author: By the Court, Robertson, Ch. J. Barbour, J.

text:
    Francis Huerstel, plaintiff and appellant, vs. Blase Lorillard, Charles T. Hurlburt and Emma C. Lorillard, defendants and respondents.
    1. The court is not authorized, upon the application of the assignee of a lessor, to appoint a receiver, generally, to collect and hold rents for future adjudication, unless the title to the land forms the subject of litigation, under the first subdivision of section 244 of the Code of Procedure, or the plaintiff shows an appareút right to the rents eo nomine, or an ownership of them as such, or some equity to have them applied so as to prevent injury to him, or protect his rights.
    2. There is no implied or equitable pledge of lands by a lessee to the lessor, for rent, either conditionally or unconditionally, which would justify the appointment of a receiver in an action to enforce such imaginary lien. Per Robertson, Ch. J.

      8. Except by virtue of a judgment he may have recovered against the lessee, for rent, an assignee of the lessor has no right by which he can claim to have the fee of the demised premises sequestered to pay rent of them past due, and, still less, that hereafter to accrue. No legal or equitable claim therefor can arise from the accidental union of the ownership of the term for years, and the estate in remainder, in the same person.
    4. Nor can any lien be created upon such estate in remainder, either hy the conveyance of a reversionary estate for a term of years, or a covenant of guaranty by the lessor, for the payment of rents arising therefrom.
    5. Although the fact that a lessee refuses to occupy under the lease may be ground for an assignee of the lessor taking proceedings to get possession, because the lease is void, yet that can be done at law, and such refusal constitutes no ground for relief in equity separate from so taking possession. The assignee must rely on his action against the lessee, and his assignor (the lessor) on their covenants, and not on any supposed aid from a court of equity.
    6. Where the assignment by a lessor of the lease to another, only carries a right to the rent and other covenants as choses in action, instead of being a grant of the assignor’s reversionary interest in the land for the term of years specified in the lease, the assignee has still less right to a receiver, before judgment, than if he owned both the reversion of the land, for the term, and the rents.
    (Before Robertson, Ch. J., and Barbour and Monell, JJ.)
    Heard April —, 1867;
    decided August 5, 1867.
    This was an appeal from an order denying a motion to appoint a receiver of certain premises in the city of Hew York. In February, 1866, the defendant Blase Lorillard demised such premises to the defendant Hurlburt, for ten years from the first of May following, at the rent of $2500 per annum, payable quarterly, in the lease thereof agreeing to alter such premises according to plans alleged therein to be annexed thereto, but never in fact annexed. The next day after the execution of such lease the defendant Lorillard, in consideration of $10,000 paid him by the plaintiff, assigned to him “ the agreement of lease executed by ” the defendant Hurlburt “ as tenant to ” the defendant Lorillard, “as landlord” of such premises, and all the' “ right, title and interest therein and thereto and to the rents, issues and profits arising and thereafter to arise during the whole term, and to the covenants and agreements therein contained.” And in such assignment the defendant Blase Lorillard covenanted to make all repairs, to pay all sums due on mortgages or for taxes, and to keep such premises insured, and “ guaranteed the performance of the covenants and agreements of the lessee during” such lease. Such lease and assignment were duly certified and recorded. The defendant Lorillard deposed, and he was not contradicted therein, that the arrangement with the plaintiff was in substance a loan to him of the consideration ($10,000) upon the security of such assignment of lease, and that the plaintiff exacted from him the whole amount of the rents, and his guaranty therefor as a consideration for such loan.
    The defendant Lorillard did not make any alterations of such premises, and the defendant Hurlburt therefore refused to enter under his lease. Lorillard conveyed the premises to a son of his, who conveyed the same to the defendant Emma C. Lorillard, his mother, who is now in possession thereof, occupying the same with her family.
    The plaintiff recovered a judgment in the Supreme Court of this state against the defendant Lorillard for $657.81, for a quarter’s rent of. such premises, on which an execution has been issued and returned unsatisfied, and he has commenced actions against the defendant Hurlburt for rent due on such lease, which are still pending.
    The plaintiff deposes, from information, that the conveyance by Lorillard to his son is fraudulent as regards him, and that the deed from the latter to his mother is. also fraudulent. The defendant Lorillard testifies that it was executed in consideration of the release by his wife of her dower in other valuable real estate, which is not contradicted.
    The premises in question are subject to a mortgage of $10,000 which is now liable to be foreclosed, and to two years taxes. The case at special term is reported 6 Rob. 260.

