author: By the Court—Robertson, J.

text:
    John R. Terry, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellants.
    1. In an action by the owner of leasehold premises, for damages for an injury thereto, without malice, and from a cause which could be ascertained and its continuance prevented at a moderate expense, it is error to estimate the damages at the difference between the value of the lease before and after the injury.
    2. In an action against a municipal corporation for injuries arising from a defect in a building within the corporate limits, their title is not sufficiently proved by evidence of a sign upon it, designating it as “ Primary School Ho. 11,” and that such sign had been on it ten years, and that it was used for a public school during that time.
    3. The Corporation of the City of Hew York are not liable either as the creators or as the continuers of a nuisance resulting from defects in a public school building. The Board of Education, and not the Corporation, are the erectors and custodians of those buildings.
    4. Hor are the corporation, as owners of the Croton aqueduct, liable for injuries which arise from defects in the lateral service pipes inserted by consumers of water in the main street pipes of the aqueduct.
    5. One who suffers injury by a defect in water pipes upon premises adjoining his own, cannot recover damages therefor without evidence of original defects in the pipes, or of want of care in discovering or repairing known defects.
    (Before Robertson and White, J. J.)
    Heard, March 4;
    decided, October 5, 1861.
    Appeal from a judgment entered on the report of a referee.
    The plaintiff in this case was the assignee of a term in certain premises in the Oity of Hew York, which were injured by the flow of water upon them from a neighboring lot, which had on it a building with pipes for furnishing Croton water, which leaked. The damages complained of, consisted of a reduction thereby of the value of the premises in question, expenses in pumping and bailing out the water, the loss of rent and indemnity to a tenant for the untenantability of the premises. The Referee, to whom all the issues were referred to be tried, gave judgment for the plaintiff, awarding $1,400 damages for the expenses in abating the quantity of water, and nearly $3,500 damages for the reduction in value of the premises, based upon the difference between the original purchase money and the proceeds of a sale of them, and a supposed reduction in rent, to which rate of damages exceptions were taken.
    The lease of the premises held by the plaintiff was from Trinity Church, and would expire in March, 1863. The hurtful water appeared in July, 1856, and continued for eight months, when the source of injury was discovered in the leak in the service pipe of a building-two doors off.
    The only evidence of ownership of the building where the defective water pipes were, consisted of the testimony of plaintiff and a Mr. Stump, which was to the effect that it was known and designated as “Primary School Mo. 11,” and had stood there more than ten years; that such designation was on the building, and it was used as a public school during that time.
    Motice was given by the plaintiff to the Croton Aqueduct Department; when the water first appeared, they sent some one to inquire into it. Motice was also given to the Ward School Commissioners.
    The cause was tried before L. W. Goddard, Esq., as Referee, who reported in favor of the plaintiff.
    The only fact found by the Referee, was that the plaintiff as owner of the premises in question, had sustained damages from the want of care of the defendants in the use of Croton water upon certain premises of theirs in their building. Exceptions were duly filed to the report, and after judgment on the report the defendant appealed to the Court at General Term.

      Henry H. Anderson, for appellants.
    I. The Referee erred in refusing to dismiss the complaint.
    1. Mo evidence was given connecting the defendants with the premises or property, nor any showing- any obligation or duty resting’ upon them in connection therewith, nor any showing’ negligence on their part.
    II. If defendants be liable, the Referee erred in allowing to the plaintiff the amount of $1,388.91 for money expended, and labor and services, and for loss of rent.
    III. He erred in allowing $3,462.93 for depreciation in value of the premises.

      William Ware Peck, for respondents.
    I. Plaintiff was the owner of the premises flooded. The- report finds the fact, and is conclusive. There was no opposing evidence on the point, and the exceptions admit the fact.
    II. The service pipe in question belonged to, and was used with the school premises—the latter belonged to defendants. The report is conclusive as to this, as the evidence is not in conflict. The evidence that the school premises were used for some 10 years as a “ Public School,” designated on the building as “Primary School Wo. 11,” was competent to show ownership in defeudants, as the premises coidd not be used for a “Public School” unless by public authority,
    Mo objection was taken to the competency of the evidence, and not being contradicted, it was sufficient. Again, the fact that the service pipe was repaired by the Croton department, is prima facie evidence that the premises belonged to, and were maintained by defendants, and as one of the Public Schools of the city.
    The School Act of July 3, 1851, has no tendency to exempt them from responsibility, but the reverse. (Davies’ Laws of N. Y. relative to the City of New York, p. 1043, § 2, subd. 1, 8, 9, 11 ; § 3, subd. 1 ; § 6, § 10, subd. 5 ; §§ 14, 15, 16, 19, 25.)
    Defendants own the school property. It .is purchased, used and maintained for defendants and out of its funds.
    The Board of Education could not be sued for the injury in question.
    A judgment against the Board of Education could not be enforced. The Board has no property which an execution could reach, nor any funds which it could apply.
    III. A municipal corporation is liable for the care and management of its property after it has received the works from the contractor, and for defects existing after that time which originated under the contractor, the consequences of which transpire after the reception of the work;—upon the principle of adoption.
    IY. The defendants, as standing in the position of private owners, are responsible for any injury directly resulting from negligence and want of care in the management and use. The law implies that it originates in willfulness or neglect. The Eeferee has found that the injury in question arose from the neglect of the defendants, in the use of the Groton water upon their premises, and the principle of liability for such nuisance applies to the case. (Hay v. Cohoes Company, 2 Comst., 159.)
    Y. Plaintiff was entitled to recover for the damage which directly resulted to him from the nuisance. The Eeferee has strictly adhered to this principle, and the facts found by him upon the subject are conclusive.
   By the Court—Robertson, J.

I think the error committed in the rule of damages adopted by the Eeferee, would be a sufficient cause for sending this case back to a new trial. Injury from a cause which could be ascertained, and the continuance of which could be prevented at a moderate expense, was not to be compensated for by a difference in the value of the lease, which might or might not have originated therefrom, particularly where there was evidently no malice.

But I think an error was committed in holding the defendants liable at all; their active intervention to produce the injury was not established, nor even their ownership of the building. A mere sign on a building, or even the use to which it is applied, much less its reputation, is no evidence that the building was one whose title was required to be in defendants. (2 R. S., 5th ed., p. 154, § 256.)

But even if the title to the land were in the defendants, and the buildings upon it were a public school and its appurtenances, that fact alone would not make them liable, for they have neither the right to erect any such buildings, nor any control over them or any public school property, after they are erected. The care and control of them, or such property, is vested in the Board of Education, and all suits in relation to such property must be brought in their name. (Laws of 1851, p. 727, § 2, subd. 1 ; Laws of 1853, p. 635, §§ 14, 11, amending Laws of 1851, p. 747.) The safe keeping of such property is committed to the ward trustees, (Laws of 1851, p. 740, § 10, subd. 1,) who alone have power to repair and alter it, and have the exclusive'care and management of the school as long as it is used for such purposes. (Laws of 1854, p. 241, § 10, subd. 2, as amended.) The city corporation cannot even sell the land until a majority of the ward school officers and the Board of Education determine that it is no longer to be used for a school house. (Laws of 1851, p. 748, § 27.) They have, therefore, neither the ordinary rights of enjoyment of owners, while they hold the land and it is used for a school house, nor can they control or repair any part of it during that time, or even dispose of it, so as to get rid of all responsibility. They, therefore, cannot be made liable as the continuers of a nuisance.

