only to show the liability of a partner under the statute ? Another question would be: if it tend to show only the latter, must not the special facts, which, under the statute, create the liability, be pleaded ?”
    Stone v. De Puga (4 Sand. 681), is not an authority which can avail the plaintiff in this case. It was decided under the law as it stood prior to the amendment of 1851, and holds and was bound to hold, under that system of practice, that the various acts which it was claimed would have made De Puga, under the statute, liable as a general partner must be pleaded, but that the pleading, where it was to be inserted, was the reply instead of the complaint. Under the law as it stood in 1851, it may have been enough to allege some of the facts in the- reply, but under the law as it has been since 1852, the complaint must state every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer. The Code requires of a plaintiff that his complaint shall contain a plain and concise statement of the facts constituting each cause of action. The plaintiff was permitted to prove each and every fact contained in his complaint. That was all he could be permitted to prove against defendant’s objection (Allen v. Patterson, 7 N. Y. 478 ; Mann v. Morewood, 5 Sand. 557 ; Lienan v. Lincoln, 2 Duer, 670 ; Adams v. Mayor, 4 Ib. 295 ; Hilsen v. Tibby, 44 Super. Ct. 12 ; Moak's Van Santvoort's Pleading, 163 ; Cook v. Warren, 88 N. Y. 40 ; Wright v. Hooker, 10 Ib. 59 ; Hudson v. Swan, 83 Ib. 552 ; Southwick v. First National Bank, 84 Ib. 428 ; Fuller v. Lewis, 3 Abb. Pr. 383 ; Sandford v. Drew, 3 Duer, 632).

      But whether such allegations should be pleaded in the complaint, as these authorities hold, or whether in the reply, as laid down in Stone v. De Puga, is wholly immaterial. The essential fact in all cases being that somewhere, and at some time, the allegations necessary to allow the admission of the requisite proof must be pleaded. Plere they were not pleaded, and therefore could not be offered in evidence.
    Who could imagine what court could learn from these ■ pleadings, that the plaintiff intended to try a question relating to a special partnership ? Nay, more, who can tell what question on that subject the court did try % Was it a return of the moneys contributed ? Was it a failure to file a certificate in the county where defendants had a tannery ? It is possible to raise numberless questions on this issue if allowed.
    Even if the defendants were pro hao vice, general partners, such partnership liability, under the circumstances of this case, arose, not out of a contract between the partners, but out of a statutory liability, and therefore the allegation of partnership was not a statement of fact, but a conclusion of law, and the facts leading to that conclusion should have been pleaded. The evidence offered was objected to for want of such plea. Plaintiff had an opportunity to amend his plea, and he refused.
    III. Whether the complaint be sufficient or otherwise, the evidence fails to establish the allegation that the defendants are partners, and therefore as such jointly liable to-the plaintiff on the promissory note sued on.
    The complaint sgts forth that the defendants were co-partners—that is, general partners ; the ■ proof offered tended to show that by reason of defect in the formation of the special partnership, the defendant was liable as a general partner. The statute draws a distinction between the failure to take the formal steps to form- a limited partnership, and the falsity of the allegations in such formal proceedings. In the former case, no limited part-, nership is formed, and the parties' are general'partners. In the latter case, a limited partnership to all the intents and purposes is formed, except as to exemption from liability for debts of the firm. Thus, in the case of Durant v. Abendroth (91N. Y. 132), the court has clearly defined the limit to the violation of the provisions of the statute. Applying that decision to this case, it is apparent that no amount of proof of erroneous statement in the affidavit as to any of the facts therein contained could make the partnership in question a general partnership, or enable it to make a general assignment with preferences. If this position is a correct, logical deduction from the statute, and upon the decision above cited, then the evidence received by the court was not sufficient to fasten upon the defendant the liability of a general partner.
   By the Court.—Freedman, J.

The action is based on a promissory note, dated October 30, 1882, and made and indorsed by the firm of George Palen & Co., and the complaint charges the defendants with having been the partners who composed that firm. The several answers of the defendants served, either consisted of, or amounted to, a general denial. At the trial, the defendants offered no evidence, and rested their rights upon plaintiff’s case.

It appeared that on December 31, 1881, the several defendants executed a certificate, whereby they assumed to form a limited partnership. The defendants Knight and George E. Palen were named as general partners. The defendants Hoyt, Ladew, Fayerweather and Jane E. Palen were named as special partners. Each special partner was to contribute the sum of $50,000 towards the capital of the partnership, and each of them did, on the day named, pay in a check for that amount. These checks were deposited in the Mechanics’ Bank, to the credit of the firm of George Palen &. Co., and thereupon the said firm at once drew its four checks against this deposit, each for the sum of $50,000, in favor of the four special partners respectively. The firm of George Palen <& Co., thus assumed to have been formed, was not at all indebted at the time to either of the said special partners, but the checks were given to pay them money that was due to them from a former partnership.

As regards such former partnership, it appeared that on November 1, 1876, these same six parties had assumed to form a limited partnership under the statute, which was to terminate on January 1, 1882, but that they had failed to accomplish the purpose, because' no affidavit of the payment of the special capital had ever been made or filed as required' by the statute (1 Edm. R. S. 716, §§ 7 and 8).

The proof therefore showed that, though the form was gone through with on December 31, 1881, of paying in the special capital, the money was not paid in by the special partners with any intent that it should be devoted to the business of the new firm, or be subject to its obligations or risks. It was not, therefore, a case of misappropriation of the special capital by the general partners, but of an immediate withdrawal, of the special capital by the joint act of the generals and specials, for the sole benefit of the specials, and in pursuance of a premeditated and carefully prepared plan. Consequently, the affidavit made by George Palen on December 31, 1881, to the effect that the special capital had been actually and in good faith paid in, and in cash, was false.

The further fact appeared that George Palen & Co. were engaged in business as commission merchants in the city of New York, and also in the business of tanning leather in the county of Cattaraugus, and that no copy of the certificate of December 31, 1881, had ever been filed or recorded in that county, as required by the sixth section of the statute.

Upon these facts there can ■ be no doubt that the defendants failed to accomplish their purpose of forming a limited partnership, and that under section 8 of the statute, they are all liable in a proper action for all the engagements of their firm as general partners.

The defendants contend, however, and most of their exceptions to the admission of evidence, and all their exceptions to the refusal of the court to dismiss the complaint, were taken upon the theory that they are not liable in the action as brought, because the complaint should have been in terms founded upon the statute.

The contention is clearly not well founded, so far as the defendants are concerned who were 'confessedly general partners ; and as to those who claim to have been special partners, the point may be deemed to have been decided against them in this court in Stone v. De Puga (4 Sandf. 681). That the state of the Code then in force, which made a reply to new matter in the answer necessary, if it was to be controverted, does not affect the question under the Code of Civil Procedure, has been held in Sharp v. Hutchinson (49 Super. Ct. 50), Nor can it make any difference in the case at bar, that the defendants interposed a general denial, pure and simple, unaccompanied by a plea of special partnership. If a plaintiff may declare upon a particular cause of action, his right so to proceed can not be wiped out by the nature of defendant’s answer. In the present case, the cause of action has not been created or given by statute against the defendants who claim to have been special partners. They intended to, and in fact did enter into a partnership. If, in doing so, they had strictly complied with the provisions of the statute, which are conditions precedent, they might claim certain benefits under the statute. Having failed to do so, and yet having participated in the partnership business, they cannot claim the said benefits, but are hable to third persons as in case of a partnership at common law. Section 8 of the statute expressly says, that in such a case no limited partnership shall be deemed to have been formed, and that all the persons interested in such partnership shall be liable for all the engagements thereof as general partners. This is a mere re-enactment of the common law doctrine upon the subject. The question seems to have been carefully considered by the supreme court in Haviland v. Chace (39 Barb. 283). The head-note accurately states the point decided, viz : If the provisions of the statute are not complied with, the limited partnership is not formed, and if a false affidavit in respect to the payment in cash of the sums alleged to have been contributed by the special partners is filed, all the partners will be liable for all the engagements of th'e partnership as general partners.”