      L. Birdseye, for the appellant, plaintiff.
    I. The learned judge at the special term errs in his statement of the right of the plaintiff as the assignee of B. Lorillard’s lease to Hurlburt. The plaintiff took more than the rent reserved in the lease. True, the rent was the main, thing sought to be acquired—but there were other things transferred, viz: the covenants which secured the payment of the rent, and which, in the event of failure to pay the rent, gave the lessor, or the lessor’s assignee, the possession of the property itself, instead of the value thereof. By the assignment, Lorillard assigns and transfers to Huerstel the lease in question, and all his “right, title and interest therein and thereto, and to the rents and issues and profits arising, and to thereafter arise, during the whole term thereof, and to the covenants and agreements therein contained.” One of the “covenants and agreements ” thus assigned gave to the landlord the right to re-enter the premises, in case of non-payment of rent. The plaintiff had, therefore, under his assignment of the lease : 1. The right to the rent, in case such rent was paid. 2. In the event of the tenant’s failure to pay the rent, the right to enter on the demised premises, and hold them to satisfy the claim for the rent.
    H. By the lease, the landlord conveyed to the tenant all his interest and estate in and to the demised premises, for the term of the demise. As long as the tenant’s covenants were observed, the landlord had no present right to possess the premises; he could take his rent as it fell due, and no more; but if the rent was not paid, he could take the land itself in place of the rent, under the covenant for reentry. - By the assignment, the plaintiff acquired this right to re-enter; and thus obtained an actual and subsisting interest in the land itself, although, till breach of the covenant to pay the rent, this interest was but a security for the payment of'the rent.
    ITT. The plaintiff, as the “ assignee of a lessor of a demise,” had the same remedy by entry, as well as by action, as his grantor had. (See 1 R. S. 747, § 23.) This statute is not limited, as is supposed by the learned judge below, to one who has become, by assignment, the owner of the demised property for a period beyond the term ; i. e. to the reversioner. It extends to one who takes the interest of the lessor only for the period of the term, and not a day beyond. This is the very language of the statute: “ The assignee of the lessor of any demise, shall have the same remedies,” by entry, &e. “ as their grantor or lessor had.” This clause, “as their lessor had,” applies to a case like the present, where the assignee takes merely for the term of the demise, and nothing beyond it.
    IV. The plaintiff, as the assignee of the landlord, had the right on non-payment of rent: 1. To recover-the premises by ejectment, under 2 R. S. 505-6, (part 3, ch. 8, title 9, art. 2,) and of section 3 of chapter 274 of Laws of 1846; or, 2. To obtain the same by summary process under the statute. (See 2 R. S. 513, § 29.) As the “ assign ” of the landlord, the plaintiff came exactly within the description of the persons who, under these statutes, might take these statutory proceedings.
    V. ■ It is therefore respectfully submitted, that the learned judge below erred in holding that “the only rights and remedies of the plaintiff are to receive the rents, and to compel their payment, by action upon the covenants to pay.” Such a limitation of his rights, is a direct and positive violation of the rights secured to him by the lease itself, by the assignment thereof, and by the statutes above referred to. In other words, by the lease and the assignment thereof, from the lessor to the plaintiffs, the latter was subrogated to all the rights of the lessor—both to the rents and to the estate—during the term of the lease, to the exclusion of the lessor, and all claiming under him.
    YI. Lorillard, in and by his assignment, guaranteed to the plaintiff the performance of the covenants and agreements of the tenant and his assigns, during the continuance of the lease; and also covenated to make, at his own expense, the alterations on the premises which were required by the lease; to pay all sums of principal and interest due on any mortgage upon the premises, and also to pay all taxes, assessments, &c. These covenants run with the land. (Taylor Land, and Tenant, 261, 262, 263. Post v. Kearney, 2 Comst. 394. Childs v. Clark, 3 Barb. Ch. 52. Van Rensselaer v. Hays, 19 N. Y. Rep. 68. Allen v. Culver, 3 Denio, 284. Norman v. Wells, 17 Wend. 136. Tyler v. Heidorn, 46 Barb. 439.) These covenants in equity bound the premises in the hands of the lessor; he being at that time the owner thereof. They also bound the premises in the hands of third persons, who took them under him, from the time of the recording of the assignment and guaranty. Especially did they bind third persons, who were volunteers ; who had actual notice of the covenants; and who. took the property without paying value therefor. In the hands either of Lorillard, or of such grantee, they raise a trust on that property, against him, and all claiming under him, that the property itself shall be devoted to the performance of this covenant. (2 Story’s Eq. Jur. 8th ed. § 1231, and cases cited.) In equity, Lorillard was bound, and his son and wife, as grantees, are bound, not to do any act whereby the right, title, estate or interest of the plaintiff' can be impaired, prejudiced or destroyed.
    YU. The action is brought by the plaintiff in a two-fold character: 1st. As assignee of the lessor, and on his guaranty to pay the rent as due. 2. As a judgment creditor, who has exhausted his remedy at law to reach the estate of the judgment debtor, of the title to which he has fraudulently divested himself.
    Yin. In either aspect, he is entitled to the relief sought. The motion for the ■ appointment of the receiver, was “pendente lite,” and affected the rents and possession which belong to the plaintiff for ten years, the term of the lease. And the court, at special term, erred in denying the motion.
    1. The rents were the plaintiff’s, under the lease.
    2. The grantee, Mrs. Lorillard, took subsequent, and subject to the lease, and was not entitled to the rents, or any part of them, nor to the possession of the premises during the term.
    3. The lessor’s covenant of guaranty was entirely overlooked. The opinion is based upon the assumption that the plaintiff’s right rested exclusively upon the mere assignment or transfer of the rents, whereas the assignment contained a covenant of guaranty, in and by which the plaintiff acquired an equitable lien on the demised premises, then the property of the lessor, so that the plaintiff should be secured and paid the rent.
    This is and was more than a mere personal liability; it was a covenant to pay rent which runs with the land, and affected as well Lorillard, the lessor and grantor, as his grantee.
    IX. The court below erred in holding that Mrs. Lorillard, as grantee, subsequent to the date and recording of the lease, had such an interest in the real estate, as to bar or prevent the plaintiff obtaining satisfaction of the rents due under the lease, by resorting to the possession of the property. Her rights as grantee were postponed to the term fixed by the lease. His right to the rent excluded all others from its receipt, and he alone could maintain an action for its recovery. This could not be done by the grantee, Mrs. Lorillard.

