author: Duee, J.

text:
    Edward Cobb v. Joseph J. West and another.
    The answer of the defendants stated that the plaintiff had agreed to keep np and support a building belonging to them, and to furnish all the materials therefor, as well as perform the work, for the sum of $200, to be paid when the work was completed. The proof was that the plaintiff agreed for $200 to keep up the building, and leave it well supported.

      Held, that the proof sustained the answer, and that the agreement, by its just in- ■ terpretation, bound the plaintiff to furnish the materials, as well as perform the work. By the agreement proved, the defendants were entitled to stop the work and discharge the plaintiff at any time, paying him for what he had done. This clause was omitted in the answer.

      Held, that as the clause omitted did not vary the obligation of the plaintiff, there was no variance. The defendants not being bound to set forth more of the agreement than was necessary to be proved in order to sustain their defence.

      Held, also, that if the agreement proved only bound the plaintiff to perform the necessary work, his abandonment of the work before its completion was a bar to his recovery.

      Held, also, that even upon this construction of the agreement, the variance between the answer and the proof was not material.
    When a special agreement is set up as a defence in an answer, and is proved upon the trial, a variance from its particular terms, and not its entire scope and meaning, must, under the provisions of the Code, be deemed immaterial.
    Judgment reversed — new trial ordered, costs to abide event.
    (Before Duee, Campbell, and Boswobth, J.J.)
    October, 4; Oct. 28, 1854.
    Appeal from a judgment for the plaintiff entered on the report of a referee for the sum of $671.31. The action was for work and labor done and performed for the defendants at their request, and for lumber and other materials sold and delivered to them, and the complaint demanded judgment for $534, with interest.
    The answer of the defendants denied the allegations of the complaint, and set up as a special defence, that in the month of July, 1853, the plaintiff agreed with the defendants to support and keep (up the building and earth then on the lot the north-west comer i of Murray and Church streets, in the city of New York, during the excavation for the cellars, &c., of the new buildings then commenced or about to be commenced on the adjoining premises, and to furnish all the necessary materials for the price of $200, to be paid when tbe work should be completed, which work, labor and materials, the answer alleged, were the same mentioned in the complaint. The defendants then averred that the plaintiff had faded to perform this agreement, to their damage of $500, for which they demanded judgment. ^
    The cause was referred by consent to John L. Mason, Esq.

      It was proved on the trial before him, that the defendants had engaged the plaintiff to sustain and shore up a budding on the north-west corner of Church and Murray streets: that he entered on the work and performed labor, and feraished materials, which one of his witnesses valued at $400. It also appeared upon the testimony of his own witnesses, that he had abandoned the job for want of means, when it was little more than half completed— and that the residue was performed by a person not employed by him, but who undertook it in the expectation that he could compel the defendants as owners of the budding, to pay him. It also appeared that about two weeks after the plaintiff left the work, the budding fell down, and became a total ruin.
    A witness on the part of the defendants then proved, that at the request of the plaintiff, and of the defendant West, he was present at an agreement relative to some work to be done by the plaintiff, which they told him they had made, and wished him to hear; that he made at the time a memorandum in writing of the substance of their agreement, as it was then stated by them, but that this was not made at the request of the parties, but for the purpose of aiding and correcting his own memory in case he should be called upon. He then produced the memorandum, which was read in evidence, and is in these words:
    “ Mr. Cobb is to keep up the building corner Church and Murray, all the grounds, and all in good order for $200. If Mr. West chooses to stop him at any time, he may do so by paying Mr. Cobb for what he has done. Cobb is to leave the building well supported.”
    The witness said that the memorandum corresponded with his recollection, and that he did not remember that in the conversation between the parties, any thing was said about lumber.
    The referee reported that the plaintiff was entitled to recover the sum of $400, and that the defendants had failed to establish by proof, the agreement set forth in their answer.

      In an opinion wbicb accompanied tbe report, tbe referee stated, that tbe agreement set forth in tbe answer, was for work, labor, and materials, while that proved was for work and labor only; that by the agreement in tbe answer, tbe plaintiff bad an absolute right to do tbe work and furnish tbe material, and claim tbe whole sum agreed to be paid, while by that proved, tbe defendants bad a right to stop him at any time, and discharge him by paying him pro raid. That these variances were in bis judgment material and fatal, and consequently, that tbe defence of a special agreement for a fixed sum, bad not been proved.

      D. D. Field, for defendants, appellants,
    claimed a reversal of tbe judgment upon tbe ground that tbe proof fully sustained tbe defence set up in the answer.

      Radcliffe for plaintiff, respondent,’ contra,
    insisted that tbe variances upon wbicb tbe referee bad relied, were material and fatal. He cited 1 Mees.'Weis. 543; 1 Term. R. 447 ; 3 Caines, 246.
   By the Couet.

Duee, J.

We cannot agree with tbe learned referee in tbe construction wbicb be has given to the agreement which-was so dearly proved, and wbicb be admits to have been proved, on tbe part of tbe defendants, nor can we regard tbe variance between tbe agreement thus proved and that set forth in tbe answer, as at all material. In our judgment, tbe defence set up in tbe answer was fully established.

We think that tbe plaintiff, by agreeing “ to keep up tbe building and leave it well supported” bound himself to supply and use all tbe means necessary to tbe accomplishment of tbe end; and consequently that tbe agreement, although not in express words, yet by its legal and fair interpretation, bound him to furnish tbe necessary materials, as well as perform tbe necessary work. He was to keep up and support tbe building. If this could be done by human labor alone, it was work only that be contracted to perform; but if it could not be done without tbe use of beams and piles, be agreed just as certainly to furnish them, as to perform tbe work. Tbe job wbicb, in tbe language of mechanics, be undertook to finish, was entire, and tbe supply of tbe necessary materials as truly a component part of it, as tbe supply of tbe necessary labor. An agreement to keep up a building which is in danger of falling, bears a close analogy to a covenant to make all necessary repairs, which it has never been doubted, imports an obligation to furnish all the materials that the repairs may require.

Not only is this the construction of the agreement, which in our opinion its words suggest, but we cannot doubt that it was in this sense that it was understood by the parties when it was made. The witness who formed the agreement says that in the conversation of the parties nothing was said about lumber. But if the use of lumber to keep up the building was known to be necessary, and the words of the agreement were understood to comprehend its use, nothing more was necessary to be said; while, on the other hand, if the understanding of the parties was that the defendants should furnish all the materials that the plaintiff might deem it necessary to use, and that the price should be added to the $200 which they stipulated to pay, this understanding was an essential part of their agreement, and we cannot but think would have been expressed in its terms. The silence of the parties, it seems to us, is nearly conclusive proof that such was not and- could not have been their understanding. Had such been the obligation of the defendants, it was plainly just as proper and necessary to be stated as that of the plaintiff; the witness, however, swears that his memorandum comprehended the whole of their verbal agreement.

Again: we think the evidence shows that the plaintiff acted himself upon that construction of his agreement which we adopt. All the timber and other lumber that was used was furnished by the plaintiff himself, or the persons whom he employed, without any previous request of the defendants; for unless such requfest is to be implied from their engaging him to perform the job, none has been shown or is pretended. But if his agreement, as is supposed by the referee, was simply to perform the necessary work, this certainly gave him no authority to supply or purchase the necessary materials, thus taking from the defendants the exercise of their own judgment as to their quality, necessity, and price; if he was not bound to furnish and pay for the necessary materials, they were, and if so, he had plainly no right, without their authority or consent, to furnish or purchase them himself. Hence, in the case before us, which purports to contain all the evidence that was given, the allegation in the complaint, that the plaintiff sold and delivered to the defendants at their request the materials in question, is wholly unsustained by proof. Unless he believed that his agreement bound him to furnish the materials, his doing so was a purely voluntary act, which, without evidence of a prior request, or its subsequent adoption, created no liability on the part of the defendants. The reasonable inference, we think, is, that he acted on the belief that has been stated, since it is this belief alone that furnishes a reasonable explanation of his conduct. If such was not his motive, it still remains true, that upon the evidence before us he has no right to charge the defendants with the cost or value of materials, from the use of which they derived no benefit, and which they neither agreed to purchase n@r authorized him to purchase.

It is said, however, that the construction of the agreement which we adopt does not remove the objection that there is a material variance between the agreement stated in the answer and that established by the proof. The agreement as stated in the answer is absolute, while that proved gave to the defendants the right of stopping the work, and discharging the plaintiff whenever they pleased, thus depriving him of the right of earning by completing the work, the whole sum stipulated to be paid. We think there is no weight in the objection, for although it is true that the answer contains no mention of the provision giving to the defendants the privilege of stopping the work, it is equally so that the omission is wholly unimportant. It is unimportant for the plain reason that it is an omission of a part of the agreement which did not and could not affect or vary in the slightest degree the obligation which the residue imposed upon the plaintiff. Such an omission is not a variance. The defendants were not bound to set forth the whole agreement. It was sufficient to set forth that portion of it which was necessary to be proved upon the trial, in order to sustain their defence, and the construction of which could not be affected by that which was omitted, and this they have done. The answer says that the plaintiff agreed to support and keep up the defendants’ building, and to furnish all the necessary materials therefor, for the price of $200, and that this agreement he failed to perform. Such was his agreement as we construe it, and tbe evidence shows that it was not performed. Where then is the variance ?