The claim of surprise advanced by the defendants, is equally untenable. In point of fact, no motion was made at the trial on any such ground. As to cases which may hereafter arise, it is sufficient to point out that, whenever it shall be satisfactorily shown that a defendant has been surprised, the court may, and no doubt will, upon such terms as may be just, grant an adjournment. As a general rule of pleading, a plaintiff is bound only to set forth the ultimate facts which constitute his cause of action, viz : a partnership, and if, thereupon, the defendant claims that he was only a partner of a particular kind, and as such exempt from liability under the statute, the burden is upon him to show that he earned his exemption by a full and fair compliance with the provisions of the statute. In this there is no hardship, for the matters upon which his exemption depends, are matters peculiarly within his own knowledge.

Upon a careful examination of the whole case, it fully appears that none of the exceptions taken by the defendants is tenable.

The exceptions of the defendants should be overruled, and judgment ordered upon the verdict in favor of the plaintiff, with costs.

Sedgwick, Oh. J., concurred.


text:
    THE PETREL GUANO CO., Appellant v. THE PROVIDENCE, WASHINGTON INSURANCE CO., Respondent.

      Insurance—Wager policy.—Burden of proof as to insurable interest.

    In an action on a policy of marine insurance, the complaint alleged ownership of the property in question by the assured, which was denied by the answer. On the trial the only evidence in support of the allegation was the policy of insurance containing the following clause : “S. K. Schwenk” (the assured), “ on account of whom it may concern, in case of loss, to be paid to him or order, does make insurance and cause himself to be insured, etc.” and also written assignments thereof showing title thereto in plaintiS.

      Held, that the complaint was properly dismissed; that the burden of proof was on plaintiff to establish an insurable interest, without which the policy was a mere wager.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 19, 1885.
    Appeal by the plaintiff from judgment entered in favor of defendant upon the dismissal of the complaint at the trial.
    Action upon a policy of insurance containing the following clause:
    “ S. K. Schwenck, on account of whom it may concern, in case of loss, to be paid to him or order, does make insurance and cause himself to be insured, lost or not lost, at and from New York via Norfolk to St. Anns with privilege, &c.” The policy was duly introduced in evidence.
    Further facts appear in the opinion.

      WaTceman & Lotting, for appellant.

      Edward D. McCarthy, for respondent.
    In every contract of marine insurance, there must be an insurable interest, and in an action on a marine policy, the complaint must allege it, and the evidence establish it. Here it is alleged, that one Schwenck was the owner of the subject insured, which was merchandise under deck, bound to St. Anns. But there is no evidence to sustain the allegation. For anything that appears in this case, the policy was a mere wager. Hence, if Schwenk had no interest, he assigned nothing to Eitchie, and the latter assigned nothing to the plaintiff (Marshall, book 1, 97; Murdock v. Chenango Ins. Co., 2 Coms. 210).
   By the Court.—Freedman, J.

This action is brought on a policy of insurance, issued on merchandise under deck, shipped on board the bark David A. Preston. It is not a case for a reformation of the policy, nor a case on a contract broader than the policy, of which the policy constitutes only a part, but a case on the policy as it stands. The policy, therefore, represents the final contract between the parties, into which all prior negotiations between them have been merged, and hence parol testimony to change its meaning was properly excluded at the trial.

The policy was taken out by one S. K. Schwenk, “ on account of whom it may concern,” the loss, if any, to be paid to him or order. The complaint alleges that said Schwenk “was, at the time of the commencement of the risk and thereafter until the said loss, the legal owner and possessor of said insured merchandise, and that thereafter for value he duly assigned his interest in the said policy and to the claim and cause of action thereunder, herein set forth, to E. Lucien Eichie and to his assigns ; and that thereafter for value the said Eichie duly assigned the said assigned interest in said claim and cause of action to this plaintiff, who is now the legal and equitable holder and owner thereof. For that the said Schwenk and Eichie were, at the times hereinbefore mentioned, trustees of the plaintiff, and did what they did in and about the insurance and matters aforesaid, as such trustees, and for the benefit of the plaintiff and in furtherance of its business, and- for the purposes for which the plaintiff was incorporated.” These allegations were duly put in issue by the answer, and consequently the burden of proof was upon the plaintiff to establish an insurable interest. Without such proof, the policy was a mere wager. The point was distinctly raised, among others, on the motion to dismiss the complaint. The plaintiff failed to make such proof. The most it did was to produce the assignments. They constituted a mere formal title on paper which amounted to nothing, unless Bchwenk had an insurable interest, of which no evidence whatever was given

The complaint was therefore properly dismissed. Under the circumstances, it is not necessary to notice any of the other grounds.

The judgment should be affirmed, with costs.

Sedgwick, Oh. J., concurred.


author: By the Court.—Truax, J.

text:
    C. FAYETTE TAYLOR, et al., Respondents, v. THE METROPOLITAN ELEVATED R’y CO., et al., Appellants.

      Demurrer to complaint and supplemental complaint—misjoinder of parties and of causes of action.—Discontinuance—how effected.

    Where the complaint sets forth a cause of action arising out of injury to real property,—viz., a lease of certain premises, owned by the two plaintiffs,—caused by the building and operation of.an elevated railroad, and the supplemental complaint alleges an assignment to one of the plaintiffs, of all the interest of the other in said claim, and also sets forth a cause of action for personal injuries in behalf of the plaintiff to whom the assignment is made,—viz., for injuries to his health, &c., arising from the building and operation of said road,—no change being made in the supplemental complaint as to the title of the action or description of the parties, and no leave to discontinue as to the plaintiff making the assignment having been obtained—a demurrer to the whole pleading will be sustained; first, because, one of said two causes of action does not affect all the parties; and second, because one of the causes of action falls under subd. 2 of section 484 of the Code of Civil Procedure, and the other under subd. 4, and since they do not arise out of the same transaction, they are improperly united.
    That two causes of action which cannot properly be united, are stated in one count, does not deprive defendant of his right to demur for misjoinder.

      Before Freedman and Truax,- JJ.

      Decided June 19, 1885.
    Appeal from an -order denying a motion made by defendants for leave to withdraw their answer to the original complaint, and their demurrer to the supplemental complaint, and for leave to demur to the complaint and and the supplemental complaint taken together as the complaint in the action, and for such other and further relief as may be just.

      Davies & Bapallo, for the appellants.

      Wm. W. Badger, for the respondents.
   By the Court.—Truax, J.

If a demurrer to the complaint on any of the grounds stated in the motion papers will, lie, the order appealed from should be reversed ; if it will not lie, the order should be affirmed. The grounds of demurrer stated are that there is a misjoinder of parties plaintiff; that several causes of action have been improperly united ; and that the complaint does not state facts sufficient to constitute a cause of action

The supplemental complaint shows that one of the plaintiffs, Thomas L. M. Chrystie, has assigned “all his right, title and interest in and to this action and its proceeds, and to all causes of action of every kind existing in his favor against the defendants, or either of them,” to the other plaintiff. But it nowhere appears that the action has been discontinued as to him. He is called a plaintiff in the supplemental complaint, he is named in the summons as one of the plaintiffs. But the fact that he has parted with his cause of action, and is no longer interested in obtaining the relief demanded, is not equivalent to a discontinuance of the action as to him. He must obtain the leave of the court before he can discontinue the action. This leave he has not yet obtained, and therefore he still continues to be a party plaintiff.

The plaintiffs allege, in their supplemental complaint, among other things, that one of the plaintiffs, Taylor, “has been damaged, and has suffered great inconvenience and annoyance, much personal discomfort and loss of health and strength, and of sight and hearing, and has been caused great sufferings and pains and sickness by the wrongful acts of the defendants” in building and running their railroad. This is a cause of action for personal injuries to the plaintiff Taylor, and comes within subdivision 2 of section 484 of the Code of Civil Procedure. It does not affect the plaintiff Chrystie.