Uor can the defendants be made liable as the creators of a nuisance. The ward officers procure the sites and erect buildings thereon for public school houses, and the plans of them are to be advertised for and approved by the Board of Education. (Laws of 1851, p. 747, §§ 23, 24.) • The necessary expenditures are to be reported to the supervisors of the county, who are to raise the money and pay it into the city treasury, out of which it is to be again paid to the Board of Education, who disburse it. (Laws of 1851, p. 744, §§ 3, 16, as amended by the Laws of 1854, p. 240, § 3, subd. 1.) The only privilege given to the Common Council is to anticipate, by a loan, the raising of the money by taxation. (Laws of 1851, p. 749, § 28.) The defendauts have not, therefore, by law, any right to select the land or prescribe the kind of building, or determine what fixtures there shall be in it when first erected; they can do nothing except have the title thrust upon them and pay the money required. There certainly can be no presumption, therefore, that they created any nuisance by insufficient water-pipes; nor can the Board of Education or ward officers be considered, in any sense, their agents; all have equally separate duties to perform, for any neglect of which they are responsible. The defendants are but naked trustees without power to intermeddle with the subject of the trust, even to preserve it, much less to prevent any injury to others by its use.

The defendants, therefore, can neither buy nor sell the land on which public schools are built; cannot control their use; and have not the custody of them. They did not erect nor can they repair them or their appurtenances, all of which matters are in the hands of other public bodies. So far as the insertion of any insufficient water pipes in such buildings or the erection of a nuisance on the land is concerned, they are as irresponsible as if the acts causing the injury had been done by a trespasser. The Board of Education and ward school officers are in possession of the land for school purposes, under the statute, for a term coeval with its occupation for a public school, and the defendants would be trespassers if they attempted to eject them or insert or repair water pipes against their consent. They are therefore not liable as the creators or continuers of a nuisance.

It is claimed, however, that the defendants are liable as owners of the Croton Aqueduct, deriving emolument from its use, and the case of Bailey v. The Mayor, &c., of New York, (3 Hill 531 ; S. C., on appeal, 2 Den., 433,) is cited as in point. It must be recollected, however, that the negligence in that case had been practised in the construction of the main works of the aqueduct, and the defendants were made responsible as the owners thereof, and representing those who were to be benefited thereby, but the injury in this case arose from defects in the lateral service pipes; these are inserted in the main street pipes by private individuals at their own cost and risk, to bring the water into their own premises for consumption, and they remain the property of such individuals. In such case the defendants are no more liable for the result of an imperfection in their construction than for those of vessels in which citizens might carry the water from the reservoirs if they were public fountains. The defendants are trustees of the water as an article of public consumption, and are bound to furnish it to all who desire to use it under proper regulations, but they are not bound to supervise the insertion of service pipes or superintend their fabrication, fitting and preservation, except to prevent injury to their works ; the water drawn through private service pipes becomes as much private property as though it had been sold, and the subsequent ill use of it by negligence or otherwise to the injury of another cannot make the defendants liable any more than if they had sold an axe with which trespasses had been committed by cutting timber on another person’s grounds.

But there is not in reality evidence enough in the case to charge any one with the wrong. The use of the Croton water by pipes was legal. Fo one is responsible for injury committed by their breaking, unless caused by negligence or design. If all due diligence is used in making or maintaining the pipes, the injury becomes an unavoidable accident, for which no one is responsible. There was no evidence in this case that the pipes were originally defective. On the contrary, as they were in long before the damage in this particular case, they must have been originally strong. If originally sound, there was no proof of want of care in repairing any known defects or discovering them ; on the contrary, it took six months of close investigation to discover where the leak was, and then they were repaired. Mere results are not proof of want of care. There is no presumption of it even in case of accidents on railways. On this principle, in an action for an injury to a horse by a locomotive engine on a railway, proof that a gate in the enclosure in which he was confined over night was found open in the morning was held no proof of want of care on the owner’s part. (Waldron v. The Rensselaer and Sar. R. R. Co., 8 Barb., 390.) Heglect is not to be presumed any more than fraud, except in cases where the policy of the law places the burden of disproving it upon one party.

For all these reasons the judgment appealed from must be reversed, the order for a reference discharged, and a new trial had, with costs to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    Goold Hoyt, Executor, &c., Plaintiff and Respondent, v. Samuel Hoyt, Defendant and Appellant.
    1. Upon appeal from a judgment on the report of a referee, every intendment is to be made of which the evidence will admit, to sustain the report and supply the necessary facts to justify it.
    2. A referee has power, upon the trial, to permit an allegation in the complaint that the assignment to the plaintiff of a bond and mortgage in suit was in writing and for a certain sum, to be amended, by alleging that the assignment was by parol, and as security for an uncertain sum.
    3. A renewed assignment or continued hypothecation of a thing in action already in the possession of the assignee by virtue of a previous written assignment, is valid, though made by parol; especially where the consideration is the incurring of a future and contingent debt. The statute of frauds does not apply to such a case.
    4. A second assignee of a mortgage of land does not, by recording his assignment, obtain a title valid as against one having a prior unrecorded assignment. A purchaser of a mortgage is not a purchaser of “ real estate " within the meaning of the recording act.
    5. A finding of a Referee, as a conclusion of fact, that an assignment was delivered in settlement of a previous demand, and, as a conclusion of law, that it was not received in extinguishment of an equal amount of indebtedness, may be construed to mean that it was received only as a security.
    6. A debtor, under circumstances showing great embarrassment, and bad faith on his part, gave to one of the firm who were his creditors, an assignment of a bond and mortgage, with money and a check, together amounting to the sum of the debt; and the partner receiving them took the assignment of the bond and mortgage in his-own name, charging himself with the amount thereof, on the books of the Ann: Held, that he could not be deemed a bona fide purchaser for value: Held, further, that there was enough in the circumstances of this transaction as proved, to put him upon inquiry as to a prior assignment by the same debtor to another person; and that he was, therefore, chargeable with notice thereof.
    7. The cases of White v. Springfield Bank, (3 Sandf., 222 ;) New York Marbled Iron Works v. Smith, (4 Duer, 362;) and Purchase v. Matiison, (3 Bos., 313,) questioned, by Robertson, J.
    (Before Robertson and White, J. J.)
    Heard, March 11th and 12th;
    decided, October 5th, 1861.
    Appeal from a judgment entered upon the report of Henry Hicoll, Esq., as Referee.
    The relief demanded by the complaint in this action was that the defendant should deliver to the plaintiff two bonds and mortgages described therein, which had been assigned by the mortgagee to the defendant, and also should reassign the same if necessary. It was, however, agreed during the pendency of this action, that the plaintiff should continue an action for their foreclosure, commenced before the present one was begun, and should hold the proceeds of the sale on such foreclosure, subject to the decision in this action. All the issues were referred, and the Referee adjudged, that after paying a certain sum to the defendant, the plaintiff was entitled to retain a certain sum out of the proceeds of such sale, and that neither party was entitled to costs. Ho objection was made to the regularity or form of such judgment.
    The land embraced by the mortgages lay in Kings County; each of them was for $3,500, with interest, and was executed by one Wiegand to one Charles Hoyt. They, with the bonds mentioned in them, were assigned by a written assignment, in May, 1852, and delivered to the plaintiff as security for a balance due to him from the mortgagee, upon a previous purchase of lots from him by the latter. Such assignment was declared on its face to be a security for $2,095, and was never recorded. Upon the trial of the issues an amendment was allowed to be made to the complaint by the Referee, by which it was alleged, that such bonds and mortgages' were after such written assignment, “ assigned by parol .by Charles Hoyt, and delivered to the plaintiff as collateral security * . * * for all the indebtedness of Charles Hoyt to the plaintiff,” arising from the surrender by the latter of mortgages held by him upon property owned by the former, and from the sale of certain lots by the latter to the former, and also for a certain note of a third person, held.by the latter, and assumed by the former in consequence of his indebtedness to the maker, and also for “ the general indebtedness of Charles Hoyt to the plaintiff on account.”
    Various transactions by way of substituting said bonds and mortgages in place of others, upon the property of Charles Hoyt, took place between him and the plaintiff at different times, between the first written assignment of the bonds and mortgages in question, to the latter, and a final adjustment of accounts in June, 1855, between him and Charles Hoyt, in which the latter assured him that the mortgages already held by him would cover any balance of account. After all such transactions were closed, Charles Hoyt further “ agreed” with the plaintiff that he was to look for the balance of account due him, to the bonds and mortgages in question, then in process of foreclosure by him, and on being applied to for payment, subsequently told the plaintiff he must get it from the mortgages in question. These facts appear in evidence, although not found by the Referee.
    The following facts were found by the Referee in reference to the assignment of the mortgages in controversy.
    I. Charles Hoyt executed the written assignment of the-mortgages in question, in the first place, as security for the sum therein mentioned, and subsequently agreed thait they, Avith other assigned securities, should remain in the plaintiff’s hands as security for an additional loan of $6,000.
    II. Charles Hoyt, in April, 1854, by letter, authorized tire plaintiff to pay himself a note, held by him, drawn by James I. Hoyt, from the proceeds of such mortgages.