There is another view of the case which was pressed upon our attention by the counsel for the defendants, which we held, upon consideration, to be equally fatal to the plaintiff’s right o frecovery; certainly to his right to recover the whole sum for which the judgment has been rendered. Let it be admitted that the plaintiff in agreeing to keep up the building and leave it well supported, agreed only to perform the necessary work; it is certain that until and unless this work should be performed, he was not to be entitled to receive its stipulated price; in other words, his performance of the whole work was a condition precedent to his right to demand a payment for any portion of it. But he did not perform the work; he did not keep up the building and leave it well supported. He abandoned the work, when, according to the testimony of his principal witness, half the job was uncompleted. It has not been shown, nor is it pretended, that his abandonment of the work was justified or excused by any act or default of the defendants. From whatever cause it proceeded it was his own voluntary act. He could not have left the braiding well supported, for when he left it, one half of the work deemed necessary to its support remained to be done; and when the whole was done, the whole was ineffectual. The building fell and was destroyed. If any principle in the law of contracts is well settled, it is, that when a plaintiff seeks to recover for work done upon a quantum meruit, the existence and non-performance of a special contract covering the work are a bar to the action, unless it appears that his performance was waived or his non-performance excused. Then as the contract and its breach are proved, and no waiver or excuse is shown, upon what ground can the plaintiff be entitled to recover ? As we understand the law, there is none.

That he cannot be entitled to recover for his work this view of the case is conclusive to show, and that even upon the same limited construction of his agreement, he is not entitled to recover for the materials he used, has already been shown.

But we are told that if the plaintiff agreed only to perform the necessary work and not to furnish the materials, the variance between the answer and the proof is manifest and fetal. That upon this supposition there is variance cannot be denied, but that under the provisions of the Code, even this variance is to be regarded as material we are far from conceding. It is not a variance that affects the substance of the defence.

The substance of the defence is, that there was a special agreement applicable to the plaintiff’s demand which he had .violated. Such an agreement was proved, and we apprehend it is no objection to the proof that a broader agreement was stated in the answer.

The Court of Appeals has instructed us by its decision in Catlin v. Gunter, (1 Kernan, 368,) that when a special agreement is set up as a defence in an answer, and is proved in its substance upon the trial, a variance in the proof from its particular terms and not from its entire scope and meaning, not only may, but must be disregarded. It is to be deemed and treated as immaterial.

We do not doubt that according to- the technical rules of pleading that formerly prevailed,, the variances upon which the referee and the counsel for the plaintiff have relied, would be adjudged to be fatal. But the Code has abolished all rules of pleading that are merely technical, and under its liberal and benign provisions, it is only those that the interests of* truth and-justice require to be observed that must govern our decisions. Such is now the law, and for ourselves we rejoice that it is so. Whatever may be the defects of the Code, it has at least effected the reform that Lord Mansfield desired. Let its provisions be faithfully executed, and justice will no more “be entangled in the net of form.”

That the agreement which the plaintiff in the case before us made with the defendants was, as his counsel argued, a very imprudent one we do not doubt, nor do we doubt that it was because he found it to be so that he abandoned its performance, but we cannot relieve him from the consequences of a losing bargain, by charging the defendants with the payment of a sum which they never contracted to pay, and for the payment of which, upon no ground of law or equity ought they to be liable. By the terms of his agreement he took upon himself the risk of a loss, and the loss that followed he must be content to bear.

The judgment in his favor is therefore reversed, and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    Nicholas Cottrell v. Henry Conklin.
    The decision of the Court of Appeals in Spies Y. Qillmore, appears to have settled the law, that under no circumstances can an endorsement in blank of a promissory note be converted into a guaranty of its payment by the endorser.
    If in any case evidence for such a purpose may be received, the proof must be direct and positive that such was the agreement, and that an express authority to fill the blank with a guaranty, was given at the time of the endorsement.
    Under an allegation in a complaint that the plaintiff had paid, laid out, <&c., moneys for the defendant, evidence to charge the defendant as an endorser of a promissory note cannot be received.
    Nor can such evidence be received in support of an allegation that the defendant guaranteed the payment of the note. The variance would be material and fatal under § 111 of the Code.
    In an action against an endorser of a promissory note, all the facts necessary to be proved in order to charge him, must be averred in the complaint.
    New trial; with liberty to plaintiff to amend, upon payment of the costs of the action.
    (Before Due it, Campbell, and Bosworth, J.J.)
    Oct. 5; Oct. 28, 1854
    Tbe action was brought to recover the sum -of $3,842.22 with interest claimed to be due from the defendant to the plaintiff.
    The complaint charged, First. That the defendant was indebted to the plaintiff in the sum of $3,697.99, for so much money paid, laid out, and expended for the defendant, and at his request. Second. That P. Gr. Sherman and P. Kryler, partners, under the firm of Sherman & Kryler, were indebted to the plaintiff on certain promissory notes made and delivered by them to the plaintiff, and amounting to the sum of $3,697.99, and that when these notes were about to become due, the defendant agreed that if the plaintiff would deliver the same to Sherman & Kryler, and take from them new notes for the same amount, he, the defendant, would guarantee to the plaintiff the payment of such new notes; that the plaintiff in pursuance of this agreement did deliver to Sherman & Kryler their promissory notes then held by him, and received from them five new notes made by them for different sums, and payable at different periods, and that the defendant in pursuance of his agreement did then and there guarantee to the plaintiff the payment-of the said, new notes, and endorsed and placed Ms name on each of said notes as sucb guarantee. The complaint then, after describing particularly the new notes, averred that when they became due and payable, they were not paid either by Sherman & Kryler or by the defendant, and that they were still due and unpaid.
    Lastly. The complaint then alleged that the defendant was indebted to the plaintiff in the sum of $144.23, as a balance due on certain acccounts between them, and claimed judgment for the aggregate sum of $3,842.22, besides interest, and charges of protest-
    The answer denied absolutely the first cause of action. Second. Denied that the defendant ever agreed that if the plaintiff would surrender to Sherman & Kryler the notes first mentioned in the complaint, and take new notes for the amount thereof, he,, the defendant would guarantee to the plaintiff the payment of such new notes, averred that although SheTman & Kryler did deliver to the plaintiff the notes secondly mentioned in the complaint, he, the defendant, did not guarantee the same for the amount thereof, or for any amount, and did not endorse or place his name on all or any of them as guarantee for the payment thereof to the plaintiff. That the defendant did endorse certain notes, which, as he had understood and believed, were paid by the plaintiff, who was the payee therein, to the bank in whose hands they were, and that such payment was made by him in consequence of his obligation to do so, as between himself and the defendant.
    The answer then averred in substance that all the notes so endorsed by the defendant, and which were the same mentioned in the complaint, were endorsed by him at the request, and for the accommodation of the plaintiff, and subject to the plaintiff’s responsibility as payee and first endorser; that in respect to the two first notes mentioned in the complaint, he, the defendant, had never received any notice whatever that the same were dishonored or unpaid, or that in any way whatever he would be held liable therefor; and that the fifth note was given in renewal of a note previously endorsed by the defendant, at the request and for' the accommodation of the plaintiff, and wMch the plaintiff was unable to take up at its maturity.
    The answer then admitted the defendant’s indebtedness for the balance of $144.23 claimed by the complaint, but denied that the plaintiff was entitled to any judgment beyond that amount.

      There was a reply to tbe answer, denying that the notes were endorsed by the defendant for the accommodation of the plaintiff, and reaffirming the allegation that the endorsement was a guarantee. '
    The cause was tried upon these pleadings, before Bosworth, J., and a jury, on the 10th June, 1853. The five notes mentioned in the complaint were proved on the trial, marked 1, 2, 3, 4, 5; each of them was signed by Sherman & Kryler, and was payable to the plaintiff or order three months after" date. No. 1, dated 17th March, 1850, for $799.19, endorsed Henry Conklin, Nicholas Cottrell. No. 2, dated 29th June, 1850, $1,023.78, endorsed, Henry Conklin, Nicholas Cottrell. No. 3, dated 3d April, 1850, for $341.8, endorsed Nicholas Cottrell, Henry Conklin. No. 4, dated 17th April, 1850, for $966.40, endorsed Nicholas Cottrell, Henry Conklin, Nicholas Cottrell. No. 5, dated 29th April, 1850, endorsed same as No. 4, for $566.74. P. G-. Sherman, who, as a witness for the plaintiff, proved the execution and delivery of the notes, also proved the execution and delivery by his firm, Sher-' ■man & Kryler, to the defendant, of an assignment and mortgage which were read in evidence upon the trial, but the contents or purport of which it is deemed unnecessary to state, as they have no relation to the grounds upon which the cause was ultimately decided. The witness then said, that after this assignment the credit of his firm was not good, and that the plaintiff refused to take their paper without an endorser. That they then asked the defendant to endorse their notes, to be given to the plaintiff for lumber which he had sold to them. That the defendant wrote his name on the notes at his, witness’s house, and that he gave them to the plaintiff, and that the notes were not paid when they became due by his firm, or by the defendant. The witness also stated as his impression and belief, that the notes in suit were given in renewal of former notes given to the plaintiff by his firm without an endorser. The residue of the testimony of this witness is omitted as not bearing on the points decided. Other witnesses were examined whose testimony is omitted for the same reason. The cashier of the Farmers’ and Merchants’ Bank, Middletown, New Jersey, proved that notes 1, 2, 3, were discounted for the plaintiff at that bank, and not being paid when they became due, by the makers or by the defendant, were taken up by the plaintiff. Nos. 4, and 5, were not discounted, but merely deposited by tbe plaintiff for collection.
    Tbe defendant’s counsel admitted due service of notice of protest of all tbe notes except tbe two first, and objected to tbe evidence that was given to prove tbe service of notice of tbe dishonor of these as insufficient in law. Tbe court overruled tbe objection, and tbe counsel excepted. Tbe evidence so objected to ⅛ omitted for tbe reason already given.
    When tbe plaintiff rested, tbe defendant’s counsel moved that tbe complaint should be dismissed upon several grounds, and among them tbe following: that tbe evidence did not sustain tbe complaint. Tbe complaint seeking to charge tbe defendant as a guarantor of tbe notes in question, while tbe evidence established that be was an endorser only.
    Tbe Judge denied tbe motion, and tbe counsel excepted to tbe decision.
    Tbe defendant offering no evidence, tbe court directed a verdict to be taken for plaintiff for $4,615.46, subject to tbe opinion of the court at General Term upon all the questions of law arising in tbe case, either upon tbe pleadings or tbe evidence, with liberty to tbe court at General Term, to dismiss tbe complaint or to correct tbe amount of the verdict if necessary, if a judgment should be ordered for tbe plaintiff.