The plaintiffs allege in their amended complaint that they have a lease of a certain piece of real estate situate on the line of the defendant’s road, and that their interests in this property have been injured by the wrongful acts of the defendants in building and running said road. This is the cause of action mentioned in subdivision 4 of section 484; it is a cause of action for injuries to certain real property which belongs to both of the plaintiffs. It is not an action for personal injuries (subd. 9, § 3343, Code Civ. Proc.). It has been improperly united to an action for personal injuries, for section 484 allows a plaintiff to unite two causes of action only where they both belong to one of the subdivisions of that section. But in this case, one of the causes of action belongs to subdivision 2, while the other belongs to subdivision 4 of that section.

The two causes of action have been improperly united for another reason, viz., one of them does not affect all the parties to the action (see last paragraph of section 484).

The plaintiffs contend that the two causes of action have not been improperly united because they both “ arise out of the same transaction.” That is not the fact. It does not follow that both causes of action arise out of the same transaction, because the same act renders the defendants hable in both causes of action (Keep v. Kaufman, 36 Super. Ct. 141; aff’d, 56 N. Y. 332; cited with approval in 64 Ib. 178). The transaction first. above mentioned is an injury to the person of the plaintiff Taylor, while the transaction secondly above mentioned is an injury to property that belongs to both of the plaintiffs. These are not the same transaction.'

The fact that the plaintiffs have stated the two causes of action in one count, instead of stating them aS two causes of action, does not deprive the defendants of their. right to demur (Wiles v. Suydam, 64 N. Y. 173 ; Goldberg v. Utley, 60 Ib. 427).

I am of the opinion that the causes of action have been improperly united, and that the order should be reversed, with costs, and the motion granted, with $10 costs. ‘

Freedman, J., concurred.


text:
    MARIA C. COOK, Appellant, v. PAUL RIEF, Respondent.

      Libel and slander—Pleading—Application of words to defendant.

    The words “ Those people up-stairs keep a whore-house,” are actionable per se.

    Where the complaint alleges that the above words were spoken “ concerning ” plaintiff, such allegation is sufficient under the Code, to connect the plaintiff with the words, “ the people up-stairs,” and will admit proof that plaintiff was one of the people referred to.
    Fleischmann v. Bennett (87 J7. 7. 231), distinguished.
    Before Sedgwick, Oh. J., and Truax, J.

      Decided June 19, 1885.
    Appeal from an order dismissing the complaint, and from the judgment entered against the plaintiff, and from the order denying the motion for a new trial.
    The complaiqi; alleges “ that on the 4th day of October, 1884, at or near the premises No. 77*Grand street, in the city of New York, the defendant, in the presence and hearing of a number of persons, maliciously spoke concerning the plaintiff, the following false and defamatory words, viz : ‘Those people up-stairs keep a whore-house, and I can prove it,’ meaning thereby this plaintiff, whereby plaintiff was injured in her reputation to the damage of $5,000.”
    The answer was a general denial.
    The trial judge dismissed the complaint on the ground that it did not set forth facts sufficient to constitute a cause of action.

      Henry C. Andrews, for appellant.
    I. The complaint is sufficient. The material allegations where the words are defamatory on their face, and in the English language, are : that defendant with malice (Viele v. Gray, 10 Abb. Pr. 1), spoke in the hearing or presence of any persons (Wood v. Gilchrist, 1 C. R. 117), concerning the plaintiff {Code Civ. Pro. § 535), the false, slanderous matter.
    II. The words are actionable, per se, because they impute to plaintiff an indictable offense, and involving moral turpitude (Penal Code, § 322 ; Martin v. Stillwell, 13 Johns. 275 ; Wright v. Paige, 36 Barb. 438; 3 Keyes, 581; Anon., Cro. Eliz. 643; Brayne v. Cooper, 5 M. & W. 249 ; Huckle v. Reynolds, 1 C. B. N. S. 114). It was therefore unnecessary to plead an innuendo or an averment that the words uttered were intended to impute the offense (More v. Bennett, 48 N. Y. 472 ; Carroll v. White, 33 Barb. 615 ; Croswell v. Weed, 25 Wend. 621). It is sufficient to say they were uttered concerning the plaintiff (Wesley v. Bennett, 5 Abb. Pr. 498; Malone v. Stilwell, 15 Ib. 426 ; Code Civ. Pro. § 535).

      J. H. Whitelegge, for respondent.
    If the words charged to have been spoken, were in fact uttered by defendant, there is po fact therein disclosed whereby the court can determine that the language was applied to, or had the remotest reference to the plaintiff. The complaint alleges no facts showing either that plaintiff was “those people,” or that she was “up-st-airs,” at any place at or near Ho. 11 Grand street, or elsewhere in that neighborhood, or that she was known there. The allegation that the words were spoken of, and “concerning the plaintiff,” and the words :—“ Meaning thereby this plaintiff,” are insufficient to constitute a cause of action when connected with the alleged slanderous words.
    The language charged to defendant relates to a plurality of people, having no relation to or with the plaintiff, so far as the complaint shows. In Fleishman v. Bennett) in which the main question involved was, whether the libelous language set up applied to the plaintiff, the court of appeals (87 N. Y. 231), say : “ An innuendo in a complaint . . . does not enlarge the matter constituting the alleged libel, but only explains its application ; and when not justified by the alleged libelous statement to which it refers, so that rejecting it, the words are not libelous, a demurrer will He.”
   By the Court.—Truax, J.

Section 535 of the Code of Civil Procedure says that it is not necessary, in an action for Hbel or slander, to state in the complaint any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter ; but the plaintiff may state, generaHy, that it was published or spoken concerning him.

The words here are actionable per se. The only ex-, trinsic fact necessary for the plaintiff to show in order to maintain her action, is the fact that she was one of those people up-stairs. She has aUeged, in the words of the Code, that they were spoken " ‘ concerning ” her, and by demurring to the complaint, the defendant has admitted the truth of this aHegation. On the trial the plaintiff could have proved under this allegation, that she was one of those people up-stairs (Wesley v. Bennett, 6 Duer, 688 ; 5 Abb. 498 ; Malone v. Stilwell, 15 Ib. 421 ; Parker v. Raymond, 3 Abb. N. S. 343).

This case is to be distinguished from the case of Fleischmann v. Bennett (87 N. Y. 231). In that case the libelous article assailed the firm of Gaff, Fleischmann & Co., but the plaintiff alleged, and on the demurrer it was taken as true, that he was not, and never had been a member of that firm, and, therefore, the court held that the words used had no application to the plaintiff. It is as though the plaintiff in this case, had alleged that she was not one of “those ¡Deople up-stairs.”

The judgment and order appealed from are reversed, and a new trial is ordered, with costs to the appellant to abide the event.

Sedgwick, Oh. J., concurred.


author: By the Court.—O’Gorman, J.

text:
    FRANCIS F. MORTON, et al., Respondents, v. OLIFF F. HARRISON, Appellant.

      Building contract—Substantial performance in good faith—Waiver of said compliance—questions for the jury—Acceptance—Non-completion by day fixed, excuse for, and effect of—Damages in case of substantial, but not strict performance, evidence as to.