      IH. Two actions were commenced in December, 1853, in the joint names of the plaintiff and Charles Hoyt, for the foreclosure of such mortgages by certain attorneys, (Messrs. Hawley & Glover,) in whose hands the same had been placed for such purpose, in which actions, notice of their pendency was filed in January, 1854.
    Certain other facts in relation to the delivering of such bonds and mortgages to the defendant, by Charles Hoyt, were contained in the Eeferee’s report, as found by him, which were substantially as follows:
    I. Charles Hoyt, on the 15th of June, 1855, obtained both such bonds and mortgages, and their written assignment to the plaintiff from the attorneys, in whose hands they had been placed for foreclosure, under pretext of needing them to make a settlement with the plaintiff, and only returned one of them within two days thereafter.
    II. Charles Hoyt, on the 16th of June, 1855, borrowed of the defendant’s firm, consisting of himself and a brother, $20,000, which he promised to return in half an hour but never repaid.
    ITT. Charles Hoyt, “in settlement” of the debt growing out of such last mentioned loan, paid to the defendant’s firm $1,000 in money, delivered them his check for $12,000, and assigned to the defendant the bonds and mortgages in question.
    IV. The sum of $7,000 at the time of such settlement, was debited to the defendant and credited to his brother, and he took the mortgages to his own account.
    The plaintiff and Charles Hoyt on the 17th of June, 1855, adjusted the indebtedness of the latter to the former, including the note of James I. Hoyt, at nearly $4,000, ($3,988.36;) on the same day, in the office of Charles Hoyt, the bond and mortgage returned by him to the attorneys to prosecute the same, was surreptitiously taken from them by some unknown person and never restored.
    The first assignment of the mortgages in question to the defendant, containing no covenant of the amount due thereon, was received by Jesse Hoyt, the defendant’s brother, in the city of New York, sometime after 11 o’clock of the morning of the 19th of June, and put on record by his counsel on the same day at Brooklyn, in Kings County: • Such counsel, on the same day, drew a second assignment of the same mortgages to the defendant, which his brother procured to be executed and recorded on the next day, (20th,) and which contained a covenant, that $7,000 and interest was due thereon.
    The defendant and his brother, Jesse Hoyt, were the only witnesses examined as to the execution of the assignment to the defendant: Jesse Hoyt, testified to the original loan by his firm to Charles Hoyt, that while such loan remained unpaid, the latter applied to him in order to sell or raise money on the mortgages in question, by whom he was informed that he had no money, but perhaps the defendant had. In this conversation, the witness asked Charles Hoyt if the mortgages had been assigned, who replied that they had, but it was all settled, and tore up a paper or two, which the witness understood from him was an assignment; although he did not understand to whom. On the 19th, a “ settlement” was made, by which Charles Hoyt gave the witness $1,000 in money, a check for $12,-000, and an assignment of the mortgages for $7,000. This witness, and the defendant, both stated that the latter agreed to take the mortgages as an investment for $7,000. The witness Jesse Hoyt, declared this to be the whole of the transaction; the mortgage was taken as payment of $7,000, and the check taken for the balance dated the 19th June; no memorándum or receipt was given for the original debt of $20,000, and it did not appear what was done with the original check for that sum given by Charles Hoyt.
    At the time Jesse Hoyt called on the defendant’s Counsel with the original assignment, he directed him to examine the papers, and the abstract of title, to see from that whether it was all straight, and desired him to search for assignments of the mortgages.
    The check for $12,000 given on the settlement, was unpaid, and two days afterwards a mortgage was given in lieu of it, upon a steamboat, said by Charles Hoyt to have been bought by him, and 112,000 paid therefor.
    It does not appear, that anything was said at the first interview between Charles and. Jesse Hoyt, on the 18th of June, of the debt due by the former to the firm of the latter.
    The Referee found as a conclusion from the facts, that the assignment of the bonds and mortgages in question to the defendant, was not “made for a valuable consideration, or received in extinguishment of an equal amount of indebtedness from Charles Hoyt, to the defendant and his brother.” The only other conclusion of law found by him, was that on the 19th June, 1855, the plaintiff was the rightful owner of the bonds and mortgages in question,, and entitled to be paid out of the proceeds thereof, the amount due to him on a settlement of accounts between himself and Charles Hoyt.

      David Hawley, for plaintiff, (respondent.)
    I. The bonds and mortgages had not only been assigned by the written assignment, but they had also been assigned as collateral security for Charles Hoyt’s indebtedness to the plaintiff on several accounts, and the plaintiff had a ■lien upon them for the balance due him, and was entitled .to the possession of them on the 19th day of June, 1855, when they were transferred to the defendant.
    II. At any rate, there was an equitable assignment from Charles Hoyt to the plaintiff, to secure his indebtedness, to constitute which no particular form is necessary. (2 Story’s Eq., § 1047 ; Morton v. Naylor, 1 Hill’s R., 583 ; 1 Parsons on Con., 197 ; and see James v. Johnson, 6 Johns. Ch., 417 ; Bosanquet v. Dudman, 1 Starkie’s R., 1.)
    ITT. Had these bonds and mortgages been in the hands of an entire stranger, the agreement between Goold Hoyt and Charles Hoyt created a valid lien or pledge of them. (Cross on Lien, 65 ; Falkener v. Case, 1 Brown’s Ch. Cas., 125 ; and see Coote on Mortgages, 202.)