      J. W. Edmonds, for tbe plaintiff,
    moved for judgment on tbe verdict. He insisted that under tbe count for money paid, laid out, .and expended, tbe notes endorsed by tbe defendant, supposing him to be liable only as endorser, might properly be given in evidence, and that tbe circumstances proved, relative to tbe time, manner, and motives of tbe delivery of the notes, were conclusive to show that there was a contract by which tbe defendant was to be liable to tbe plaintiff as first endorser. He cited in support of this part of bis argument, Butler v. Wright, 2 Wend. 369 ; Bishop v. Hayward, 4 Yerm. R. 471; Britton v. Webb, 2 B. & Gr. 480; Gbitty on Bills, 8th Amer. Ed. 567; Bayley on Bills, 5th Ed. 330. Tbe learned counsel further argued, that if under tbe complaint, tbe defendant could not be charged as an endorser, tbe decisions justified him in saying that upon tbe evidence be might very properly be treated as a guarantor, since, there are many cases that show, that where a third person puts his name on the back of a note before its delivery to the payee, he makes himself liable as a surety for the maker, (8 Pick. 122, 24 id. 641,) and when the endorsement is made to give credit to the maker, and under an agreement that the endorser shall be liable to the payee, it turns the contract into a guaranty, and where the endorsement is in blank such a contract may be written over it. (Campbell v. Butler, 14 John. 849; Herrick v. Carman, 12 John. 159.)
    Lastly, the counsel insisted that should the court be of opinion that the plaintiff upon the evidence could not be made liable as guarantor, nor under the complaint as framed be made liable as first endorser, the court should then allow the complaint to be now ¿mended, although no motion for that purpose had been made on the trial, so as to enable the plaintiff to recover against the defendant as an endorser; and he accordingly moved that-such an amendment be made. The power of the court to order the amendment could not be doubted. There were numerous cases to show the existence of the power and the propriety of its exercise. The counsel referred, among many others, to the following authorities. (6 Cow. 40; 7 Cow. 517; 1 Rawle, 149; 1 Wend.. 92; 5 Conn. R. 265; 5 Wend. 112; 6 Cranch. 206.)

      G. Wood, and J. Graham, for defendant,
    insisted that the exceptions taken on the trial ought to have been allowed, and particularly that the motion for dismissing the complaint upon the ground that the plaintiff’s evidence had failed to establish a guaranty, ought to have been granted. No motion had then been made to conform the complaint to the proof, nor could such an amendment then have been made; nor could it now be made, since it would change the entire structure of the complaint, and substantially the nature of the action: such an amendment was not within even the large powers given to the court by the Code, §§ 169, 171, 173. Where a party is sued as guarantor, and the proof shows that he is only liable as án endorser, there can be no recovery, and the court had no discretion but to dismiss the complaint. The counsel then contended at large, that even were the complaint amended as desired, and treated as having been so amended on the trial, the evidence then given was wholly insufft-cient to render tbe defendant bable as an endorser to tbe plaintiff. Upon tbe actual evidence neither tbe jury nor tbe court could be authorized to say that tbe defendant meant to be bable otherwise than as second endorser, nor consequently to be bable to tbe plaintiff at ab.

       The signature of Nicholas Cottrell in every instance had a line drawn over it.

   By the Couet.

Campbell, J.

It is plainly only as a guarantor of tbe notes in question, that tbe complaint seeks to charge tbe defendant, and tbe first question therefore, is whether tbe evidence upon tbe trial was admissible; and if admissible, was sufficient to establish bis babibty as such — and we are clearly of opinion that it was not.

"We think that tbe decision of tbe Court of Appeals in Spies v. Gilmore, (1 Coms. 321,) fobowing that of tbe Court of Errors in Hall v. Newcomb, (7 Hill, 416, note p. 426,) has settled tbe law that when a person endorses in blank a promissory note, even with tbe intent of making himself personaby bable to tbe payee, tbe contract of which bis act and name are evidence, is an endorsement in tbe full legal sense of tbe term, and cannot, either by construction of law or by proof of extrinsic facts, be converted _^into a guaranty, or any other or different contract whatever. Tbe payee, when be has any right of action against him which be seeks to sustain, must sue him as an endorser, and must aver in bis complaint and prove upon tbe trial ab tbe facts necessary to charge him, as such. We assent entirely to tbe observations of Justices Bronson and Jewett, that tbe doctrine which tbe earlkr cases strongly favored, that tbe endorser of a promissory note may, under certain circumstances, be charged as maker or guarantor, and tbe guarantor as maker or endorser, stood upon no ground of principle, and must now be regarded as corrected and exploded. (Bronson, J., 1 Corns. 324; Jewett, J., 2 Corns. 548.) It is true that tbe doctrine appears stib to be followed in other states of tbe Union, but it is certainly no longer tbe law in this.

Admitting, however, that there are cases in which, without contravening tbe decisions to which I have referred, parol evidence, for tbe purpose of converting a blank endorsement into a guaranty, may stib be admitted, we think it cannot be doubted that tbe evidence which is to have this effect must be direct and positive tbat sucb was tbe agreement of tbe parties at tbe time, and tbat an express authority to fill np tbe blank witb a guaranty was tben given. Here there is no snob evidence, and nothing resembling it. Tbe defendant was asked to endorse tbe notes, and be did endorse them, and there is not tbe slightest reason to suppose tbat in so doing be meant to incur any other obligation than tbat of an endorser. Whether be meant to be liable as such to tbe plaintiff is a different question, not necessary now to be considered. We are told, however, tbat although tbe proof upon tbe trial-may not have been sufficient to charge tbe defendant as a guarantor, it was amply sufficient to warrant a recovery against him as an endorser; but tbe objection to this view of thé case is unanswerable; tbat under tbe complaint as framed tbe proof relied on ought not to have been received at all, and tbat tbe Judge, even bad a motion for tbat purpose been made, bad no power so to amend tbe complaint as to render tbe proof admissible.

Tbe supposition tbat tbe proof could be received in support of tbe allegation in tbe complaint, tbat tbe plaintiff bad paid, laid out, and expended moneys, corresponding in amount witb tbe notes, at tbe request and for tbe benefit of tbe defendant, we cannot, for a moment, hesitate to reject. Whether, as tbe law was formerly understood, in an action by an endorsee, against an endorser of a promissory note, tbe note could be given in evidence under all or any of tbe money counts in a declaration, it is useless to inquire. It is sufficient to say tbat under a money count in a complaint, tbe proof cannot be received without repealing tbe provisions of tbe Code, in tbe construction tbat we have invariably given to them. Tbe proof cannot be received unless we bold tbat it is no longer necessary to set forth in a complaint tbe facts constituting tbe cause of action, but tbat tbe conclusions of law from those facts, may, witb entire propriety, be substituted. To bold this, would, in our judgment, render tbe provisions of tbe Code a mockery and a snare.

It is manifest tbat tbe endorsement of a note is no proof whatever tbat tbe bolder bad in fact advanced or expended moneys for tbe benefit of tbe endorser, and it was not so properly by a conclusion, as by a fiction of law, tbat it was ever so considered. If tbe allegation in tbe complaint before us, tbat tbe plaintiff had: expended money for the benefit of the defendant, is to be considered, as it must be, as the averment of a fact, it is an averment that so far from being sustained, was contradicted by the proof. We know that the notes were not delivered to the plaintiff to secure or satisfy a debt due to him from the defendant, but that the sole consideration' of the delivery was a debt due to him from the makers. We must now repeat what on several occasions we have felt it necessary to say, that in every action founded on a promis-, sory nóte, the note itself or its contents must be set forth in the complaint, and that when the action is against an endorser, all the facts necessary to be proved on the trial in order to charge him as such, must be distinctly averred. (Lord v. Cheesebrough, 2 Sand. S. C. Rep. 696; Garvey v. Fowler, id. 668; Adler v. Bloomingdale, 1 Duer, 601.)