    A contract called for the building of a twelve-inch wall from the foundation to the top of the iron cornice or basement floor joist. It was, in fact, built only to the underside of girder." The upper stories settled from one to one and a half inches. Defendant claimed this was the result of not building said wall as high as called for, the neglect to do which was a serious and substantial violation of the contract. There was evidence tending to show that when this wall came to be built, it was found that it would be improper and unsafe to carry it up further than was in fact done ; that to carry it up further would jeopardize the whole building;. that the course actually adopted was the proper one ; that the settling was due to other causes, for which defendant’s agents were responsible; it was also proved that the architect’s superintendant directed this deviation because it was in his opinion necessary, and any other course would have caused the whole building to settle. Meld, that it was properly submitted to the jury to determine whether the wall as built was a substantial performance in good faith, of the contract.
    In the case at bar, there was evidence to the effect that defendant’s agents frequently visited the building, and were active in their criticism of the work, and that their presence had placed them in a position where they must have known of the manner in which the provision of the contract as to the twelve-inch wall was being carried out. Held, that it was properly submitted to the jury to determine whether there had been a material variation without the consent of defendant, under a charge which instructed the jury that an acceptance might be implied from the acts of the party; but that the mere occupancy of a building is not a waJoer of strict performance.
    Where there arc changes in the plans, which, either of themselves, or by reason of necessitating other changes, or by reason of delay in directing them, or by reason of the delay of other workmen in furnishing the articles necessary for the change, or by reason of all these circumstances combined, delay the completion of the contract, or the owner’s neglect to exercise an option which he retains at the proper time, causes delay. Held, proper to submit to jury whether such delays excused non-completion by the day fixed, and if they did, then whether the work was completed within a reasonable time, under a charge instructing them, that if non-completion by the time fixed was excused, then the plaintiffs (the contractors), were to complete the work only within a reasonable time.
    In case of a substantial but not strict performance of the contract, the measure of damages is the difference- between the value of the house, as in fact finished, and as it would have been if the provisions of the contract had been strictly complied with. Evidence of cost to make conformity is immaterial and irrelevant to the inquiry as to this difference, in a case where it is manifest that to make such conformity would involve the destruction of so much work already done, and the doing of so much not originally contemplated by the parties as not to give the jury any reliable aid in ascertaining such difference.
    Before Sedgwick, Oh. J., and O’Gorman, J.

      Decided June 26, 1885.
    Appeal from a judgment entered against the defendant, February 19,1884, for $40,385.09, on a verdict rendered in plaintiffs’ favor, and from an order denying a motion for a new trial.
    Action upon a building contract.
    The cause was tried before Truax, J., who charged the jury as follows :—
    “The plaintiffs allege that in February, 1882, they entered into a contract with the defendant to make certain changes in a building on the south side of Forty-second street, in this city, according to certain plans and specifications, and that the defendant agreed to have thoso changes made prior to or on July 1, of that year. The plaintiffs say they have complied substantially with all the requirements of their contract. They admit that there was a delay in the completion of the building, but they say that that delay was not caused by any neglect on their part, but was caused by and through the neglect of the defendant. The defendant admits the making of the contract; but he denies that the contract, has been performed as it should have been, and he alleges that the delay which it is admitted occurred, was not through or on account of any action on his part. He denies that the delays in finishing the building and completing the work to be done under the contract, were caused by modifications of, or deviations in the work, varying it from the original 'contract, or that any such modifications or deviations were made at the request of the defendant or his agents; and he expressly alleges that such delays and failure to complete the work were wholly through, and the result of the carelessness and neglect and improper conduct of the plaintiffs. The questions for you to determine, therefore, are: Have the plaintiffs substantially complied with the covenants and conditions of their contract in the building they have given to the defendant ? and, second, were the delays in handing over the building on July 1,' caused by the plaintiffs, or caused by the defendant ? The plaintiffs, as I have told you, say the delay was owing to the changes made in the plans and specifications, by the defendant through his agents. But it is for you to say what is the fact. Did the plans show and call for a Whittier elevator, or did they call for some other ? If, as they have stated, the plans call for a Whittier elevator, then a change was made, and that change excuses any delay caused by such change. In relation to the water-closets, I do not remember that there is any evidence (and if there is, I ask counsel to call attention to it now) that the plans called for any particular water-closet.”

      Mr. Norwood.—“They were to be as in ‘the Benedick.’”
    The Court—“ I am of opinion, and so charge, that the plans did not specifically call for the same appliances that there were in the 6 Benedick.’ If that be the fact—if the plans and specifications did not call for any particular water-closet—then, I charge you, it became the duty of the defendant to notify the plaintiffs, in due time, what water-closet he required ; because it would not be just for the defendant to wait until the last day of June to inform the plaintiffs what water-closets he wanted, and on that day say, ‘ put in such a water-closet,’ and then charge them with delay in not having them in by July 1. When did the defendant, then, inform the plaintiffs what water-closet he wanted ? The plaintiff, Mr. Chesley, as I remember the evidence, said it was in June. The defendant, on the other hand, or his agent, produced a letter, dated May 23, in which he notified the plaintiffs what water-closet he wanted. So that I think you may take it for granted that on May 23, 1882; the defendant did notify the plaintiffs that a certain water-closet was required in the building. Was that notification a sufficient length of time before July 1, to give the plaintiffs an opportunity to get the water-closets in there ? In other words, was any delay caused in the construction of the building by the failure of the defendant to inform the plaintiffs until May 23,—what water-closet was needed ? You will consider that in relation to the question of delay.
    “There was some evidence, too, as to the fire escapes. Now the contract says that the defendant may, if he sees fit, have a fire escape in the building. It was his duty, then, to notify the plaintiffs at a reasonable time before July 1, what kind of a fire escape he wanted, so that the plaintiffs might put it up there ; and if he failed to do so, that failure would excuse the plaintiffs for delay caused thereby.

      “ So much for the facts of the case in relation to the question of delay.”
    u There is a question now, as to the compliance by the plaintiffs with the conditions of their contract—whether they performed the covenants of their contract. Have they built the building according to the plans and specifications ? Now a literal compliance is not entirely requisite. Have they substantially built the building according to the terms of the contract %

    ££I charge you that, in order to justify a recovery, before you can find a verdict for the plaintiffs, the defects, if there be any, must be only in the minor details, and must not pervade the whole building. I charge you that if there was any material variation from the specifications, without the consent of the owner, and this material •variation runs through the whole building, so that the defendant has not got what he contracted to get, then the plaintiffs are not entitled to recover in this action. I say, ‘without the consent of the owner.’ By that I mean without the consent of Mr. Clement or Mr. Ellis, who were the agents of the owner—-without the consent of the owner or his agents ; and this consent may be implied from the acts as well as from the express words of the owner or his agents. In other words, is there such a state of facts as would warrant you in concluding from the evidence, that, with full knowledge of the condition in which the work had been done, the defendant accepted the work ? If there be any such facts, and you can fairly draw that conclusion from those facts, then I charge you that there has been an acceptance. In other words, it is not necessary that an acceptance should be in the words ‘ I accept.5 Tou may imply it from the acts of the party. But the acceptance of the architects is not the acceptance of the defendant in this action ; because there is no evidence (I charge you) that the architects were agents of the defendant, so that they could bind Mm by accepting the work.
    “ I also charge you that the occupation of the building by the defendant is not a waiver of strict performance of the contract; that a party is entitled to retain, without compensation, the benefit of a partial performance, where, from the nature of the contract, he must receive such benefits in advance of a full performance, and is, by the contract, under no obligation to pay until the performance is complete.
    1 ‘ In relation to the changes in the contract, I have charged you that the architects were not the agents of the defendant, and that they had no right to make any change without the consent of the defendant. There must be no willful deviation from the specifications, and if there was any such deviation, there must be a verdict for the defendant, unless the defendant or his agent has consented thereto.
    “While the plaintiffs were under obligation to comply with the contract and specifications, still, if the defendant knew that they had not so complied, and accepted and paid for the work then done, without objection, you would be entitled to consider that as a waiver of strict compliance.
    “ The. plaintiffs claim that they have fully and sufficiently performed their contract according to its terms, and according to the specifications and plans, and that the matters which are the subject of complaint by the defendant, are not attributable to any failure in performance by the plaintiffs, and in considering this claim of the plaintiffs, you are instructed that the rule of law is that if you find that the proof supports this claim, the plaintiffs are entitled to your verdict.
    “There has been evidence that there was a defect or deflection in the walls. If this deflection in the walls was caused by the plans not being the right kind of plans for the building—if it was caused through a defect in the plans instead of a defect in the construction of the work by the plaintiffs, then that is not the plaintiffs’ mistake, and they are not responsible for it—it is the mistake of the defendant.