      X. The property being vacant and unproductive, and being subject to taxes and assessments, and to interest on the mortgages, it is indispensable that the court should interfere and protect it from destruction.
    XI. The learned judge below erred in holding that Mrs. Lorillard, as grantee of the premises, has any possession of them during the ten years for which the lease was to run. Before the conveyance under which she takes, the husband had conveyed the premises for ten years, by the lease in question. That lease was duly recorded. She therefore took, subject to the lease, and can have no legal title to the possession of the premises till the end of the ten years. The assignment of the lease and of the covenants therein, by the lessor to the plaintiff, vests in the plaintiff the rents and the rights to possess the premises, in case of nonpayment of rent. So that she can have no interest in the premises, until the termination of the ten years for which the lease was given.
    XTT. Xeither of the defendants has any standing in court, or any right to object to the appointment of the receiver.
    1. Blase Lorillard has not. He demised the premises to Hurlburt, and then assigned the lease to the plaintiff, and conveyed the reversion through his son to his wife. He is therefore divested of all interest, present or future, actual or contingent, in the premises.
    2. Hurlburt has not. He has refused, as tenant, to go into the possession of the premises; abandoning them, for want of the alterations covenated for in his lease.
    3. Mrs. B. C. Lorillard has not; for she took, subject to the lease. She also took, without consideration, or value, and with notice of the plaintiff’s rights. She can have no interest in the premises till the end of -the term for which the lease was granted.
    XTTT. The plaintiff having obtained a judgment against the assignor and lessor of the lease, on his guaranty, and having an execution returned unsatisfied, is entitled to have a receiver of the premises, pending the action to set aside the conveyances to Lorillard’s son, and by him to Lorillard’s wife. "When equitable grounds appear which entitle the plaintiff to the rent, a receiver will be appointed. (People v. The Mayor, &c. 10 Abb. 115. Congdon v. Lee, 3 Edw. Ch. 304.) The remark of the judge below, that he “ had never known of extending a receivership to land, the title to which was in controversy,” might be correct, if it was intended to. apply to a case where two parties were claiming lands, by distinct, independent, and adverse titles. The controversy here is not such an one. Here, the judgment creditor claims under and by the title of Blase Lorillard, and not by an independent, adverse title. He admits that Blaise Lorillard had the title, and that independent of the rights of the plaintiff as his assignee" and creditor, Lorillard would have had the right to convey the property to his son, wife, or any other person. But he insists that the conveyance of the title in this case, through the son to the wife, was fraudulent as to the plaintiff and other creditors. The 244th section of the Code provides that a receiver may be appointed on the application of either party, when he establishes an apparent right to property, which is the subject of the action, and which is in the possession of an adverse party, and the property or its rents and profits, are in danger of being lost or materially injured or impaired.
    It has been shown under the preceding points, that the plaintiff is entitled to the possession of the property, growing out of his right to re-enter, for the breach of the covenants in the lease. He had, therefore, an actual right to the property. It is entirely unoccupied and unproductive of rent or income; and its rents are being wholly lost; notwithstanding the rule that a receiver will not be appointed of real property, unless in extraordinary cases, there can be no doubt but that the court has the power to appoint a receiver of real property. (Willis v. Corlies, 2 Edw. Ch. 281. Congdon v. Lee, 3 id. 304. Waterman & Eden on Injunctions, 3d ed. vol. 2, pp. 355, 356 and notes, and cases cited in notes.)