      IY. The letter which Charles Hoyt wrote the plaintiff, authorizing him to pay himself for the note held by him against James I. Hoyt, dated 8th February, 18.51, for $1,000, and interest from 8th February, 1852, out of the securities he held as executor of the estate of Gr. Hoyt, deceased, and the attending circumstances, constituted an equitable assignment of. those securities for the payment of the same. (Morton v. Naylor, 1 Hill R., 583.)
    The statute of Frauds does not apply. The order is to pay out of a fund, and there is no accountability, if not realized from that fund. (Parson’s Mercantile Law, 74.)
    The consideration was the giving up the note in question to James I. Hoyt. (1 Parsons on Con., 190.)
    Y. The defendant is not a purchaser in good faith, so as to be protected under the registry act, because he had notice of a previous assignment.
    1. Charles Hoyt gave Jesse Hoyt notice that they had been previously assigned. (Willard Eq. Jur., 256 ; 1 Story’s Eq., § 397 ; Anderson v. Van Alen, 12 John. R., 343.)
    There was enough to put him on inquiry. (Haight v. Hayt, 19 N. Y. R., 471 ; and see 2 Barb. Ch. R., 151, 159.)
    2. The filing of the lis pendens in the foreclosure suit was constructive notice of the pendency of the foreclosure, and, therefore, of the rights of the plaintiff therein."
    The word “purchaser” includes the assignee of a mortgage. (2 R. S., 3d ed., 46.)
    At least, the assignee of a mortgage subsequent to filing lis pendens, becomes a subsequent incumbrancer."
    The case in 2 Barb. Ch. R., 151, applies to a previous mortgagee, who, of course, is not a subsequent purchaser.
    Besides, this provision as to subsequent purchasers and incumbrancers was not contained in the Bevised Statutes, but was added in the Code.
    YI. The defendant is not a purchaser for a valuable consideration, so as to be protected under the Begistry Act, because the assignment of the mortgages was taken for a pre-existing debt.
    1. The consideration was not advanced on the credit of these mortgages. There was no new consideration. Stalker v. McDonald, 6 Hill, 96 ; Coddington v. Bay, 20 John., 637 ; Van Husen v. Radcliff, 17 N. Y. R., 583 ; Higby v. New York and Harlem R. R. Co., 3 Bosw., 497 ; Noel v. Murray, 3 Kern., 168.)
    A note taken in exchange for a pre-existing debt is not presumption of payment, except in Maine and Massachusetts. (3 Fairf., 381 ; 15 Maine R., 340.) And assigning other dioses in action, such as bonds, without guarantee, and credited on the books of the creditor, is not payment nor presumption of payment. (Leas v. James, 10 Serg. & Rawle R., 315 ; Day v. Leal, 14 John. R., 404.)
    There is no proof here of any agreement with Charles Hoyt, that these bonds and mortgages should be received in payment of the debt the defendant and his brother held against him, and he be absolutely released.
    The fraudulent representations of Charles Hoyt, that the bonds and mortgages were free and clear of all incumbrances, would have rendered any positive and absolute agreement to receive them in payment void, (1 Parsons on Contr., 463,) and leaves the defendant in as good condition after he re-transfers, as he would have been in had no transfer taken place.
    The fact that the assignment was to one of two partners, for a portion of his claim in the debt, can make no difference in principle. It is still a pre-existing debt. And where joint creditors divide the debt, it cannot change the relation at all as to the debtor, so as not to make it a preexisting debt, if one is more diligent or fortunate than the other in collecting his claim.
    The defendant not being within the registry act, took the assignment of these bonds and mortgages, subject to the plaintiff’s rights, and got no greater or better right than Charles Hoyt himself had. (Ventress v. Smith, 10 Pet. 175 ; Willis v. Twambly, 13 Mass. R., 204 ; Westfall v. Jones, 23 Barb., 12.)
    “ As between equities merely, the prior one, as a general rule, prevails.” (Mechanics’ Bank v. N. Y. and N. H. R.

      R., 3 Kern., 599 ; Williams on Personal Property, 322, margin.)

      C. Van Santwoord, for the defendant (appellant.)
    • I. The written assignment to plaintiff to secure a specified sum, could not, as against subsequent purchasers, or incumbrancers, on account of a precedent debt, be made available as security for a debt entirely distinct and separate from the particular debt, which it was given to secure, by a subsequent parol agreement. (Hooper Exp., 19 Ves., Jr., 479 ; Truscott v. King, 2 Selden, 146-166 ; Mead v. York, 2 Selden, 449 ; The Bank of Utica v. Finch, 3 Barb. Ch. R., 293, 302.)
    II. The allegations that the $6,000, in Sept., 1852, was advanced on the bonds and mortgages, and of a further assignment by parol as collateral security, so far as the same might be necessary for the payment thereof, were not proved.
    HI. The claim of the plaintiff to the mortgages as collateral security, under and by virtue of the assignments alleged, was thereby extinguished by payments or receipts before June 15,1855, and the plaintiff ceased to hold even the legal title. (Kortright v. Cady, 21 N. Y. R., 343.)
    IV. The Referee had no power to allow the amendment.
    This was allowing the plaintiff to set up a claim to the mortgages on a new and distinct title and ground, wholly without the scope and meaning of the allegations of the complaint, which he was not authorized to do. (Union Bank v. Mott, 18 How. Pr., 506, 508 ; S. C., 19 Id., 267, 273.)
    V. But if he had the power, the assurances of Charles Hoyt that the mortgages would cover him for any balance of account, and the agreement of Charles Hoyt with the plaintiff, that he was to look to the collections of these bonds and mortgages, without clear evidence of an original actual deposit of the bonds and mortgages themselves by Charles Hoyt with Goold Hoyt, as security for advances, or the continuance of such deposit, did not bring the case within the principle of an equitable assignment by deposit of title deeds, &c. (Ex parte Hooper, 19 Ves., 479 ; Bradley’s Case, Ridgeway t. Hardwicke, 194.)
    VI. Hence the plaintiff at the date of the assignment of the mortgages to the defendant on the 9th of June, 1855, had no title to them as against the defendant if he had no better title than that of an assignee for a pre-existing debt or a judgment creditor.
    VII. The defendant was “ a purchaser in good faith, and for a valuable consideration” of the mortgages in question under two assignments by Charles Hoyt.
    VIII. The acceptance of a deed or note in payment of a pre-existing debt, as distinguished from the case of its acceptance as collateral security for or on account of a pre-existing debt, without giving up any security, or parting with any right, or incurring any new responsibility, or placing the party taking the deed or note in a worse situation than he would have been if he had received notice of a prior equitable title or lien previous to the purchase, constitutes the party accepting, a bona fide purchaser for value. (Bank of Sandusky v. Scoville, 24 Wend., 115 ; Bank of Salina v. Babcock, 21 Wend., 499.) The case of Dickerson v. Tillinghast, (4 Paige, 215,) is not in conflict with the above statement, though the marginal note is so.
    IX. The facts that the mortgages were taken as payment of $7,000 of the loan of $20,000, in the settlement for that loan upon the agreement of the defendant to take them for $7,000 in acceptance of the proposal of Charles Hoyt, through Jesse Hoyt, to sell the mortgages to him is as conclusive to show that the mortgagees were taken as actual payment for so much, as any formal agreement to take them as actual payment for so much, could be. (Higby v. The New York and Harlem Railroad Company, (3 Bosw., 497, 504,) is not inconsistent with this proposition, and see Bank of Sandusky v. Scoville, (24 Wend., 115.)
    X. Feither Jesse Hoyt nor the defendant had any notice of claim such as to deprive the defendant of the character of a bona fide purchaser. (Jackson v. Van Valkenburgh, 8 Cow., 260, 264.)