      “If you find that the plaintiffs have performed their contract in every respect except as to time, and you further find that the delay in completing the contract by the time specified, was attributable to changes in the work from the original contract and specifications made at the request of the defendant, of those acting for him, then the plaintiff can recover, notwithstanding such delay.
    “A substantial compliance only is required, and if the owner suffers the builder to go on after the time limited has expired, with knowledge of its condition, without expressing disapproval, he waives the forfeiture which he might otherwise have claimed. He was bound to express his dissatisfaction at the delay; and if he intended to take advantage of it, should have acted with promptness at the time, instead of allowing the contractor to expend time and money in the completion of the work.
    “ If the plaintiffs were proceeding to complete their contract according to its terms, and according to the specifications, and changes were made in reference to the elevator, water-closets, or in any other respects, at the request of the defendant or his agent, and such changes, or any of them, prevented the completion of the contract by July 1, 1882, then the plaintiffs are excused for not completing at that date. If you find any of the facts that I have mentioned, which excused the non-completion by July 1, 1882, then the plaintiffs were bound to complete the work only within a reasonable time ; what was a reasonable time is a question to be determined by the jury from the circumstances of the case.
    “Where a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects or unintentional omissions, he may recover the contract price, less the damage on account of such defects ; if the jury find the general purpose of the contract between the parties has been accomplished, the plaintiffs are entitled to recover upon the contract.
    “The principal question is perhaps, in relation, to the compliance by the plaintiffs, with the terms of their contract, in respect to this twelve-inch wall. I leave it for you to determine, whether the twelve-inch wall was completed substantially as required by the terms and specifications of the contract. If you come to the conclusion that the twelve-inch wall, as built, is substantially what the contract calls for, although it may not be the one in every particular, then your verdict will be for the plaintiffs. If, on the other hand, you come to the conclusion that it is an entirely different thing, and does not do the work which was required of it, and which a wall specified in the plans would do, then I charge you the plaintiffs have not performed their contract and cannot recover in this action. I leave that fact for you to determine.”

      Billings & Cardozo, attorneys, Coles Morris and Michael H. Cardozo, of counsel for appellant,, cited authorities to the following propositions which they urged:
    I. The full performance by the plaintiffs of their contract with the defendant was a condition precedent to their recovery in this action, and there was no such substantial performance shown as entitled them to a verdict (Heckman v. Pinkney, 31 N. Y. 211; S. C., 8 Daly, 466 ; Woodward v. Fuller, 80 N. Y. 312; Glacius v. Black, 67 Ib. 563 ; S. C., 50 Ib. 145 ; Crane v. Knubel, 34 Super. Ct. 443 ; affirmed, 61 N. Y. 645 ; Smith v. Brady, 17 Ib. 173; Phillip v. Gallant, 62 Ib. 264; Walker v. Millard, 29 Ib. 375 ; Pullman v. Corning, 9 Ib. 93; Sinclair v. Tallmadge, 35 Barb. 602; Smith v. Gugerty, 4 Ib. 614; Bonnesteel v. The Mayor, 6 Bosw. 560 ; affirmed, 22 N. Y. 162).
    II. The contract expressly required the work and finish to be done thereunder to the satisfaction of the owner, the defendant, and the trial court erred in refusing to give any effect to this clause of the contract (President, &c. of D. & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250, 258). Such clauses are frequently found in contracts, and the courts of this and other states have always given effect to them (McKensie v. Decker, 94 N,
      Y. 650 ; Gray v. N. Y. C. & H. R. R. Co., 11 Hun, 70 ; Hoffman v. Gallaher, 6 Daly, 42 ; McCarron v. McNulty, 4 Gray [Mass.] 139 ; Brown v. Foster, 113 Mass. 136 ; S. C., 18 Am. R. 436 ; Gibson v. Cronage, 39 Mich. 49 ; S. C., 33 Am. 351; note pp. 353, 354: Galeski v. Clark, 44 Conn. 218 ; Russell v. Allerton, 31 Hun, 307). Even Judge Bronson concedes this to be the rule in Buller v. Tucker (34 Wend. 449).
    III. This was not a contract to erect a building, but one to alter or repair a building already erected, and the true rule of damages was, what it would cost to make the building, as left by the plaintiffs, conform to the contract, plans and specifications (Smith v. Brady, 17 N. Y. 173-177). The rule as announced by the court of appeals, in Kidd v. McCormick (83 N. Y. 381), does not apply to the case of an alteration of, or repairs to, a building.
    IV. The court erred in leaving it as a question of fact for the jury 11 to determine whether the twelve-inch wall was completed substantially as required by the terms and specifications of the contract.” The specifications expressly required that the wall should have been built up to the top of the basement floor joists. Instead of which, it was only built up to the under side thereof, about twenty inches lower than was required by the specifications. This precise point was decided in Glacius v. Black (67 N. Y. 563-567). The same rule was laid down in Smith v. Brady (17 N. Y. 173. See also opinion of Judge Comstock in this case, pages 186, 187).
    V. All of the evidence given by the plaintiffs’ witness, Hill, the superintendent of the architects employed by the defendant, as to changes made by his direction from the plans or specifications, should have been excluded under the contract (Glacius v. Black, 50 N. Y. 143, at p. 150 ; Graham & Waterman New Trials, 612-630). The admission of this testimony is cause for reversal (Gulf C. & Santa Fe R’y Co. v. Levy, 59 Tex. 542 ; 46 Am. 269).
    VI. Chesley stated, on cross-examination, that the twelve-inch brick wall was not laid to the top of the base-
      meat floor joist, as required by the specifications. Plaintiffs’ counsel then asked, “Why was not that done?” Defendant objected as incompetent. The question was allowed upon defendant’s exception, and the witness answered : “ Mr. Hill decided that that was the best way to do it.” Defendant’s motion to strike out this answer was denied, and an exception was taken. After stating that they had not complied with the specifications in this exceedingly important particular, plaintiffs were allowed to excuse their failure by showing that this same Mr. Hill, the employee of the architects, decided that it was the best way. Even if it be proper to allow plaintiffs to show why they deviated from the specifications, it is unquestionably incompetent to allow such testimony as this to stand upon the record, and the answer at least should have been stricken out. The answer might have been that defendant so directed.