It follows from what has now been said, that if the notes endorsed by the defendant were admissible in evidence at all, they -were only so in support of the allegations in the complaint that the defendant had agreed to guarantee their payment, and the objection then is, that the, variance between the allegations and the proof was material and fatal — a variance which the Judge could not disregard, and had no power to correct; and such is clearly our opinion. Notwithstanding a partial resemblance, the .differences between a contract of guaranty and a contract of endorsement are so wide and essential, that it is impossible to say that the allegation of the one contract as the cause of action is sustained by proof of the existence of the other. In such a case, the variance from the allegation is, in the words of the Code, not “in some particular or particulars only, but in its entire scope and meaning,” (Code § 171;) and the Judge may properly dismiss the complaint on the ground of “the failure of the proof” necessary to sustain the action. As in the case before us, the Judge on the trial could not under § 169 of the Code have ordered the complaint to be amended by inserting an allegation of the facts necessary to charge the defendant as an endorser, so we have not the power to order this amendment under § 173, since its effect would be to change substantially both the claim and the defence. Our meaning is, that we cannot order the amendment so to be made as to enable the plaintiff to retain the present verdict, but that setting aside the verdict, we may permit it to be amended upon terms, we do not doubt, but these terms must be the payment of all the costs that have accrued since the service of the summons — as the case stands, there must be a new trial, but the plaintiff has liberty to serve an amended complaint within twenty days, upon the terms that have been stated.


author: Boswohth, J.

text:
    Eno v. Del Vecchio and Snyder.
    In an action of tort against several persons, it is erroneous to preclude either defendant, absolutely, from being sworn, as a witness for the other. The relevancy or competency of any evidence proposed to be given by him, must be determined when it is offered. It is not impossible, in the nature of things, for him to give evidence which would exonerate his codefendant, but which would not affect the question of his own liability.
    If the owner of two adjoining lots erects buildings upon them, with a wall partly on each, to be used as a support to both buildings, which is necessary to furnish such support, and which is used for that purpose from the time of its erection, a conveyance of either house and lot, with its appurtenances, grants an easement for the support of the house so conveyed, in so much of the wall as stands on the other lot.
    After such a grant, and a continued use of such party wall to support both buildings for more than twenty years, neither can remove the wall, nor so deal with \ it as to render it an insufficient support for the other’s building, without his consent. If he does, he is liable for the injury caused thereby.
    If either wishes to improve his own premises before the party wall has become ruinous, or incapable of further answering the purposes for which it was erected, he may underpin the foundation, sink it deeper, and increase, within the limits of his own lot, the thickness, length, or height of the party wall, if he can do so without injury to the building on the adjoining lot And, to avoid causing such injury, he may shore up and support the original party wall a reasonable time, to excavate and place a new underpinning beneath it. But he cannot interfere with it in any manner without the consent of the owner of such building, unless he can do so without injuring the building.
    When such a building, at the time it is injured by repairing the adjoining one, is leased for a term unexpired, to a tenant who has covenanted to surrender at the end of his term, in good condition, reasonable wear excepted, the landlord can only recover damages for the injury to the structure itself. He cannot recover any thing by reason of its enjoyment being made less beneficial to the tenant.
    He is entitled to full indemnity for the injury caused to the reversion
    (Before Dunn, Campbell, and Boswobth, J.J.)
    Oct. 6; Oct. 28, 1854.

      This action was tried in December, 1853, before Chief Justice Oakley and a jury, and under specific instructions, a verdict was found for tbe plaintiff, which was taken subject to the opinion of the court, at General Term, upon the questions of law arising in the case.
    The complaint stated that the plaintiff was possessed of, and owned in fee, the lot and dwelling-house 496 Broadway, in the city of New York.- That this house and the one next south of it, (No. 494,) were erected over twenty years prior to the acts complained of, hawing the dividing wall, between the two, standing partly on each lot, and that such wall supported the beams of each house, and had been so used in common, from the time the buildings were erected. That such wall with its foundation, the plaintiff was enjoying and had a right to enjoy. That defendants knowing the premises, but contriving to injure the plaintiff, did, in June 1852, “wrongfully, carelessly, and unskilfully, and without giving to the plaintiff any notice thereof, and unknown to the plaintiff, remove, break away, and tear down, and procured to be removed, broken away, and tom down, large part or parts of said foundation and wall, and also dug, and made, and procured to be dug, and made certain excavations in the earth on said adjoining lot under and near to the said foundation and said wall, by reason whereof the ground and soil under said foundation and wall, and upon which they rested, and by which they were supported, were loosened, weakened and disturbed, and said founda-. tion and wall were thereby greatly weakened, injured, shaken, and damaged, and suffered, and caused to settle and sink down.”
    And the plaintiff by the said act, by and on the part of the said defendants, was disturbed in the use, benefit and enjoyment of the said foundation and wall, and deprived of the support of his said house, and his said house was greatly injured, damaged, and weakened, to the damage of the plaintiff in the sum of five thousand dollars.
    The defendants appeared by different attorneys, and answered separately. The answer of Del Vecchio, as to some of the allegations of the complaint, stated that he had no knowledge or information sufficient to form p belief, and also contained these allegations, viz.: •
    “ And this defendant further says that it is true, and he admits that at or about the time last mentioned, he did cause and procure to be made, as he lawfully might, certain excavations in the lot of land then and now possessed by him, this defendant, and which lot adjoins the said lot, No. 496 Broadway, which excavations were made under and near to that part, and only under and near to that part, and so much of the said foundation and wall as were built and erected on the said lot of land possessed by this defendant. And this defendant further says that- the said excavations were, and each and every one of them, was made in a careful and skilful manner, and that the plaintiff had due notice of the intention of this defendant to cause such excavations to be made a reasonable time before the same were made.
    “ And this defendant denies that the plaintiff had any right of user in the said foundation and wall, or in either of them in common with this defendant; but this defendant avers that he, this defendant, had the right to the sole use and enjoyment in sever-alty of that part, and so much of the said foundation and wall, and of each of them as were built and erected in the said lot of land so as aforesaid possessed by this defendant.”

      Snyder's answer was in part thus: “And this defendant further says, that at the request, and by virtue of the employment of James B. Del Tecchio, he dug and made excavations in the earth, in doing and making certain alterations and repairs on the lot and premises known as the No. 496 Broadway, and laid and built a wall on such premises, No. 494 Broadway, up to and as a support to so much of the said partition wall_ as stands on the No. 494 Broadway; and he says he did the same carefully, cautiously, and prudently, and in a skilful and workmanlike manner, and that if any damage or injury was thereby done, or suffered, or sustained, by the said premises known as No. 496 Broadway, it was the .result of unavoidable accident, and without any fault on the part of this defendant, who in- doing the work herein mentioned, acted under and by virtue of a contract made with, and the employment of James E. Del Tecchio, one of the defendants herein, who had lawfully right and authority to make such alterations and perform such work on the said premises, No. 494 Broadway.”
    The allegations of the complaint not met by the above aver-ments, were put at issue by his answer.

      It was proved that these buildings were erected together in 1818, by a Mr. Lawrence, who then owned the land on which both stood. They had been repaired bnt not altered since they were built. The plaintiff had become the owner in fee of 496, and the defendant, Del Yecchio, was the lessee of 494. The latter, in June, 1852, made extensive alterations in 494. He cut away the waff in 494, and to such extent that the partition wall settled; whereby the front and rear walls of 496 were cracked, from top to bottom, the floors settled, the gas and Croton water fixtures were misplaced, and there was evidence tending to show that the party wall had been so much weakened, that it would be necessary to construct a new one, in order to sustain properly, the beams of 496. The mason’s work, necessary to be done in making the alterations, was done by Snyder. There was evidence by both parties upon the question, whether the work was done with proper care and skill to avoid injuring 496. There was evidence tending to show, that the damage to the front and rear walls of 496, amounted to $350, and that it would cost $600 to erect an entire new party wall. It appeared that the plaintiff had leased 496, for five years, from May 1st, 1851, at the yearly rent of $1,500. The lessee covenanted to “ surrender the premises at the expiration of the term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.” He gave security for the performance of the covenants on his part, contained in the lease.
    During the progress of the trial, each defendant offered the other as a witness. • Such witness on the objection of the plaintiff’s counsel, was excluded, and the defendant excepted to the decision of the court. After the jury was empannelled, and before any evidence was given, the counsel for the defendant Del Yecchio moved for judgment on the ground that the complaint does not state facts sufficient to constitute a cause of action; because, 1st. There is no sufficient averment that the wall in question was a party wall. The allegation that it was an ancient wall is not sufficient; there should be some allegation of a grant or covenant running with the land. 2d. There is no allegation that the part or parts of the foundation and wall claimed to have been tom down, was or were on the lot of the plaintiff. 3d. The allegation as to the digging of the excavations on the defendants’ lot constitutes no canse of action. The defendants bad a perfect right to excavate as much and as degp as they pleased on their own lot, being answerable only for negligence, and there is no averment that the excavations were carelessly and negligently made. Which motion was denied, and the counsel for the defendant Del Vecchio duly excepted.
    When the evidence was closed, the counsel for the defendant"^ Del Yecchio moved the court to direct the jury to find a verdict for the defendant Del Yecchio, on the ground that it appeared that the work was done by the employees of the defendant Snyder; that the relationship of master and servant did not exist between the defendant Del Yecchio and the men who did the work, and he is not responsible for their negligence; which motion was denied, and the counsel for the defendant Del Yecchio excepted.
    The counsel for the defendant Del Yecchio requested the court to charge the jury: 1st. That if Snyder did the work under a contract with Del Yecchio, and the work was done by Snyder’s employees, Del Yecchio is not liable for their negligence, and the jury must find for him. 2d. That as to the underpinning, the party who did the work had no right to cross the line between 494 and 496. 3d. That Del Yecchio had a right to cut down the wall, dig out the cellar, and underpin the wall on his own premises if he chose to do so, and would be responsible only for the negligence of his own immediate employees. 4th. That the wall in question is not in view of law a party wall. 5th. That the defendants were not bound to give the plaintiffs notice of their intention to cut down and underpin the wall. The court refused so to charge the jury, and the counsel for the defendant Del Yecchio excepted. > ,
    In behalf of defendant Snyder, the court was requested to charge the jury; 1st. That if the jury should find for the plaintiff, he is only entitled to nominal damages, as there is no evidence to show what part of the injury applies to the reversion after the expiration of the term of the lessee. 2d. That there must be such an act as is tortious, in which both parties concurred, before they can find for the plaintiff in this joint action. 3d. That as the plaintiff has a covenant to repair by the tenant, with security, the plaintiff can have sustained no injury in consequence of any of the acts complained of. 4th. That the mason was under no obligation to give notice of the doing of the work; that if there was any such obligation it rested with Del Vecchio; and Snyder cannot be held responsible. The court refused so to charge, but did charge the jury, that if they should find that the plaintiff had no notice or knowledge of the intention of the defendant to move or interfere with the party wall in question, and that the plaintiff, by having had notice, could have saved himself from injury, the defendants, notwithstanding they might have done the work in question with all skill and diligence, are liable to the plaintiff for any injuries sustained, by him in consequence of not having given them notice of the intended alterations. And that the jury would distinguish in their verdict the amount of damage to the party wall (as it was called) from the damage to the other parts of the building; and in assessing the damages would not take into the estimate any injuries sustained by the tenant, by any interruption of his business, or any other inconvenience, but will confine themselves to the expense of repairing the injuries done to the walls of the house. To which the- counsel for the defendant excepted, — to the refusal of the Judge to charge as requested, and also to the charge as given.
    The jury found a verdict for the plaintiff, and assessed the damages for injuries to the front and rear wall at the sum of $350.
    And also assessed the damages for the erection of a new party wall at the sum of $600.
    The Judge ordered the verdict to be entered, subject to the opinion of the court at General Term, and that in the mean time judgment be suspended.