      XI. In the foreclosure suits pending on the mortgages, Charles Hoyt was co-plaintiff with Goold Hoyt. The lis pendens in those suits relied on as notice by the plaintiff was not notice except from persons deriving title from the defendants in those suits. (Stuyvesant v. Hall, 2 Barb. Ch. R., 160.) The Referee so held.
    XII. As against the defendant’s title as a purchaser in good faith, for a valuable consideration under the assignments to him, dated June 19, 1855, and duly recorded as above stated, the prior unrecorded assignments to the plaintiff were void by express statute. (1 R. S., original ed., 756, §§ 1, 37, 38.) See Revisers’ Notes, (3 R. S., 2d ed., 605,) where it is stated that it seems evident that an innocent assignee of a mortgage is entitled to the same protection as an innocent purchaser. (Vanderkemp v. Shelton, 11 Paige, 28 ; Pickett v. Barron, 29 Barb. S. C. R., 505.)
   By the Court—Robertson, J.

Only two questions arise in this case, upon whose determination it depends ^ the first is the efficacy of the parol assignment of the mortgages in question to the plaintiff, from Charles Hoyt, as security for a debt due by him, to confer an ownership as against subsequent purchasers; and the second embraces the good faith of the purchase by the defendant for value, without any notice of the plaintiff’s rights, at the time of the written transfer of them to the former, within the meaning of the recording act.

Two objections are made to the plaintiff’s availing himself, of any parol assignment to him, even if it existed and was valid; First, That the Referee has not found any such fact, and Secondly, That there was no such allegation in the complaint, until an' amendment was allowed by the Referee; which he either had not the power to allow, or ought not to have allowed. It is fully established by the recent adjudications of the Court of Appeals, that every intendment is to be made, of which the evidence will admit, to sustain the report of a Referee, and to supply the necessary facts to justify it, (Carman v. Pultz, 21 N. Y. R., 547 ; Grant v. Morse, 22 Id., 323,) and the evidence in this case fully warrants the assumption of the making of such a parol assignment. In reference to the second objection, the title or ground of claim to the mortgages by the plaintiff by the parol assignment, does not appear to me to be so distinct from that set out in the complaint, as to bring the case within the principle laid down in The Union Bank v. Mott, (18 How. Pr. R., 506, 508 ; S. C., 19 Id., 267, 273 :) The person from whom either assignment came, was the same, the only differences between that first and that afterwards set out, were; that the former was by parol instead of written, and was taken as security for an uncertain balance of account, instead of a certain debt; it was, therefore, not beyond the jurisdiction of the Eeferee to permit the amendment, and his discretion appears to have been well exercised in permitting such amendment, as in so many dealings between the parties, an innocent mistake might easily have arisen as to the debts which the assignment was intended to cover, as well as the fact of a parol assignment having been made after the written one. It was, besides, only anticipating what might have been the action of the Court, in conforming the pleadings to the proofs, as evidence of the existence of such parol assignment, had already been received without objection at the time of the amendment. (Code, §§ 173, 272.)

The parol assignment was clearly effectual to transfer the property to the plaintiff, unless prevented from doing so by the Statute of Frauds, and such objection can be taken by third persons. The written bonds and mortgages were already in the possession of the plaintiff, and he held a written assignment of them; the consideration for the parol assignment was a new debt to be incurred thereafter: There was, therefore, no necessity for them to be delivered a second time, and as no part of the consideration could be paid at the time of the assignment, unless a parol assignment was good, there was no other substitute which could have been made to take the place of a written one in order to make the transaction binding. Before the Eevised Statutes of 1830, such choses in action could have been assigned by the delivery of written evidences of them or of some instrument creating a lien or obligation, (Runyan v. Mersereau, 11 J. R., 534 ;) and no particular form was necessary for the purpose; (2 Story Eq. Jur., § 1047, Marten v. Naylor, 1 Hill, 583 ; 1 Pars. on Con., 197 :) Where they were already in the party’s possession, an agreement that he might retain them was all that was necessary, (James v. Johnson, 6 Johns. Ch., 417 ;) and this was probably so even if in the hands of another. (Cross on Lien, 65 ; Falkener v. Case, 1 Brown Ch. C., 125.) I apprehend the addition of the words “ things in action,” in the present Statute of Frauds, to the articles whose sale was required, by the former statute, to be manifested in writing, was not made to include a case like the present, or interfere with any previous law. The statute itself was originally intended to prevent the absolute sale of property, for an inadequate price established by perjured or mistaken testimony, or the conversion of a mere treaty for selling into an absolute sale. But it did not intend to interfere with the custom of commerce, by which certain acts, such as part delivery or part payment, had been adopted as evidence of a sale; and it certainly could not have been intended by the addition already spoken of, to require a writing for the continuous hypothecation of an article already in the pledgee’s possession and transferred to him by a bill of sale; and still less where the consideration was the incurring of a future and contingent debt, which could not be defined, although it might be described in general terms. The parol assignment, therefore, I must hold to be valid and effectual.

The second question which arises is, whether the defendant was, within the meaning of the statute, (1 R. S., 756, § 1,) such a subsequent purchaser in “ good faith and for a valuable consideration of the same real estate,” as that for which the plaintiff held an unrecorded conveyance.

Before the Eevised Statutes of 1830, the record of an assignment of a mortgage was not notice to any one of its existence. (James v. Morey, 2 Cow., 246 :) But now, although such an assignment would come within the statutory definition of “ conveyance,” (1 R. S., 762, § 38 :) the preference over the holder of a prior unrecorded “ conveyance,” given in the same statute, is only to a purchaser of the “ real estate,” conveyed by such conveyance, and not to a purchaser of the “ conveyance ” which a mortgage would be: What is meant by “real estate” is defined in-the same statute, (1 R. S., 762, §.38,) which does not include “mortgages.” These considerations are overlooked by Chancellor Wai/wobth in deciding Vanderkemp v. Shelton, (11 Paige, 28 :) The statute ought to be construed strictly as being in derogation of existing rights.

The Eeferee, however, has stated, as a conclusion of law, from the facts found by him, that the assignment to the defendant of the mortgages in question, was “ not received in extinguishment of an equal amount of indebtedness existing at the time of the transfer,” one of those facts being that such assignment was delivered in settlement: This I apprehend is to be construed to mean, by way of security yand the evidence points rather to such an arrangement, than to a discharge of Charles Hoyt. (See Higby v. The New York and H. R. R. Co., 3 Bosw., 504, and cases cited :) If such be considered to be the inference as a fact, from the other facts of the case, it is clear the defendant was not a Iona fide purchaser, but took the assignment as mere security for a debt; and if the question be still open I think we are warranted in drawing as an inference of fact what the Eeferee has stated as a conclusion of law; if necessary to sustain the report, we are undoubtedly at liberty to do so.

At the time of the first interview between Charles and Jesse Hoyt, the former was indebted to the latter’s firm in a large sum of money, borrowed by him, two days previously for half an hour only and never heard of in the meantime: Ho thing appears to have been said about this breach of faith and the only thing proposed was to sell the mortgages or raise money on them. ' This might possibly be construed as meaning to obtain it for the purpose of discharging the debt in question, were it not that Jesse Hoyt said, he had no money, but the defendant might have some. This clearly did not refer to canceling any of the debt, because both parties owned that at the time". No money was ever advanced; the only act done was a change of credit on the books of the defendant’s firm and the assignment was then executed: This assignment was accompanied by a worthless check, and was taken without any examination of the title or even a covenant that any amount was due on the mortgages; but is alleged to have been taken in payment of a debt of §7,000: Tiiough pronounced defective, and notwithstanding another was obtained without difficulty, it was put on record forthwith, also without even an examination of the title: The check, of the payment of which, there was no probability at the time, was settled two days afterwards by a doubtful security. These circumstances show so much embarrassment in the affairs of Charles Hoyt, and such a fear by the defendaut of his insolvency, as to warrant the conclusion that the mortgages were taken as temporary security to be replaced by better if he could give it, rather than as an investmeut of money due from a solvent debtor.