    XIV. The conceded facts of this case, assuming that the' court has the power to grant a receiver over real property, show the propriety of the appointment of a receiver in this case.

      G. Tillotson, for the respondents, defendants.
    I. The plaintiff'has no property nor interest in the real estate mentioned in the complaint. He took no conveyance of the estate whatever. He purchased only the covenants of the lessee to pay rent, secured by Mr. Lorillard’s personal guaranty. There was no grant of any interest in the land itself. He acquired no lien whatever upon or affecting the land. He relied upon the covenants and guaranty, and must take his remedy upon them alone.
    TT- The Code, section 244, subdivision 1, provides that a receiver may be appointed “ before judgment, when the party establishes an apparent right to the property which is the subject of the action.” Here the plaintiff shows no apparent right. He shows none under the assignment of the lease, for that conveys no interest in the land, nor under his judgment against Lorillard, for that is not a lien on the property. The complaint does show an apparent right to the property in the defendant Emma C. Lorillard.
    HI. It has never been the practice of the courts to appoint receivers of real estate, except where the right of the plaintiff is clear. In The People and Taylor v. The Mayor, (8 Abb. 13,) Judge Davies appointed a receiver on the ground that the plaintiff showed a prima facie right to the property, and the Court of Appeals had decided that the corporation had no title. He says: “ It seems to be the well settled rule, where the right is clear, and the party in possession has no legal title, to appoint a receiver in the first instance.” In Cole v O’Neil, (3 Md. Ch. Decisions, 174,) the court say: “This is not a case, therefore, where a receiver is put upon property against the legal title. But it is a case in which the plaintiff shows an equitable title to a part of the property, and a legal and equitable title to another part, in' which the defendant upon the case, as it now stands, makes out no title, legal or equitable, and in which the preservation of the property requires that it should be taken under the control of the court.” In Lancashire v. Lancashire, (9 Beavan, 129,) the court refused a receiver on the ground that the right between the parties was doubtful. In Smith v. Wells, (20 How. 162,) Judge Leonard refused the appointment of a receiver on the ground that the plaintiff had no interest in the property. Legal title in the plaintiff is essential. (10 Abb. 117. Willis v. Corlies, 2 Edw. Ch. 287. Hamilton v. Acc. Trans. Co., 3 Abb. 258.)
   By the Court, Robertson, Ch. J.