      0. A. Nichols, for plaintiff.

      George W. Stevens, for Del Yecchio.

      H. Brewster, for defendant Snyder.
   By the Comtr.

Boswohth, J.

That each defendant is a competent witness for his codefendant, in an action of tort, has been expressly determined by the Court of Appeals. (Beals v. Finch, et al. 1 Kernan’s R. 128.)

That action was tried after § 397 of the Code was amended by the act of 1851. The decision in Beals v. Finch, is therefore conclusive, as to the right of each defendant, in this action, to examine his codefendant as a witness in his own behalf. The relevancy or competency of any evidence proposed to be given by a codefend-ant, can only be determined at the trial. In this case the witness was absolutely excluded, and for aught the court can know, it was in the power of each, to prove by the other, matters pertinent and material to the issues joined in the action. There must, therefore, be a new trial, because neither defendant was permitted to testify for the other.

The most important question in the cause, as it is now presented, is that which relates to so much of the charge to the jury, as stated the liability of the defendants resulting from not notifying the plaintiff of the defendants’ intention to interfere with the party, wall. The charge as given, withdrew from the consideration of the jury, the question, whether the repairs were done in a skilful and careful manner, so as to avoid any unnecessary injury. It assumed that the work had been done with care and skill. The jury were instructed “that, if they should find that the plaintiff had no notice or knowledge of the intention of the defendant to move or interfere with the party wall in question, and that the plaintiff by having had notice, could have saved himself from injury, the defendants, notwithstanding they might have done the work in question, with all skill and diligence, are liable to the plaintiff for any injuries sustained by him, in consequence of not having given him notice of the intended alterations.”

We all concur in the opinion, that there is nothing in this part of the charge of which the defendants can complain. We have no doubt, that in any view of the rights and liabilities of the parties that can properly be taken, the plaintiff was at all events entitled to notice, and if that was not given, he is entitled to recover such damages, as upon the receipt of it, he might have avoided by reasonable care and precaution to protect and support his building.

It is obvious, however, that this rule may not be the one by which the liabilities of the parties must be tested on the facts, as they may possibly appear on a new trial. A notice to the plaintiff may possibly be proved by testimony, available to both defendants. And the facts may appear to be such, as will present the question, whether either defendant had any right to interfere with the wall at all, without the plaintiff’s consent, unless he could do so without injury to the plaintiff’s building.

Although the plaintiff and Del Yecehio severally owned in fee, so much of the wall as stood upon his own lot, yet if each had an easement in the residue of the wall, for the support of his own house, or if the wall was one coming within the proper description of a “party wail,” it would seem to be well settled, that neither can remove it without the consent of the other.

It is not essential in order to constitute a division wall such a party wall, that the owners of the adjoining lots should own the wall as tenants in common, nor that they should own in undivided moieties the land on which it stands. Nor is it necessary that there should be a covenant between the owners of the adjoining lots, severally binding them, their heirs and assigns, that the division' wall shall be and remain a party wall. If the owners of adjoining lots on building upon them, erect by common consent, a division wall partly on the land of each, at their joint' expense, for the purpose of supporting both buildings, and which is essential to such support, and so use it for over twenty years, the wall becomes a party wall within the proper meaning of that term. So if one person owns both lots and erects buildings on both, with a wall standing partly on each lot, for the purpose of supporting both buildings, and which is necessary for their support, and subsequently, while that wall is continuing to be so used, conveys one house and lot by metes and bounds, and by boundaries, one of which runs through the centre of said wall, the grant will carry not only an absolute title to the premises specifically conveyed, but will also pass as an appurtenance to the grant, an easement in the residue of the division wall, for the support of the house granted.

We think a reference to adjudged cases will show that these principles are well settled.

In Campbell v. Mesier, (4 J. Ch. R. 334,) Chancellor Kent decreed that the owner of a lot on which a party wall, in part, stood, should contribute to the expense of erecting a new wall in place of the old one, which had become so decayed and ruinous as to be incapable of being partially removed and repaired. It does not appear in the report of that case, under what circumstances or agreement, verbal or written, that party wall was erected. But it does appear, that the owners of the two contiguous lots did not own the land on which it stood, in undivided moieties, but that each owned in severalty a part of such land. As no allusion is made to any such fact, it is just to infer, that the rights and liabilities of the parties did not depend upon any covenant relating to the wall, and running with the land. The wall is spoken of and treated as an ancient walk What is meant by an ancient wall will be considered presently.

In Sherrod v. Cisco, although unnecessary to the decision of that case, yet without any apparent doubt as to its accuracy, Justice Sandford declared that neither party could remove such a wall without the other’s consent. If he could not do that, it is obvious that without the other’s consent he could not do any thing to it which would unfit it for the purpose for which it was built, and had been continuously used.

In Brown v. Pentz, (in the Court of Appeals,) McCoun, J., the only judge, of those voting for affirmance, who is known to have written an opinion, says that “ the principles which govern between the owners of walls built under that act, (14 Geo. III., ch. 75,) in relation to their rights and liabilities, are equally applicable where a wall of that description has been erected by agreement between the 'owners of adjoining lots. They are principles of natural justice which result from the nature of the interest or ownership in a party wall. Such a wall, standing partly on the land of one, and partly on the land of the other, does not, it is true, constitute a tenancy in common between them, because each owns in severalty to the dividing line of their respective lots, and therefore each of the house owners has a separate property in a moiety of the party wall, and an easement for the support of his house in the other moiety; so that it has been held that one of them may maintain trespass against the other for pulling down so much of the party wall which stands upon his land. (Matts v. Hawkins, 5 Taunt. 20; Gibbons on Dilapidations, 4,110 ; vol. ii., Leg. Ob., p. 24.)

It may be said that these remarks were obiter dicta, and were not pertinent to any question necessary to be decided in the proper determination of that case. Still the propositions are stated without qualification, and, so far as is known, without the dissent of any member of tbe court, and as being in conformity ■with the principles of natural justice and well settled law. The decisions to which he referred speak for themselves.

The case of Bradbee v. Christ's Hospital, 4 Man & Granger, 714, 760, 761, is in point upon this question. There was a reference in that case to a barrister, of various issues, who made a special award. He found (among other things) the plaintiff’s messuage to be an ancient one, and that “the carelessness, negligence and unskilfulness of the defendants, their agents and workmen, in and about the underpinning of the party wall, consisted in their underpinning the said party wall partially, and not underpinning the whole of the said wall, whereby the plaintiff’s house' sunk and sustained damage.”

The court said: “ Both parties seem to have assumed before the arbitrator, that the party wall belonged one half to the plaintiff and the other half to the defendant, and he was not requested to state any question for the opinion of the court upon that point. He has, according to the request of the parties, raised a question as to the liability of the defendants in respect of injury arising from their underpinning only their own half’ of the party wall, by stating that the carelessness, negligence and unskilfulness' for which he has given damages, consisted in their underpinning their own half of the party wall only. How, there is not, amongst the.numerous objections taken to this award, any one distinctly complaining of that assessment of damages. Assumr ing, however, that the point is raised for the consideration of the court, we are of the opinion that the defendants had no right to undeiprin ’the party wall, either partially or wholly, unless that could be done without injuring the plaintiff’s house. It may, indeed, be doubtful whether the plaintiff had a several interest in that half of the wall which was next to his house, or whether he and the defendants were tenants in common of the whole; but, in either event, an action on the case was maintainable against the defendants in respect of the injury which resulted from their mode of dealing with it.” See Com. Dig. Estates, K. 8; Cubitt v. Porter, 8 B. & C., 257; 2 M. & R., 267.

According to the decision just referred to, each of the owners » of • two contiguous lots, having an .ancient party wall erected . partly on each lot, for the purpose of sustaining the houses standing on both, has an easement fox the .support of Ms own house in so much of the wall as stands on the lot of the other. Neither has any right to underpin the party wall, either partially or wholly, unless it can be done without injuring the other’s house. And if underpinned in such a manner as to injure it, the one doing the act is liable for the injury.

This corresponds with the rule declared in Sherrod v. Cisco, that neither can pull down such a wall without the other’s consent, and is in accordance with the law on this point, as stated by McCoun, J., in Brown v. Pentz.