But if this were not so, these circumstances, in connection with others, lead us irresistibly to the conclusion that the defendant took the assignment with knowledge of facts sufficient to put him on inquiry as to the existence of a prior assignment. Charles Hoyt told Jesse Hoyt, in their first interview, in reply to a question to that effect by him, (for putting which, no reason is assigned,) that the mortgages had been assigned, but it had been settled; and he then tore up in his presence some assignment: Jesse Hoyt deemed this of importance enough to be communicated to his brother, and even after the arrangement was completed, was so impressed with the belief of the existence of a prior assignment, that he specially instructed his Counsel, besides examining the title, to search for assignments. The whole negotiation was conducted and concluded in haste, without the presence of Counsel, who might have been dangerous witnesses in case of a subsequent investigation into the good faith of the transaction, and I think it cannot be doubted on this state of facts, that enough circumstances came to the knowledge of the defendant and his agent, to have put them upon inquiry; and had they been desirous of ascertaining the existence of a prior assignment, of enabling them to discover to whom it had been executed. This they would have done, unless Charles Hoyt should deceive them, which he could not well do, after once stating the existence of an assignment. But neither Jesse Hoyt nor the defendant used due diligence in prosecuting the proper inquiry. (Anderson v. Van Alen, 12 J. R., 343 ;) and this, in connection with the fact that the assignment was taken to secure a doubtful debt from an embarrassed debtor, shows that the defendant had a motive in not pushing his investigations too far.

It is true that the whole of the old debt of $20,000 was . closed up; but only by taking a check, which was not paid, and probably not expected to be paid; the want of money on the part of Charles Hoyt, not appearing to have ceased. A new security, instead of such check, was given two days after, for giving which, at the time, there seems to have been no reason. The taking of the check was probably to give color to the theory of an absolute extinguishment of the original debt.

The report of the Beferee would, therefore, not be set aside, were this a motion for a new trial on a case, if he had found that the assignment to the defendant was only as security for, and not in extinguishment of, so much debt, and that as matter of law, he had notice of sufficient facts to put him on inquiry. If the two facts, that such assignment was merely for security and such notice, can be now supplied without a formal finding, the judgment should be affirmed.

But even if the defendant had absolutely relinquished seven-twentieths of his claim against Charles Hoyt for the mortgages in question, I do not think the law so clearly settled in his favor as his Counsel seemed to imagine. It is true this Court in three cases has so held, (White v. Springfield Bank, 3 Sandf., 222 ; New York Marbled Iron Works v. Smith, 4 Duer, 362, and Purchase v. Mattison, 3 Bosw., 313 ;) hut the language of Judge Bexio, in deciding the more recent case of Van Heusen v. Radcliff, (17 N. Y. R., 583,) in the Court of Appeals, is explicitly to the contrary: lie there states, that “in regard to commercial paper, it has long been settled that no person could claim the title of bona fide holder, who receives the bill or note on account of a precedent debt, there being no new consideration or anything parted with by the indorsee at the time,” and he refers to the cases of Youngs v. Lee, (2 Kern., 553,) and Dickerson v. Tillinghast, (4 Paige, 219,) as authority. In the first of those cases, (Youngs v. Lee,) which was in the Court of Appeals, the decision was put on the ground, that the debt discharged was not due at the time of the discharge; and in it the other case of Dickerson v. Tillinghast, as well as those of Stalker v. McDonald, (6 Hill, 93 ;) Coddington v. Bay, (20 J. R., 637 ;) The Bank of Sandusky v. Scoville et al., (24 Wend., 115 ;) and Bank of Salina v. Babcock, (21 Wend., 499,) were cited with approbation. In Boyd v. Cummings, in a subsequent part of the same volume, (17 N. Y. R., 101,) it was deemed advisable to place the decision upon the ground of the abandonment of supplementary proceedings, as part of the consideration. Chancellor Walwobth, in the case of Dickerson v. Tillinghast, already referred to, (ubi sup.,) held distinctly and decidedly, that a mere release of a debt is not a sufficient parting with value to constitute a bona fide purchaser, and in this he followed the early case of Coddington v. Bay, (20 J. R., 637), where that doctrine was first laid down. The same eminent jurist had occasion still further in the Court of last resort, (Court of Errors,) in Stalker v. McDonald, already referred to, (ubi sup.,) to reiterate the principle and fortify it by an elaborate argument and examination of authorities; commenting among others, upon the cases of The Bank of Sandusky v. Scoville, and Bank of Salina v. Babcock, already alluded to; (ubi sup.) those being cases in which the doctrine was inapplicable, because the plaintiffs had discharged' indorsers as well as drawers of the notes: In this conflict of authorities, it might appear presumptuous to pronounce, when not essentially .necessary, that the Court of Appeals, in the case of Van Heusen v. Radcliff, (ubi sup.,) had adopted the principles laid down by Chancellor Walworth, and the Supreme Court, and thereby overruled the cases in this Court already referred to : But upon the other two grounds, both that the defendant was not a purchaser at all, of the mortgage, or if he was, was clearly not one in good faith, because he was chargeabló with notice, of the plaintiff’s prior assignment, the judgment should be affirmed, with costs.


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    Andrew Brady, Plaintiff and Respondent, v. David A. Hennion, Defendant and Appellant.
    1. In an action to recover a strip of land lying along a boundary line, it is not enough for the plaintiff to show, that the defendant’s lot as possessed by him, is wider than the deeds under which he claims describe it to be, by the width of the disputed strip.
    2. In such an action,'it appeared that the defendant and those under whom he claimed had been in possession of the strip in question for at least twenty-one years, claiming title, and that after the wall of his building which stood thereon, had leaned over towards his own land, the plaintiff had recently put up a shed, the roof of which extended over to the leaning wall; and that the defendant in rebuilding upon the same foundation occupied by his old building, cut away the shed so as to raise his new wall perpendicularly.

      ¿eld, That upon these facts, the plaintiff could not recover, although the defendant’s lot, without the strip in question, would have remained as wide as his deeds called for.
    3. In an action to recover possession of lands, the plaintiff must recover, if at all, on the strength of his own title, not merely on the weakness of the defendant’s.