      Norwood <& Coggeshell, attorneys, and Carlisle Nor-wood, Jr., of counsel for respondents, cited authorities for the following propositions, urged by them
    I. The rule as to delay is, that where a contractor in a contract of this kind was prevented from completing his contract by changes from the specifications, or by any act of the other party, the contractor would be excused from performing at the contract time (Dillon v. Masterson, 42 Super. Ct. 176 ; Doyle v. Halpin, 33 Ib. 352; Smith v. Gugerty, 4 Barb. 614; Fleming v. Gilbert, 3 John. 528 ; Farnham v. Ross, 2 Hall, 167 ; Stewart v. Keteltas, 36 N. Y. 388 ; Sinclair v. Talmadge, 35 Barb. 602).
    II. It is conclusively settled that the true test of the question whether the plaintiffs can recover upon a contract such as in the case at bar, is as follows: If the defects are of such a grave nature that they go to the whole purpose of the contract between the parties, plaintiffs can recover directly on contract; but if they are the defects of such a character that, though grave in themselves, they relate simply to particular parts of the structure, they can (Woodward v. Fuller, 80 N.Y. 312 ; Glacius v. Black, 67 Ib. 563 ; 50 Ib. 145 ; Johnston v. De Peyster, 50 Ib. 666 ; Hickman v. Pinckney, 81 Ib. 211; O’Sullivan v. Connor, 8 Week. Dig. 61 ; Phillip v. Gallant, 62 N. Y. 256; Weeks v. Little, 47 Super. Ct. 1; aff’d, 89 N. Y. 566 ; Smith v. Gugerty, 4 Barb. 614). It is now well settled law that “ where a builder has, in good faith, intended to comply with the contract, and has substantially complied with it, although they may be slight defects caused by inadvertence or intentional omissions, he may recover the contract price less the damage on account of such defects (Woodward v. Fuller, 80 N. Y. 312, 405).
    III. Mr. Ohesley, having testified, on cross-examination, that the twelve-inch wall was not laid on top of the basement floor joist, was asked, on the re-direct, why that was not done, which was objected to as incompetent, and having answered that Mr. Hill decided that was the best way to do it, defendant’s counsel moved to strike out the answer, “on the ground that the decision of Mr. Hill cannot control the work.” The court will recall the numerous cases cited {ante), holding that the good faith of the contractor, where he deviates from the contract, is one of the elements of his case. On the question of plaintiffs’ good faith, the testimony was competent; and as to the motion to strike out, the ground of the motion was wholly untenable ; plaintiffs never claimed that the decision of Mr. Hill was controlling. The defendant’s counsel requested the jury to be instructed on this point, and the court allowed the request.
    IV. The provision in the contract that “ all work and finish shall be done to the satisfaction of the party of the first part,” means should be to the reasonable satisfaction of the owner (Addison Contr. § 858 ; Dalman v. King, 4 Bing. N. C. 115), and this was, on the evidence, a question for the jury.
    V. Plaintiffs insist that since this building was not built, or to speak more accurately, was not altered into a bachelor apartment house, for occupancy by the defendant; but that on the contrary the purpose of the building was renting it to others ; that the only damages defendant could recover would be such as were occasioned by the actual loss of a tenant whom he might have procured but for the unreadiness of the building (Wagner v. Corkhill, 40 Barb. 175).
    VI. The rule of damages invoked by defendant was clearly incorrect. He was not entitled to recover the cost of supplying omissions, or of making good defects, but could recover, if at all, the difference in value between the building as contracted for and as finished (Kidd v. McCormick, 83 N. Y. 391-397).
   By the Court.—O’Gorman, J.

The plaintiffs were building contractors, doing business in the city of Hew York under the firm name of Morton & Chesley, and on or about February 4, 1882, they entered into a written agreement with the defendant—“to tear out, alter and rebuild ” his premises known as 228-232 West Forty-second street, in this city, so that they should contain a complete first class apartment house of thirty-nine complete suits, in the same general style as to workmanship, &c., as that prevailing in “The Benedick” apartment house in Washington square. The work was to be done pursuant to certain specifications, “so far as the same were applicable thereto,” and in accordance with detailed plans to be prepared by McKim, Mead & White, defendant’s architects, and approved by the defendant. All work was to be done to the satisfaction of the defendant, and the whole was to be finished on July 1, 1882. The sum of $45,000 was to be paid to plaintiffs for their work, in monthly installments, on certificates of the architects, and the balance was to be paid on the final performance of the contract, and delivery of the premises to the defendant as contracted for.

The work was not, in fact, finished until February 28, 1883, when the premises were delivered to the defendant.

The defendant Harrison resided in Vermont, and never gavo personal attention to the building while in progress. It does not appear that he was ever there, and he left the protection of his interest in the matter wholly to two persons who acted as his agents therein, named respectively George W. Ellis, his attorney, and Percival W. Clement, who guaranteed the defendant’s payments on the work, and entered into possession of the premises when completed and delivered up by the plaintiffs.

The defendant paid the plaintiffs $8,800 during the progress of the work, and this action was brought to recover from him $36,200, the balance claimed to be still due. The defense was, that the plaintiffs had failed to comply with important and substantial requirements of the contract; that the time fixed in the contract for the completion of the work, July 1, 1882, was of the essence of the contract; that in various other particulars the defendant, by reason of the negligence and unskillfulness of the plaintiffs as to material and substantial provisions of the contract, had been subjected to great loss and damage, amounting to $40,000, for which sum the defendant made a counter-claim.

Of these charges against the plaintiffs, of failure to comply with their contract, but two seem to be important and entitled to consideration as affecting this appeal. One was, that the plaintiffs failed to build a twelve-inch brick wall from the foundation to the top of the iron cornice or basement floor joist, as required by the specifications. It is not denied that in this respect, the strict letter of the specifications was not complied with. The brick wall was built only to the underside of the girder, on which the floor beams of the basement floor rested. This, defendant claims, was a material and substantial violation of the contract, disentitling the plaintiffs to any recovery ; that its effect was to allow of a depression in the second, third, fourth, and fifth floors of the building, of from one to one and one-half inches ; and that this mischief would not have occurred if the brick wall had been built to the top of the basement floor joist, as required by the specifications. There was, on this subject, much conflict of testimony. Witnesses on the part of the plaintiffs testified that it would have been improper and unsafe to carry the twelve inch brick wall to the top of the basement floor joist ; that when the time came to do this work, it was found that to carry out exactly the terms of the contract, would have left the wall partition and everything resting on it in the five stories above, without any support, and would have jeopardized the whole building; that the course actually adopted, was the proper course ; that the depression of the floors above was not more than usually occurred in houses thus altered from one purpose to another; that it was not caused by the plan adopted, but. was the result of shrinkage of the wood from over-heating of the building, for which said Clement was responsible, and of the great additional weight of many new partitions, erected on the upper floors, while in the house, in its former state, few partitions or rooms had existed.

The testimony of Mr. Hill, the superintendent employed by the architects, was substantially to this effect: He was continuously, from day to day, observing the work as it progressed, and it was his duty to see that the work was done according to the plans and specifications. It was he who directed this deviation from the terms of the specifications, without any consultation with his employers, because, in his opinion, it was necessary, and any other course would have caused the whole building to settle.

As tending to show acquiescence, or waiver of objection on the part of the defendant, the plaintiffs proved that both of the defendant’s agents, Ellis and Clement, were frequent in their visits to the building, while it was in progress, and active in their criticism of the work; that their constant presence had placed them in a position where knowledge of all that was done there was within their reach, and that they, or either of them, must have known of the manner in which the provision of the contract, as to the twelve-inch wall, was being carried out.

The learned trial judge submitted to the jury, as a question of fact, whether the plaintiffs had substantially performed their contract, or whether there had been any material variation from it without the consent of the owner or his agents, and, in his charge, correctly instructed the jury as to the rule of law applicable to the case, and his charge was in harmony with the authorities cited by the learned counsel for the defendant. In my opinion, the question was properly submitted to the determination of the jury.

The other ground of defense is the plaintiffs’ delay to complete the work on July 1, 1882, as required by the terms of the contract, whereas, the work was not in fact completed until February 28, 1883, seven months after-wards.

For this failure to comply with the terms of the agreement, plaintiffs offer this excuse. They say that they were embarrassed and delayed by changes of plan made by defendant’s agents, Ellis and Clement.

The intention of the parties to the contract was, it appears, at first that an elevator should be put in the building, of the kind known as the “Whittier” elevator, and which was used in the “ Benedick ” apartment house, During the progress of the work, and about May 23, 1882, Clement determined to use an “ Otis ” elevator instead, and this change rendered necessary some other changes of the plans, as they were originally formed. It is in evidence that when the plaintiffs were informed of this change to the “ Otis ” elevator, they had already made a contract for an elevator with the “Whittier Machine Company,” dated March G, 1882, and some necessary delay occurred before plaintiffs could relieve themselves from their contract with the “ Whittier Company.” This, they, at last, succeeded in doing; and on June 29, 1882, they made a contract with “ Otis Brothers.”

Testimony was also given, on behalf of the plaintiffs, to show that the completion of the building had been further delayed by a change made by defendant’s agents as to the kind of water-closets to be put in. The architects at first determined on the closet known as the “ Bartholomew ” as being that kind in use in the Benedick.” They afterwards changed it to the Zane ” closet. Then, Clement finally required that the “Hellyer” plan should be used, which involved putting in a fine of pipe directly to the roof. This last choice,1 on the part of Clement, was not communicated to Chesley, one of the plaintiffs, until July 28, 1882, some days after the day fixed for the final completion of the building. It is also in evidence that these “ Hellyer ” closets as ordered, were not delivered to the plaintiffs until September 1882.