TMs wall has been erected and used as a wall to support, both buildings for a period of thirty-three years. When built, both houses and the lots on wMch they stood belongéd to the same person. This'wall was essential to the support of each building.

Story, J., in the case of the United States v. Appleton, 1 Sum. 500, says: “ The general rule of law is, that when a house or store is conveyed by the owner thereof, every thing then belonging to, and in use for the house or store, as an incident or appurtenant, passes by the grant. It is implied from the nature of the grant, unless it contains some restriction, that the grantee shall possess the house in the manner, and with the same beneficial rights as were then in use and belonged to it.” “Whatever are properly incidents and appurtenances of the grant, will pass without the word appurtenances.” (Id. 503.)

One incident to the house, and indispensable to its support and enjoyment, and an integral part of it in a case like the present, would be the party wall which hath been built for the express purpose of sustaining it. The rights of such a grantee,' aS between him and Ms grantor, or any one to whom he might subsequently convey the other house and lot, would seem to be as extensive and absolute, as those of either of the owners of two contiguous lots who erect a party wall partly on the lot of each, by the consent of both and at their joint expense, for the purpose of supporting buildings on both lots, and use it for such purpose during a period of time sufficient, where the possession is adverse, “to perfect a title. A party wall built to be used as such, and in fact used as such for more than twenty years, by the express permission and continuous acquiescence of the owners of the 'land on wMch it stands, is an ancient wall, within the meaning of the word “ ancient,” as applied to lights, ways, foundations, &c., which are treated in law as' being ancient lights, ways and foundations. Wright v. Freeman, (5 Harris & J. 477.)

Accordingly, Park B., in Hide v. Thornborough, (2 Car. and Kir. 250,) held, that “.if the plaintiff has enjoyed the support of the land of the defendant for twenty years to keep up his house, and both parties knew of that support, the plaintiff had a right to it as an easement, and the defendant could not withdraw that, support without being liable in damages for any injury that might accrue to the plaintiff thereby.” That was a case where the plaintiff and defendants owned adjoining lands, and the house of the plaintiff had for more than twenty years been supported by the adjoining land of the defendant, who dug a foundation for some intended buildings so near .the house of the plaintiff that it fell.

Chancellor Walworth, declared the same rule in Lasala v. Holbrook, (4 Paige R., 173.) After deciding that “where a person, in the exercise of ordinary care and skill, in making an excavation for the improvement of his own lot, digs so near the foundation of a house on the adjacent lot as to cause it to crack and settle, he will not be liable for the injury, if such excavation would not have injured the lot in its natural state,” he proceeds to say: “There is another class of cases, however, where the owner of a building on the adjacent lot is entitled to full protection against the consequences of any new excavation or alteration of the premises intended to be improved, by. which he may be in any way prejudiced. These are ancient buildings, or those which have been erected upon ancient foundations, and which by prescription are entitled to the special privilege of being exempted from the consequences of the spirit of reform operating upon the owners of the adjacent lots; and also those which have been granted in their present situation by the owners of such adjacent lots, or by those under whom they derive their title.” Palmer v. Fleshees, (1 Sid. 167;) Cox v. Matthews, (1 Vent. 237-239;) Story v. Odin, (12 Mass. Rep. 157;) Brown v. Windsor, (1 Cromp. & Jer. Rep. 20;) Some of the cases cited by the Chancellor, relate to the obstruction of lights, and are, therefore, authorities for his propositions, only so far as the two subjects are analogous. But Brown v. Windsor, is a case in point.

• The rules to be extracted from all tbe cases, and from tbe dicta of judges of what tbey regarded as undoubted law, so far as tbey are necessary to .be stated to meet tbe questions tbat may arise in this case, would seem to be these:

I. If tbe owner of two adjoining lots erect buildings upon them, witb a wall partly on eacb, to be used as a support to botb buildings, and wbicb is necessary to fumisb sucb support, and wbicb is used for tbat purpose from tbe time of its erection, a conveyance of either bouse and lot witb its appurtenances, grants an easement for tbe support of tbe bouse so conveyed, in so much of tbe wall as stands on tbe other lot.

TT. After sucb a grant and a continued use of sucb party wall to support botb buildings more than twenty years, neither can remove tbe wall, nor so deal witb it as to render it an insufficient support for tbe other’s building without bis consent. If be does, be is bable for tbe injury caused thereby.

IU. If either wishes to improve his own premises before tbe party wall has become ruinous, or incapable of further answering tbe purposes for whieh it was erected, be may underpin the foundation, sink it deeper, and increase within the limits of his own lot tbe thickness, length, or height of tbe party wall, if be can do so without injury to tbe building on tbe adjoining lot. And to avoid causing sucb injury, be may shore up and support tbe original party wall, a reasonable time, to excavate and place a new underpinning beneath it.

IV. But be cannot interfere witb it in any manner, unless be can do so without injury to tbe adjoining building, or without tbe consent of tbe owner of sucb building. Whether in sucb a case, be can raise tbe whole party wall higher, or whether any additional elevation must be wholly within tbe limits of bis own lot, it is unnecessary now to decide.

Unless these rights are necessarily incident to sucb an ownership in sucb a party wall, it is difficult to say on wbat principle either owner has any valuable right or privilege in it. If either may pare off so much of tbe wall as is upon bis own lot, notwithstanding it may so weaken tbe residue of tbe wall tbat it cannot stand, or if either may excavate under so much of tbe wall as is upon bis own land, though tbe necessary consequence be, tbat so much of tbe wall as is on tbe other lot will fall; then it follows that a purchaser from the owner of both, does not acquire by a grant of one house and lot, with the appurtenances, a right to the use of all that is absolutely indispensable to the enjoyment and security of the house built, although it was in use as a part of the house at the time the house was granted.

If either may, as a matter of strict right, take down or pare off so much of the wall as is on his own lot, although the residue must necessarily fall, or will be undeniably insufficient to support the adjoining building, then it is out of the power of the latter to protect himself, even if he have notice. Notice may enable him to shore up his building, until he can erect a new wall wholly on his own land, but it will not enable him to sustain his own half of the wall; and make it strong enough to uphold his building, when it is itself incapable of standing after the other half has been pared off or taken down.

The owner of a lot, having a building with independent walls standing wholly upon it, is entitled to notice from the owner of an adjoining lot, who intends to build on the latter, and so improve it, as to make it necessary for the security of the former house, that it should be shored up and supported, during the progress of the work. The one giving the notice, even in such a case, is also bound to exercise care and skill in improving his own lot, and for any injury resulting to the other from a breach of that duty, he will be liable.

I see no middle course in such cases, between holding, either that one of the owners of two adjoining buildings, having such a party wall for the support of both, cannot remove or impair the stability of the wall without the other’s consent; or that each has as absolute and exclusive a dominion over so much of the wall as stands on his own lot, as he would have had, if it had been erected as a separate and independent wall. If the latter rule be adopted, it must also be held, that although the owners of adjoining lots erect buildings upon them, with a party wall for the support of both, standing, by common consent, one half on each lot, and by agreement built at joint expense; yet, the day after they are completed, or after the wall has stood and been used, as a party wall, long enough to justify the presumption of a grant where the possession is adverse, either may take down so much of suet wall as is on Ms own lot, alttougt as an inevitable consequence, tte otter talf must fall.

Tte latter doctrine is repugnant to natural justice and equity, and I have not found any authorities wtict sanction it. Tte contrary doctrine is in accordance witt tte most obvious principles of justice and good faith, and witt express decisions, and is supported by tte opinions of eminent jurists expressed wittout tesitation or qualification, and does not interfere witt eitter parly in making any kind of improvements upon tis own lot, wMct do •not involve a breact of duty to, or tte practice of bad faitt towards the otter.

Tte case now before us, does not stow, whether Isaac Lawrence died seized of the house and lot now owned by Del YeccMo, or whether he conveyed it in tis lifetime. If he conveyed it in tis lifetime, the terms of tte grant may have a controlling influence upon the question whether this wall is to be regarded as a party wall, witMn tte meaning of tte decisions to wMct reference has been made. Tte terms of tte grant may be suet as to preclude those claiming it, and also tis grantees of 496 Broadway, from claiming any easement in so much of tte wall as is not conveyed to them respectively, or they may expressly declare it to be a party wall — or the premises witt the appurtenances may be conveyed by metes and bounds wtict run one of the boundary lines through the centre of the wall.

Isaac Lawrence died seized of the lot now owned by tte plaintiff. It was first conveyed to the plaintiff and John J. Phelps, in January, 1844, by tte administrator of the deceased. By what authority the conveyance was made does not appear. If this wall stall appear not to be a party wall, within the proper meaning of that term, still the plaintiff would be entitled to notice of the intended alterations — or if due notice was not given, to recover suet damages as he was subjected to by reason of not having tad notice.

If it stall appear to be suet a party wall, and if the alterations made by the defendants were made wittout tte plaintiff’s consent, tte defendants will be liable to suet damages as have been- occasioned by their manner of dealing witt tte wall.

Tte jury, besides assessing tte damages resulting from the injuries to tte front and rear walls of tte plaintiff’s house at $850, also assessed tlie damages for the erection of a new wall at the sum of $600.

With reference to the last item, as the case now appears, we cannot give any more definite direction than to say, that if the plaintiff shall show himself entitled to recover, he will be entitled to such sum as will put him in the state in which he was before the injury.