      4, The words “more or less” in the boundary in a deed of land, are merely words of description to prevent the parties from being prejudiced by inaccuracies. They do not have the effect to extend the grantee’s boundary beyond the line fixed by a visible monument, or a map referred to in the deed.
    (Before Robertson and White, J. J.)
    Heard, March 12 and 13;
    decided, October 5, 1861.
    Appeal from a judgment entered upon the decision of a Judge, on a trial without a Jury.
    This action was brought to recover possession of a strip of laud in the City of Hew York, in the interior of the square or block enclosed by Washington, Amos, Charles and Greenwich streets. Such strip is about oue foot wide by six or seven feet long. The plaintiff and defendants separately owned the land adjoining such strip. The case was tried in Hovember, 1855, before Mr. Justice Hoffman, without a Jury, and judgment was rendered for the plaintiff.
    On the trial the plaintiff introduced a deed to himself dated iu March, 1817, from Benjamin Wood and wife, conveying a lot of land on the easterly side of Washington street between Amos and Charles streets, therein described as “ bounded and containing as 'within fence, as follows to wit: ” Commencing at a point on Washington, distant 66 feet from the southeasterly corner of that' street and Charles street, running thence at right angles with Washington street, 83 feet more or less, thence southwardly parallel with Washington street 22 feet more or less, thence westwardly at right .angles with Washington street and to it 83 feet more or less, and thence northwardly along Washington street 22 feet, more or less, to the place of beginning. Being part of a lot known on a map of the estate of Richard Amos, made in 1796, by Evert Bancker, as lot Ho. 13.
    Two witnesses (Greer and Catkill) testified that the defendant took off a small part of the rear of a woodhouse on the rear of the plaintiff’s lot, which formed the rear fence of such lot, ran in a straight line and had never been altered until such act was committed, and that the defendant built a brick stable partly on his ground, part of which went into and filled up the space so cut away from the woodhouse. The part so cut away was about 10 or 11 inches wide and 10 or 11 feet deep. A surveyor (Ludlam) testified that the woodhouse .was cut out top and bottom, part of the rear was cut to the ground and the space filled up by the brick stable; the gap was about 8 feet by 11 inches; the rest of the rear fence on the plaintiff’s lot being 13 feet 3 inches, was old; and the witness “judged from appearances ” that the plaintiff had possession in a straight line. This witness also testified that the defendant acknowledged he had encroached, promised to take down the brick stable then partially built, and pay his fees, and at a subsequent stage of the trial, that he had measured the “ projection," of the defendant’s brick stable on the plaintiff’s lot at the surface of the ground, and it varied from 9¿- to 10J inches, and it would have beenimjiossible for the fence cut down to have been in a range with that standing, if the old stable had occupied the place of the new one; it would have had to circle round that part of the lot occupied by the stable; he admitted that the rear fence of the plaintiff’s woodhouse was not quite parallel with Washington' street, and that the line of the plaintiff’s lot to the defendant’s brick stable was over 83 feet. Greer also testified that the woodhouse was cut down to the ground so that the coal in ifc fell into the defendant’s lot.
    One of the plaintiff’s witnesses, (Oathill,) who owned the lot adjoining the plaintiff’s, northwardly, testified, that the old stable on the defendant’s lot, was there when he first went there twenty-six years before the trial (1829). Another witness, (Peter P. Stephens,) to whom the defendant’s lot had been conveyed in 1836, by a deed describing it as being nine feet in the rear, testified, that the old stable was standing there when he bought the lot, that he measured it because his deed was “more or less,” and it was nine feet in width.. Another witness, a surveyor, (Serrell,) testified, that he measured it in 1853, and it was still • nine feet in width. This testimony was uncontradicted.
    One witness, (Peter P. Stephens,) testified, that the defendant’s stable had sagged eastwardiy a foot and a half in 1836, and pressed against a stable in the next lot, (owned by Mr. Van Pelt,) and inclined that to lean over. This testimony is corroborated by that of Butler,—who occupied the house on Brady’s lot, and who testified, that the fence was sagged also,—by Van Pelt, the owner of the adjoining lot, and by the surveyor, (Serrell.) The old stable had been built upon sills laid in trenches in the ground; they were 16 inches thick, and 40 to 50 feet long; the foundation of the westerly wall of the brick stable, was placed in those trenches after the sills were taken up, and it was built perpendicularly therefrom, so as to fill up the space cut out from the roof of the woodhouse.
    Two Avitnesses, occupants of the plaintiff’s lot, (T. M. & T. 0. Butler,) testify, that the rear fence of that lot, formed the back of the woodhouse. The surveyor, (Serrell) and two others who assisted him (Ogden and McSorley), testified that only the roof of the woodhouse was cut off and no part of the bottom, and that it Avas only cut doAvn to the sill of the stable, not beyond. It appeared by the testimony of Oathill, that the roof of such Avoodhouse was only put on two or three years before the trial, and it appeared by other proof that such roof joined up against the defendant’s old stable.
    Both Butler, the occupant of the plaintiff’s house, and Stephens, the owner of defendant’s lot, testified that the Avhole of the rear fence on that lot was so sagged as to be perceptible to the eye, and Butler says the rest of the fence to Charles street was old and out of repair.
    The occupation, deeds and claim of the OAvners of the lots adjoining the plaintiff on both sides extend only 83 feet from Washington street. A deed executed in 1813, under which the defendant claims, leaves the rear dimension of his lot in blank, although five subsequent deeds in his chain of title, executed respectively in 1836,1840,1841, 1844 and 1852, give it as nine feet; but make the point of commencing the boundaries on Amos street only 119 feet east from the corner of Washington street.
    The surveyor, Serrell, testified that the number of feet between Washington and Greenwich streets was one more than the Amos map called for. He measured from the front of the plaintiff’s lot to the sills of the old stable and found the distance to be 83 feet. They were an inch nearer to Washington street than the new brick stable; he adjusted a plumb line to such sill and plumbed up to the room and cut away downwards in a perpendicular line from the top. The present stable is only eight feet eleven inches wide.
    The other surveyor (Ludlam) also measured the distance from Greenwich to Washington street on an irregular line, and made the distance greater than required by the Amos map, by making the plaintiff’s possession 84 feet; he reduced the defendant’s to 8 feet. According to his testimony, he commenced his survey at some unknown point on Greenwich street and ran a line 88 feet 7 inches to a line parallel with Amos street, distant 95 feet therefrom, being the rear of the lots on that street, from which point he made the distance 106 feet to the rear of the plaintiff’s lot, which he made 84 feet from Washington street; all his dimensions differ from those on the Amos map except one lot. Ho evidence was given to show he made any measurement of the distance between Washington and Greenwich street on Amos street.
    The testimony of the witness, Ludlam, as to the defendant’s admission and promise in reference to putting up his stables, is directly contradicted by Greer, who was also present. The plaintiff had put up the roof of his woodshed which joined the defendant’s stable only two or three years before the trial.

      A. G. Rogers, for defendant, appellant.
    I. This being an action of ejectment, the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s; and if he shows no paper title to the strip claimed, he cannot recover, though the defendant should show none on his part.
    II. The plaintiff must show affirmatively either a paper title to the strip claimed, or a title acquired by possession without paper title; and he has shown neither.
    III. Though the plaintiff failed to show any paper title to this strip, the defendant showed a paper title to it as far back as February 9th, 1813, which, while it does not limit the defendant to 8 feet on the rear of his lot, yet conveys up to the rear of the plaintiff’s lot; that is, up to the dividing line; and if the deed, referring to the map, which marks it as 8 feet, would confine the defendant to 8 feet, so the map limiting the plaintiff to 83 feet must, for the same reason, confine him to 83 feet.
    IV. The plaintiff showed no possession whatever of' this strip; while the defendant showed a clear and uninterrupted possession of it, by uncontradicted testimony, for thirty years and upward.
    Y. We do not seek to reverse the judgment as against the weight of evidence, but as against evidence; claiming that there is, in fact, no contradictory testimony; that the testimony of plaintiff’s witnesses is merely inference founded on a supposed state of facts, which did not, in fact, exist; and that the Judge at Special Term mistook the facts, and overlooked one so material as in itself to be décisive of the case.
    VI. The possession by the defendant of this strip of ground, continued uninterruptedly for thirty years, gives the defendant a complete title by possession, irrespective of paper title; and if the overhanging of the plaintiff’s shed were a possession, it is one of three years’ duration only, and cannot avail against such prior and longer possession; but such overhanging was, in fact, no legal possession at all.
    VII. This possession of defendant, by his old stable, shows the plaintiff never had a paper title even, because the very deed under which he claims, bounds his lot by this old stable.