The learned trial judge submitted to the jury, with proper instructions, the question as to whether or not the plaintiffs had shown good reason or valid excuse for not completing the building at the day fixed by the contract, and whether, under all the circumstances of the case, they had completed it in reasonable time. No error, in my opinion, was committed therein. Both these questions were proper for the determination of the jury, and there was enough of evidence in the case to sustain their verdict.

The appellant’s exception to the refusal of the trial judge to charge “ that if they found that the contract has been substantially performed, they must allow the defendant such an amount as would be necessary to make the building conform to what the specifications required, was not well taken. The true rule of damages in the case at bar would be the difference in value between the house as it was in fact finished by the plaintiff, and as it would have been if he had accurately carried out the provisions of the contract' (Kidd v. McCormick, 83 N. Y. 391). As a means of ascertaining that difference, and as matter of evidence tending to that end, the inquiry as to the actual cost of making the building conform to the specifications, would not be, in the case at bar, material or relevant. It is manifest, that to raise this twelve-inch brick wall, now, to the top of the basement floor joist, might involve the destruction of so much work already done, and the doing of so much work not originally contemplated by the parties, that such an inquiry could not give any rehable aid to the jury in ascertaining the difference in value, between the building, in a defective condition, and what would have been its value if no defect had existed.

This case seems to have been tried with care, and an exhaustive examination of all the facts which could give any light to the jury. The jury were also allowed to visit the building in question, and I see no reason to interfere with their verdict.

The judgment appealed from should be affirmed, with costs; and the order appealed from should also be affirmed, with $10 costs.

Sedgwick, Oh.. J., concurred.


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    THE METHODIST EPISCOPAL CHURCH HOME v. WILLIAM N. THOMPSON.

      Real estate—contract for purchase of—action Toy vendee to recover deposit, &c.—what defects in title will sustain.

    When a party seeks to disaffirm a contract for the purchase of real estate and to recover the deposit made on account of the price, etc., on the ground of a defective title, he must satisfy the court that the title is bad before he can recover. It is not enough to merely show that it is doubtful.
    Accordingly, where plaintiff, the vendee, refused to take title on the ground that there was an outstanding claim of title, under which certain persons claimed title to the property in question, but the undisputed evidence on the tiial showed that defendant, the vendor, and his grantors, had been in actual possession for about thirty years under a claim of title beginning in 1825, and there was nothing tending to show possession in any other person, or that any third person had a valid claim or lion on the land.

      Held, that plaintiff could not recover the deposit made by him on account of the purchase price. The facts show a clear adverse possession under the Code for over twenty years, which makes a title that a purchaser may not refuse.

      Before Sedgwick, Oh. J., and Truax, J.

      Decided July 23, 1885.
    Application by the plaintiff for judgment, on a verdict for the plaintiff, ordered by the trial court, subject to the opinion of the general term.
    Action to recover $1,500, deposited by plaintiff as vendee, on signing a contract for the purchase and sale of real estate, also $608.33 expenses and counsel fee in examining title.
    The plaintiff, a charitable corporation, desiring to purchase property on which to build, entered into a contract with this defendant, whereby defendant agreed to sell, and plaintiff to purchase, six lots of land on the north-west corner of Eighty-eighth street and Fourth avenue, in the city of New York, one hundred and thirty feet on Eighty-eighth street by half the block in depth, for the sum of $45,000, whereof $1,500 was deposited with the defendant on the execution of the agreement, and the balance, viz., $43,500 was to be paid on the delivery of the deed, which deed was to contain full covenants and warranty, and the premises to be free from all incumbrance. Plaintiff employed counsel to examine the title, and upon such examination it Was found that there was another outstanding chain of title claimed adverse to it, as follows : On August 30, 1819, one Elemuel Sheldon filed and recorded in the register’s office of New York county, a deed from one Patrick McKay and wife, to said Elemuel Sheldon, conveying with other property, the premises in question, and annexed to said deed and recorded therewith was a map showing said premises and entitled, “ A map of a piece of land situate in the ninth ward of the city of New York, on the Harlem Height, the property of Patrick McKay, Esq., containing seven acres and three roods, fifteen perches, surveyed New York, October 1, 1818, by Adolphus Loss, surveyor.” After various mesne conveyances, there was also recorded, on January 16, 1833, a deed of same premises to Joseph Parks, said Joseph Parks died and left a will, which was duly admitted to probate March 1, 1837, whereby said testator devised his estate to his executors, in trust, and on February 19, 1868, by an order or decree of the supreme court, new trustees were appointed. Subsequently an action of ejectment was brought in the United States circuit court for the southern district of New York, by said heirs, against the defendant for the recovery of the possession of the premises in question and adjoining property, and such action is now pending.
    The defendant tendered a good and sufficient deed of the premises, which the plaintiff refused to accept, objecting to the title because of the claim of ownership by persons representing themselves to be the heirs of said Parks. The defendant asserted that the title was good . and sufficient, tendered affidavits of adverse possession for twenty years and more, and offered to put the plaintiff in possession.
    Further facts appear in the opinion.

      Kelly & MacBae, attorneys, and William TI. Arnoux and W F. MacBae, of counsel for plaintiff:
    I. Plaintiff is entitled to a good and marketable title, one that is indefeasible and unincumbered, and the defendant’s title is not such a one (Burwell v. Jackson, 9 N. Y. 535 ; Fletcher v. Button, 4 Ib. 396 ; Story v. Conger, 36 Ib. 673 ; Delevan v. Duncan, 49 Ib. 485 ; Piser v. Lockwood, 30 Hun, 6 ; Post v. Bernheimer, 31 Ib. 247; Chamberlain v. Brady, 49 Super. Ct. 484 ; Atkinson Marketable Titles, 2, 3, 379 ; Bostwick v. Beach, 31 Hun, 343). If there is any defect, the purchaser may refuse, however remote the probability of his ever being incommoded thereby (Brooklyn Park Com. v. Armstrong, 45 N. Y. 234). The court will not compel a purchaser to accept a title which is so doubtful that it may expose him to litigation, though the court may believe it to be good (Post v. Bernheimer, 31 Hun, 247). A purchaser cannot be compelled to take a title depending upon adverse possession and parol proof to support it, unless in a case beyond all reasonable doubt (Mott v. Mott, 68 N. Y. 246 ; Hartley v. James, 50 Ib. 38). It is not enough that the vendor has an equitable title which the purchaser may acquire together with the possession and use of the premises (Fletcher v. Button, 4 N. Y. 396 ; See also, King v. Knapp, 59 Ib. 462). To constitute a cloud upon title it is sufficient that there be a deed valid upon its face, accompanied with a chain of title, under such circumstances that a court of equity can see that the deed is likely to work mischief (Fonda v. Sage, 48 N. Y. 173). Anything is a cloud upon a title which is calculated to cast doubt or suspicion upon the title, or seriously to embarrass the owner either in maintaining his rights or disposing of the property (Ward v. Dewey, 16 N. Y. 519). A purchaser is entitled to a marketable title. As a general rule a title which is open to judicial doubt is not a marketable title. A purchaser is not to take a property which he can only acquire in possession by litigation and judicial decision, nor one the possession of which he must thus defend (Shriver v. Shriver, 86 N. Y. 575).
    II. If plaintiff “was not bound to accept ” the title tendered by defendant, and clearly it was not, then plaintiff is entitled to recover back the money paid under the contract, as upon a consideration that has failed (Bruner v. Meigs, 64 N. Y. 515).
    III. “ The right to a good title is not a right growing out of the agreement between the parties, but given by the law—the purchaser being entitled to have a clear title shown, not merely on the ground that it is stipulated for by the agreement, but on the principle growing out of the nature of the contract, that, as the purchaser parts with good money, the vendor shall give in return an estate with a clear title ” {Atkinson Marketable Titles, 379). “ The distinction is not between a title which is absolutely good or bad, but between a title which the court considers so clear that it will enforce its acceptance by a purchaser, and one which the court will not go so far as to declare it a bad title, but only that it is subject to so much-doubt that a purchaser ought not to be compelled to accept it. In short, whatever may be the private opinion of the court as to the goodness of the title, yet if there be -a reasonable doubt, either as to matter of law or fact, a purchaser will not be compelled to take ” (15. 2, 3).