If the wall shall be made to appear to be a party wall, it may also appear that as it is now left, it is in a condition to support securely the plaintiff’s building, and that the cost of properly inserting the beams, and restoring the house to as good a condition as it was in before the alterations were made, will be much less than the cost of erecting a new wall. What particular directions should be given to enable the jury to find the proper compensation, can be more accurately stated at the trial, when the facts may appear quite different from those presented in the case now before us.

If the plaintiff is entitled to recover, he is entitled to be indemnified to the full extent of the injury occasioned to the reversion.


author: Duer, J.

text:
    Oliver Beirne and another v. Claudius Dord.
    The decisions of the Court of Appeals in Kargous y. Stone, and Beirne Y. Dord, 1 Selden, 75, id. 95, have settled the law that the mere exhibition of a sample by the seller of goods at the time of the sale, is not sufficient to create a -warranty, that the bulk of the goods corresponds in quality and soundness with the sample.
    Henee, if upon the trial of an action to recover damages for the breach of a warranty in the sale of goods, nothing more is proved than the exhibition of a sample at the time of the sale, it is the duty of the court to dismiss the complaint.
    If upon such evidence, and no other, the question whether a warranty was intended by the parties should be left to the jury, a verdict in favor of the plaintiff would be set aside as contrary to law.
    It seems that the question whether a warranty was intended, depends in all cases upon the facts that occurred at the time of the sale, and upon those alone.
    Judgment of nonsuit affirmed, with costs.
    (Before Dues, Campbell, and Boswonra, J. J.)
    October 9; October 28, 1854.
    This was an appeal by tbe plaintiff from a judgment of non-suit, and was heard upon a bill of exceptions.
    The action was commenced before the Code, and was brought to recover damages for the breach of an implied warranty in the sale of goods by sample.
    The declaration averred that the defendant sold to the plaifr-tiffs 27 bales of blankets, containing 1,850 pairs, at the price of:' $8.10 per pair, by samples, and undertook and promised that all,the blankets in the bales were of the like goodness - and, quality-with the samples exhibited. It averred a breach of- this-warranty, from the unsound condition of the blankets when; sold,. to. the damage of the plaintiffs of $4,000.
    The defendant pleaded the general issue..
    Upon a former trial of the cause, in December, 1848, before Sandford, J., the plaintiff obtained a verdict for $1,131.08 damages, which the court at General Term refused to set aside, (vide 2 Sand. S. C. Rep. 89, 791.)
    Erom the judgment entered upon this-verdict the defendants appealed to tlie Court of Appeals, when tlie judgment was reversed, and a new trial ordered, (vide 1 Seld. 95, 106.)
    The trial so ordered took place before Campbell, J., and a jury, on the 16th May, 1858.
    The counsel for the plaintiff called as a witness John Reed, who testified as follows:—
    I am a merchant; I do business with Mobile, but reside in New York to buy for the Mobile market part of the year; I called with Mr. Burnside on the defendant to purchase French blankets; when we went in we asked for blankets, we asked for French blankets; I do not recollect what was said between the parties. There were two or three pairs of French blankets shown to us on the table or counter, which was used for exhibiting goods. These were all we saw; we called twice, the day before and on the day of the purchase; we presumed we saw the same blankets both days. The purchase was concluded on the 28th September, 1844. I have no recollection of any body saying where the bales of blankets which we bought by the sample were; I have no recollection whether Mr. Burnside asked where the bales were. The samples were in good condition; they were sound. I saw no damage on them; they might have been somewhat soiled by handling, but they were sound. The terms of sale were six months; the price was $3.10 a piece. There were twenty-seven bales, each bale containing fifty pair. I think the samples were on the table before us during all the time of the traffic; Mr. Burnside examined the samples, I have no recollection of the words used. The purchase was in the usual way. Mr. Dord offered to sell the blankets at a certain price. What was said during the purchase I do not recollect, but the purchase was in the usual way. The goods were to be paid by a note at six months, payable to the order of Beirne and Burnside, and Dord was to ship them to New Orleans. As soon after that period as the merchandise could arrive, and information from New Orleans could reach New York, I saw a letter to Beirne and Burnside stating the damage to the blankets; I was afterwards the bearer of a note from Beirne to Dord at Mr. Burnside’s request. After reading the note, Dord answered that the blankets were sound when shipped, and if moth-eaten, they must have become so on board the vessel. I cannot say when the note was handed to me by Beirne, but it "was between tbe time of tbe receipt of tbe letter from New Orleans and tbe 20tb January, 1845. I can’t say bow soon after bearing from New Orleans I banded tbe note to Dord, but it could not bave been immediately. I kept no copy of tbe note; I went to Mobile on tbe 20tb January, and I must bave delivered tbe note before tbat day, and there I remained until tbe middle of April. Blankets are packed in bales wbicb axe closely pressed. Tbe object of pressing is to save freight, and in tbe next place to keep them free from damage. If opened, they would be more bable to insects, if any in its vicinity, and get damaged, than if kept baled. If once opened tbe bales can be repacked as well as before, if they were to go to tbe trouble and expense of repacking by steam or bydraubc press.
    Tbe witness was then cross-examined, and testified:
    I saw a gentleman when I went with Mr. Burnside to buy tbe blankets in question, whom I supposed to be Dord. I never saw him before, but bave seen him since. It was Mr. Dord. His clerk went in for him; be came and showed us blankets, and offered to 'sell them. I do not know what articles of merchandise be dealt in. Tbe person I took to be Mr. Dord was present when Mr. Burnside bought.
    Please to 'state to tbe jury what was said by Mr. Dord upon tbe occasion, according to your best recollection.
    Dord brought us tbe blankets; be said they were cheap; be urged us to buy; be said be would sell them at tbat low price because be wanted to close tbe consignment. I considered them as cheap as any blankets we bad seen in tbe market; they were tbe cheapest we bad bad offered to us of tbe same quality. They were considered lower than any others tbat we bad seen, and Mr. Burnside bought them. I can’t say bow much lower they were than other blankets; I don’t recollect what other blankets we bad looked at, but bad seen some samples of others selling at auction. "We went round to several importing bouses to look at blankets. I do not know where tbe bales were when we looked at tbe samples; we asked no questions about tbe bales. Burnside ordered tbe bales to be sent to tbe ship Union; I do not know on what day they were sent; Mr. Dord sent a bill of lading to Beirne and Burnside; be also sent them an invoice of tbe goods ; I mean be sent tbe sale note or bill of parcels tbat is usually rendered to the purchaser. The ship’s receipt was not sent. I haye no recollection of any thing being said by Mr. Dord to us, or of any question being asked by us as to whether the bales corresponded with the samples; I haye no recollection that the word warranty or any word of any such import was used.
    No other evidence was given concerning the facts that occurred at the time of the sale; the testimony of all the other witnesses who were examined relating only to the unsound and damaged condition of the blankets. When the plaintiffs rested, the counsel for the defendant moved for a nonsuit, on the ground that there was no evidence of any warranty or fraud, or of a sale by sample importing a warranty. •
    The Judge granted the motion, and the counsel for the plaintiffs excepted to his decision.

      R. J. Dillon, for the plaintiff,
    argued in support of the exception, and contended that the question whether the sale was a sale by sample, implying a warranty, ought to have been submitted to the jury. He referred to Sands v. Taylor, 5 John. R. 395; Sweet v. Colgate, 20 John. 197; Andrews v. Kneeland, 6 Cow. 440; Beebe v. Roberts, 12 Wend. 410; Williams v. Stafford, 8 Pick. 250, and many other cases, as sustaining his argument.

      F. B. Cutting, contra,

    relied.upon the decisions of the Court of Appeals in Hargous v. Stone, (1 Seld. 95;) and Beirne v. Dord, (id: 95.) as conclusively showing that the nonsuit was proper and necessary.
   By the Cottet.

Duer, J.

We may believe and regret, that the recent decisions in the Court of Appeals upon which the counsel for the defendant relies, are at variance with the law as now understood in England, and in most of our sister states, and as it was formerly understood in this city, not only By the mercantile community, but generally speaking, by the members of our profession. But the law as settled by the court of ultimate jurisdiction, is that which we, as a subordinate court, are bound to follow, and we shall never permit our personal views or feelings to interfere with the discharge of this paramount duty.

The former judgment of this court in this cause was reversed in the Court of Appeals, and a new trial ordered; and the Judge upon the second trial, understanding that in the opinion of the Court of Appeals, the evidence on the part of the plaintiff was wholly insufficient to maintain the action, felt himself hound to dismiss the complaint. If we give the same construction to the decision of the Court of Appeals, we are equally bound to affirm his judgment.

It is true that our former judgment was reversed in the Court of Appeals upon the ground that the Judge, who tried the cause, in his charge to the jury, laid an undue stress upon the proof that had been given of a general usage in the sale of blankets, but it is impossible to read the opinions of the two learned Judges, (Justices Jewett and Gardiner,) with whom their brethren concurred, without being satisfied that, in their judgment, had the proof of usage been wholly rejected, there was no evidence on the part of the plaintiff that could warrant a recovery. Gardiner, J., expressly says, that had not the jury been misled by the charge of the Judge as to the usage “they could not have found a verdict for the plaintiff;” plainly meaning, that there was no evidence that could justify and sustain such a verdict. (1 Sel-den, 106.)

It is admitted that the evidence in the case now before us, is exactly the same as in the bill of exceptions upon which our former judgment was reversed. Not a single additional fact occurring at the time of the sale, has been proved. And it is upon the facts then occurring, we are now instructed that the question whether a warranty was intended, in all cases, depends.