      Moses Ely, for the plaintiff, respondent.
   By the Court—Robertson, J.

Even if the defendant were entitled to a lot of only eight feet wide in the rear either by the conveyances to him, or by his possession, it would not follow that the plaintiff was entitled to take a strip off the easterly side of his lot, one foot in width, to have it reduced to the required dimensions; the defendant may have acquired title to a strip of land in the westerly side of his lot, of a foot in width, without conferring any title on the plaintiff to trespass upon his lot, for an equal distance on the easterly side. It is established by uncontradicted evidence, that the easterly corner of the defendant’s lot on Amos street, as now possessed by him, is distant 120 feet eastwardly from the present northeast corner of Washington and Amos streets; and it is equally plain, that in the conveyances through which he claims title, such corner is distant only 119 feet from the .corner of such streets. He may, by possession, have acquired title to this strip of one foot, or he may be a trespasser on the land of the owner of the lot adjoining eastwardly; neither predicament confers any new right on the plaintiff. It was proved by Oathill, one of the plaintiff’s witnesses, that the old stable stood on the defendant’s lot as far back as 1829; and it was also proved by Peter P. Stephens, from whom the defendant derived title, that it stood there in 1836, when he bought the lot on which it stood; that he measured it then because his deed said “ more or less,” and it was nine feet in width inside of the sills; and that the front of the lot was one foot wider than was mentioned in the deed to Mm. Serrell, the surveyor, measured the stable in 1853, just before the trespass complained of, and its width was then nine feet. Ho evidence was offered to contradict this. On the surface of the ground, therefore, the possession of the defendant, and those under whom he claimed, was of a lob nine feefc wide in the rear, since 1829 at least.

Three witnesses testify, that the site of the westerly wall of the present brick stable on the defendant’s lot, is the same as the sills on which the westerly side of the old stable was erected, and one witness testifies, that the foundation was laid in the trenches in which such sills were laid. It is conceded, that the wall of such brick stable is perpendicular, and that it fills up the space which was cut out of the roof of the old woodshed on the plaintiff’s lot, which is the trespass complained of.

It is proved that the old stable, which reached across the defendant’s lot, sagged down at one end, as long ago as 1833, so that the roof projected nearly two feet eastwardly towards Greenwich street; that the roof of the woodhouse, on plaintiff’s lot, was attached to the side of such stable, and the fence to which it was attached sagged also eastwardly towards Greenwich street; and four witnesses, (one of them a surveyor who was brought for the purpose,) testify, without contradiction, that only the roof of the wood-house, which projected over the sills of the stable, was cut off one foot, to allow the wall of the new stable to be erected perpendicularly on the sills of the old stable.

The witness Ludlam does not appear to have been on the premises until the defendant’s old stable was down and the new one partly erected, and his testimony as to possession is mere matter of inference on his part. He is contradicted by three witnesses—one of them a surveyor who superintended the work—as to the woodhouse being cut out at the bottom as well as the top; he is also contradicted as to admissions of the defendant in the conversation with him: he also undertook to verify the accuracy of the Amos map in reference to the amount of land in the block between Washington, Greenwich, Amos and Charles streets, but confined his labors to measuring an irregular line from Greenwich to Washington street, running in the rear of lots facing on Amos street: he also speaks of the brick perpendicular wall of the stable projecting some inches on the plaintiff’s lot; whether he meant hy this that it leaned over it, or merely intruded on it, is- not very clear. His testimony is, therefore, of no assistance in determining the rights of parties, at least, so far as they arise from possession.

It is plain, therefore, that the defendant and those through whom he claims, were in uninterrupted possession of a lot 9 feet wide in the rear, including the premises in controversy, by means of the enclosure of the old stable, from, at least the year 1829, to the year 1853, being twenty-four years. It was in evidence that the plaintiff did not put up his woodhouse, whose roof projected beyond the sills of the defendant’s stable, and constituted an invasion of his possession, until two or three years before the trial.

It appears, therefore, by greatly preponderating testimony, that the defendant and those through whom he claimed, were in possession for at least twenty-one years, of the premises in controversy; that the plaintiff invaded that possession for two or three years; and the defendant resumed it in 1853.

As the plaintiff, however, is bound to recover by the strength of his own title, and not the weakness of the defendant’s, and as the latter had been in possession some time when the former dispossessed him, it may be proper to examine the plaintiff’s paper title to see whether he was actually resuming possession of what belonged to him.

The map of the Amos farm makes the line forming the rear of the lots fronting on Washington street a straight line from Amos to Charles street, running parallel to the easterly side of Washington street, and distant 83 feet therefrom. The deed to the plaintiff adds the words “ more or less,” to the 83 feet, as the dimension of the northerly and southerly boundary lines • of his lot. Conveyances by Amos and wife of lots Hos. 11 and 12 convey them as being 83 feet in length. His conveyance of lot Ho. 13 with 14 and 15 adds the words “ more or less ” to the 83 feet, but describes them as bounded south by lot Ho. 12, and eastwardly in the rear by lots 31 and 47. Without the land now claimed by the plaintiff his lot would be 83 feet 3 inches long, and with it 84 feet two inches. The words “ more or less ” do not have the effect of conveying an indefinite quantity, they are merely words of description to prevent the parties from being prejudiced by the dimensions being inaccurate. (Mann v. Pearson, 2 J. R., 37.) All the conveyances refer to the Amos map, and each lot conveyed is bounded by lots as designated on such map. The line of Washington street was fixed, (as testified to by Ludlam,) by Hr. Amos by a deed of cession to the Corporation of Kew York, that could not vary; and the description of the premises conveyed by Amos, on that street, was controlled by its location. If, therefore, there was more land between Washington and Greenwich streets than was laid down on the Amos map, the grantors of land on Washington street could not have the benefit of it; if Greenwich street was located with equal certainty, and the lots fronting on it were described so as to be controlled by such location, the error would be for the benefit of the heirs of Amos or the grantees of the intermediate land.

It is also to be remarked that the deed to the plaintiff is of a lot as then (1847) “ivithin fence;” his woodshed was not then roofed, and the side of the defendant’s stable formed the rear fence of the lot conveyed: the plaintiff, therefore, could not, by such deed, acquire title to what was outside of the fence. In every view, therefore, the plaintiff acquired no title to the premises in controversy, by the deed to him, whatever the defendant’s rights may be.

It has been suggested that all the deeds under which the defendant claims make the easternmost corner of his lot one foot nearer to Washington street than the actual possession of the grantors of such deeds, and that the distance of nine feet in the rear given in one of them in 1836, although corresponding with the possession, would not correspond with the dimension of such front. But the grantor in such deed made the measurement, and found the lot to be one foot wider on the front than the deed described it, and it may he that previous owners had only measured the rear, where wooden fences are often displaced by storms, decay, or sagging by shifting of the soil.

In the absence of any finding of facts by the Judge before whom the ease was tried, I have been unable to find any view of it, which would enable the plaintiff to recover. The decision of the Oourt was in a general form, and an exception was taken to the whole of it, and if I am correct it cannot be sustained.

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