      John W. Pirsson, attorney, and John E. Parsons and John A. Beall, of counsel for defendant:
    I. The plaintiff has utterly failed to show title in the Parks heirs, or that there ever was any possession under the alleged claim.
    II. In order to recover, the plaintiff must show that the title is bad, or at least that it is really doubtful. It may be conceded that the general rule in equity is that a purchaser will not be compelled to take a doubtful title ; but then the doubt must be shown to be real, or, in other words, substantial. This case is, however, very different; the purchaser is the actor; it seeks • to disaffirm and rescind an executory contract, and to recover the deposit paid on the sale. Here it is the duty of the plaintiff to satisfy the court that the title is absolutely bacl. A merely doubtful title will not do (O’Reilly v. King, 28 How. Pr. 408 ; 21 Mich. 351). u The court must govern itself by a moral certainty, for it is impossible in the nature of things that there should be a mathematical certainty of a good title” (Lord Hardwicke, 2 Atk. 20). Unless plaintiff’s objection to the title is sustained, it cannot recover back its part payment of purchase money (Page v. McDonnell, 55 N. Y. 299 ; Lawrence v. Miller, 86 Ib. 131).
    III. If the defendant had brought an action for specific performance upon the facts proved, he would have been entitled to a decree, (a) The title by adverse possession alone is sufficient for such a decree (Murray v. Harway, 56 N. Y. 337 ; Shriver v. Shriver, 86 Ib. 575 ; Sherman v. Kane, 86 Ib. 57 ; Seymour v. Delancey, Hopk. Ch. 436 ; Pratt v. Eby, 67 Pa. St. 396). (5) The objection made to the title is not sufficient to excuse the plaintiff from specific performance. There must be at least a reasonable doubt as to the title—such as affects its value, and would interfere with its sale to a reasonable purchaser, and thus render the land unmarketable. A defect in the record title may, under certain circumstances, furnish a defense to the purchaser. But there is no inflexible rule that a vendor must furnish a perfect record or paper title. It has frequently been held that defects in the record or paper title may be cured or removed by parol evidence (Hellriegel v. Manning, 97 N. Y. 60). There must be some substantial debatable grounds on which the doubts can be justified (Vreeland v. Blauvelt, 23 N. J. Eq. 403). The doubt must be such as would produce a bona fide hesitation on the mind of the chancellor (Kastenbador v. Spotts, 80 Pa. St. 430). If the doubts arise upon a question connected with the general law, the court is to judge whether the general law on the point is or is not settled (Pyrke v. Waddingham, 10 Hare, 1). (c) The plaintiff’s objection in this case was that the heirs of Joseph Parks claimed to be the owners of the property under a chain of title beginning with a deed by Patrick McKay, made in 1818, and ending in a deed to Parks in 1830. It does not go back to the original owner, the sovereign, and it does not appear that there was any possession under such claimed title at any time. The true test of the effect to be given to this objection is, could the parties alleging such adverse title in ejectment, or other appropriate action against the defendant, recover the premises. The defendant’s chain of title is perfect, and the actual possession by him and his predecessors is vastly greater than is necessary (§§ 365, 367, 369, 370, 371 and 372 Code Civ. Proc ; 3 Washburn Real Prop. 144, 114; Ottinger v. Strausburger, 33 Hun, 466 ; Woolsey v. Morss, 19 Ib. 278).
    There can be no question that all persons claiming as the heirs of Parks, are absolutely barred by the statute. Joseph Parks died about March 1, 1837. Where an adverse possession begins to run in the lifetime of the ancestor, it will continue to run against the heir, notwithstanding any existing disability on the part of the latter, when the right accrues to him or her (Jackson v. Moore, 13 Johns. 513 ; Bradstreet v. Clarxe, 12 Wend. 603 ; Peck v. Randall, 1 Johns, 176 ; Fleming v. Griswold, 3 Hill, 85. Becker v. Van Valkenburgh, 29 Barb. 319).
    IV. The fact that the purchaser may be exposed to utterly groundless litigation, will not justify him in refusing to take title, if it is clear that such litigation cannot be successfully prosecuted (Kelso v. Lorillard, 85 N. Y. 177; Belmont v. O’Brien, 12 Ib. 394; Murray v. Harway, 56 Ib. 337; Chase v. Chase, 95 Ib. 373 ; Brooklyn Park Comm. v. Armstrong, 45 Ib. 234 ; Post v. Bernheimer, 31 Hun, 247).
    V. The defendant tendered plaintiff a good title in fee simple, with possession, which it was bound to accept, and upon which specific performance would be decreed. The record claim of title is without a flaw, beginning with the grants of the colonial governors to the town of Harlem, and coming down to the defendant through some sixteen mesne conveyances, beginning with the commissioner’s deed in 1825, and two sales under foreclosure. (6) The title by possession alone is such that specific performance would be decreed. Proof by affidavit of such possession admittedly sufficient was tendered. And upon the trial that possession was clearly proved for upwards of 45 years. Defendant was not bound under the contract to give a marketable title, but if the judgment of the court is that the title is good, it is marketable (Romilly v. James, 6 Taunt. 263; Wrigley v. Sykes, 21 Beav. 337 ; Cruikshank v. Bronson, Sup. Ct. unreported; Belmont v. O’Brien, supra ; Leggett v. Mutual L. I. Co., 53 N. Y. 394). The contract was to give “ a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to it or them, the fee simple of the said premises, free from all incumbrances.” The title means the legal estate in fee, free and clear of all
      valid claims, liens, and incumbrances (Jones v. Gardner, 10 Johns. 265).
   By the Court.—Truax, J.

The parties hereto entered into a contract in writing for the purchase by the plaintiff from the defendant, and for the sale by the latter to the former, of a plot of land situate in the city of New York. On the day fixed for taking title, the defendant tendered to the plaintiff, and the plaintiff refused to take the full covenant warranty deed required by the contract of sale, and demanded from the defendant the money paid on account of the purchase price of the property, and the expenses incurred in searching the title. The defendant refused to accede to this demand, and thereupon plaintiff brought this action to recover the moneys so paid, and the expenses so incurred as aforesaid.

This court has decided that when a party seeks to dis-affirm and rescind a contract of sale and to recover back the deposit paid on account of the purchase price on the ground of a defective title, he must do more than merely show that the title is doubtful, he must satisfy the court that the title is bad, before he can recover (O’Reilly v. King, 28 How. 408).

The ground of plaintiff’s refusal to take title was that the defendant’s title to the property was not a good one, because of a claim of ownership in certain persons who represented themselves to be the heirs of one Joseph Parks; but the undisputed evidence shows that the defendant and his grantors have been in possession of the property for about thirty years under a claim of title beginning in 1825. There is no testimony opposed to this that tends to show possession in any person other than the defendant or his grantors, and there is no evidence that any third person has any valid claim or lien on the property. On the evidence now before the court, a trial judge would be bound to direct a jury to find that the' defendant was the. owner of the property. In the words of Shriver v. Shriver (86 N. Y. 575), the facts of the case make out a continuous, uninterrupted, actual possession, beginning with an entry under claim of exclusive title, founded on a written instrument and kept up for over twenty years {Code, § 369). A clear adverse possession for that length of time makes a title which a purchaser may not refuse to take (16.)

The verdict of the jury is set aside, and judgment is ordered for defendant, dismissing the complaint, with costs.

Sedgwioic, Oh. J., concurred.