And these material and alone material facts are thus briefly stated by Mr. Justice Gardiner: “ The plaintiff called at the store of the defendant, and asked for Erench blankets: two or three pair were shown to him. He called again, and saw the same. Plaintiff neither asked for the bales, nor was any thing said about them; the blankets exhibited were sound. Defendant agreed to sell, and the plaintiff to buy; and this was the whole of it.” The learned Judge then adds: “The mere showing of the blankets at the time of the sale was not of itself an agreement to sell by sample; in other words, to warrant the goods; and yet this was the whole transaction.” We are wholly ignorant of the force of language, or the learned Judge meant to say that “the whole transaction” afforded no proof whatever of the existence of the agreement which the complaint averred, and the plaintiff was bound to prove.

We deem it needless to pursue the discussion. We cannot be mistaken in holding that the decisions of the Court of Appeals in Hargous v. Stone, and in Beirne v. Dord, (1 Selden 73, id. 95,) have settled the law, that the mere exhibition of a sample by the seller of goods, never creates a warranty that the bulk of the goods is of the same quality as the sample, and it is a necéssary consequence of this rule, that if upon the trial of an action like the present, nothing more is proved to have occurred, at the time of the sale, than the exhibition of a sample, it is the duty of the Judge to say, that the plaintiff is not in law entitled to recover, and, consequently, to dismiss his complaint. When nothing more is proved, it would be absurd to submit to the jury the question, whether a warranty was intended, when their verdict, if rendered for the plaintiff, would be set aside, as contrary to law.

The judgment at Special Term dismissing the complaint is affirmed with costs.


text:
    Samuel Purple v. Hudson River Railroad Company.
    A right of aetiou for injuries to the person is not assignable even when the injuries involve a breach of contract.
    The Code has made no other alteration in the law on this subject, than to permit an assignee to maintain an action in his own name where the cause of action is assignable at law or in equity.
    But the'provisions of the Code as last amended, are not limited to demands arising upon contracts, excluding all founded on torts.
    Every demand founded on a violation of the rights of property, real or personal, is assignable, and only those torts are excluded that die with the person.
    Judgment for the defendants upon a demurrer to the complaint affirmed, with costs.
    (Before Dueb, Campbell, and Bosworth, J.J.)
    October 10, 1854.

      Appear from a judgment for the defendants upon a demurrer to the complaint.
    The complaint and demurrer are in these words:
    The plaintiff complains of the defendants, and shows to the Court that the defendants are a body corporate, duly incorporated under the laws of the State of New York, and keeping an office for the transaction of business within the city of New York, and were •engaged in the transportation of passengers in cars, upon a railroad running from the village of Greenbush to Chambers street, in the city of New York. And at'the times hereinafter mentioned, owned said railroad and the cars running thereon, and had owned and employed steam engines to draw said cars to 81st street in said city, and horses to draw said cars from 81st street to Chambers street aforesaid, and had, and employed agents and servants to manage and conduct the said cars and the drawing the same as aforesaid.
    And this plaintiff further avers, that Minerva Purple did, on the 17th day of August, 1858, take passage in a train of cars so run by said defendants, to be carried from Greenbush to Canal street, in the city of New York, which is one of the usual intermediate stopping places of said train, and paid to said defendants the fare charged by them for such transportation; and the said defendants, in consideration thereof, then undertook to carry the said Minerva Purple to Canal street aforesaid, in their said cars, and there to land her. And the plaintiff further avers, that the said defendant did not land the said Minerva Purple at Canal street aforesaid, in compliance with their said contract and agreement, in a proper and reasonable manner, or otherwise than is hereinafter set forth.
    And this plaintiff further avers, that in the course of such transportation, the said Minerva Purple being in the proper place, and in the car in which she was directed to be by the agents of said defendants, and while landing at Canal street in a proper manner, and in pursuance of the directions of said defendants’ agents and servants, was violently thrown from said car into the street, upon the pavement; that said car started suddenly ahead while said Minerva Purple was landing therefrom, and before a proper and reasonable time had been allowed her to land, by which start she was thrown as above mentioned. And he further avers, that her being thrown as above mentioned, was caused wholly by the neg ligent, careless, and unskilful conduct of the servants and agents of said defendants, and without any fault or negligence on the part of said Minerva Purple.
    And the plaintiff further avers, that the said Minerva Purple was seriously injured by being thrown as aforesaid; that her thigh-bone, at or near the neck, was thereby broken and will never unite, so as to render the same serviceable; that she suffered great pain in consequence thereof, and was confined to her bed nine weeks, and is still unable to walk or use her left leg, and has been obliged to procure medical attendance and nursing, and to expend large sums of money, and that she was thereby, in other respects, severely bruised and injured in her body, and greatly alarmed in mind..
    And the plaintiff further avers, that the said Minerva Purple has heretofore by assignments, duly executed, under her seal, and for good and valuable consideration, assigned to the said plaintiff all her claim, demand, and cause of action against the defendants, by reason of the premises, and that he is now the lawful holder and owner thereof. Wherefore, &c.
    The defendants demurred to this complaint upon the following grounds:—
    1. That it appears from said complaint that there is a defect of parties to the action, in that Minerva Purple ought to be the plaintiff therein, in the stead of the said' Samuel S. Purple, the latter not appearing from the complaint to have any valid cause of action against these defendants. ■
    2. That the complaint does not state facts sufficient to constitute a cause of action in the plaintiff against the defendants, in that the alleged claim, demand, and cause of action of the said Minerva Purple, are not the legal subject of an assignment by her to the plaintiff.
    Mr. Justice Hoffman in allowing the demurrer at Special Term gave the following opinion:
    Hoffmah, J. — I do not find that the common law rule that a mere demand for damages to the person arising out of a tort is not assignable, has been overthrown. The case of Robinson v. Weeks, (6 Howard, Pr. Rep.,) in which the authorities are reviewed, settles indeed that a right of action for a tort in taking and converting personal property may be assigned; and the case put in Knight v. Quarles, (2 Br. and Bing.,) of injury horn careless driving of a stage-coach shows that an executor might sustain the suit. But I have not found a case going further than this.
    The court in Robinson v. Weeks, admit that the law is clear, that the right to damages for mere personal torts, such as assault and battery, slander, &c., dies with the person.
    Does the allegation of a contract with the defendants, to deliver her safely, vary the case? Of course it is the implied contract arising from their situation as carriers on the road.
    Justice Harris, in Hodgman v. The Western Railroad, (7 Howard, P. R. 492,) allowed a demurrer in a case entirely similar to the present.
    In Flinn v. The Hudson River Railroad Company, (6 Howard, 310,) he approves of the view of Justice Johnstone in Clor v. Mallory, (1 Code Rep. 310,) that though a contract may be involved in the action, it is really founded on the misfeasance or negligence of the defendants.
    I think this view is correct, and that judgment must be for the defendants on the demurrer.
    6r. I Betts, for the plaintiff,
    in moving for a reversal of the judgment, insisted that the cause of action upon which the complaint was founded, arose out of contract, and that its assignment was therefore legal, and the action properly brought in the name of the assignee. He cited Knight v. Quarles, (2 Brod. and Bing. 102,) Baker v. Liscor, (7 T. R. 171,) and Slater‘v. Baker, (2 Wils. 359.)

      W. Fullerton, contra,

    argued that although a contract was.involved, yet the real cause of action was for a tort, and therefore was not assignable. He cited 6 How. P. R. 161, id. 308; 7 How. P. R. 492.
   By the Court.

Duer, J.

It is evident upon reading this complaint, that the injuries to the person of M. Purple, as caused by the negligence of the servants of the defendants, are the gravamen, for which the damages claimed are sought to be recovered. The contract with the company is stated merely by way of inducement, as giving a more aggravated character to the negligence charged.

That a right of action for injuries to the person does not survive to an executor, is quite certain, and we agree with Mr. Justice Paige, (Hoyt v. Thompson, 1 Selden, 347,) that we find here the proper test of the assignability of a chose in action. It may be assigned if it would survive, and not otherwise.

It seems to be the opinion, from the cases brought before us, of many members of the profession, that the Code has abolished the distinctions that formerly prevailed, and that every right of action, no matter from what cause it may arise, is now assignable, so as to enable the assignee to maintain the action in his own name, in all cases whatever; but this is certainly an error, and is the very error which the addition made to § 111 of the Code, in the amendments of 1851 was designed to correct. The only alteration made by the Code, is to enable the assignee to maintain the action in his own name, in. those cases, and in those only, in which, by the law, as it existed when the Code was adopted, the right of action was assignable in law or in equity. The common law offences of champerty and maintenance are not wholly obsolete.

On the other hand, as the Code has not enlarged, neither has it restricted, the power of assignment; for we wholly dissent from the construction that some judges seem disposed to give to § 111 as amended in 1851, namely, that it is limited to demands arising out of contract, and forbids by implication the assignment of any founded on a tort. We hold, that every demand that is connected with a right in property, real or personal, and which claims redress for a violation of the right, is assignable, whether the violation is, technically speaking, a tort, or simply a breach of contract. And we think that this rule is a legitimate, if not a necessary deduction from the opinion of the Supreme Court as delivered by Cowen, J., in the case of the People v. Tioga C. Pleas (19 Wend. 73). The rule thus stated excludes only those torts that are so strictly personal, that they die with the person, and it corresponds exactly with the views of Mr. Justice Paige in Hoyt v. Thompson.

The demurrer in the case before us, as the cause of action stated in the complaint, is for a tort strictly personal, is well taken, and the judgment appealed from is therefore affirmed with costs.

       The decision of the Court of Appeals in the recent case of McKee v. Judd, appears to have settled the law in conformity to the above opinion. (Rep. McKee v. Judd, 2 Kernan, 622.)