If the plaintiff acquired the reversionary interest of the defendant Lorillard in the premises in question during the existence of the lease made by the latter, by virtue of the instrument which assigned such lease to him, he took it cum onere, that is with the obligation of performing all that such lessor was bound to perform in order to make the lessee liable for any rent. The lessor thus, by his covenant in such assignment, was left as a mere surety for the payment of such rent only in case the plaintiff did what was necessary to make such lessee liable; because otherwise he would lose all right of recourse against such lessee by, virtue of any subrogation in case of paying such rent himself to the plaintiff. If, however, the lessor was to be made absolutely liable on his covenant for such rent, without any obligation on the part of the plaintiff, the transaction of an apparent sale of the lease became a usurious contract to pay $25,000 in forty quarterly installments for a loan of $10,000 only, and as such void.

But assuming such contract not to be usurious, and that the plaintiff acquired a reversionary interest in the land, to which the rents reserved were incident, I do not find any principle of law which justifies the appointment of a receiver either of the fee or even of the estate for years in such land.

The complaint asks, as final relief in the action, that the defendants who are holders of the fee of the premises in question, in remainder, should convey it to a receiver, to be taken possession of and leased by him, and out of the rents to have the surplus, after paying taxes, assessments and interest on a prior incumbrance, applied quarterly or monthly in satisfaction both of a judgment obtained by the plaintiff against tíre defendant Lorillard for a quarter’s rent of such premises due under such lease and of all the rents reserved in such lease hereafter to accrue. The notice of motion on which the order appealed from was made, specified simply the appointment of a receiver of the premises in question, to rent them and receive the rents until the further order of the court. Of course the court would not be authorized to appoint a receiver generally to collect and hold rents for future adjudication, unless the title to the land formed the subject of litigation under the first subivision of the 244th section of the Code of Procedure, or the plaintiff showed an apparent right to the rents ■ eo nomine, or an ownership of them as such, or some equity to have them applied so as to prevent injury to him or protect his rights. The counsel for the plaintiff has not undertaken to specify how far he seeks to have the authority of the receiver extend, or by what event or upon the lapse of what time he proposes to have it terminated. It is fair, therefore, to assume that he proposes to have the powers of the receiver as extensive and of as long duration as the receivership asked for in the complaint; in other words, to anticipate the sole, final relief asked for by him, if the case in the complaint entitles him thereto.

Except by virtue of his judgment, I do not perceive any shadow of right by which the plaintiff can claim to have the fee of the premises in question sequestered by this court to pay rent of them past due, and still less that hereafter to accrue. Ho legal or equitable claim therefore could arise from the accidental union of the ownership of the term for years and the estate in remainder, in the same person. Hor could any lien have been created upon such estate in remainder either by the conveyance of a reversionary estate for ten years, or a covenant of guaranty for the payment of rents arising therefrom. The plaintiff could not have any such relief in the action ultimately, and has, therefore, no right to it by anticipation, as the ownership of the fee, or a hypothecation of it, is clearly not (except so far as the judgment is concerned) a subject of litigation in this action. It is therefore hardly necessary to notice how monstrous would have been any assumption by the court of power to create a virtual trustee of the fee, to lease the land and receive the rents, pay off incumbrances and satisfy the plaintiff’s claims for rent as they accrue, such trust to continue for at least ten years (the duration of the lease) and as much longer as might be necessary to accomplish the purposes of the trust. A similar exercise of authority is wholly unheard of. A sale by the officers of the court if the lease could operate as a mortgage of the fee, payable in installments, might be within its jurisdiction. But there is no conceivable principle of equity or fiction of law by which a lease or the assignment of it, could be converted into such a mortgage of the fee, merely because the assignor happened to be tenant in remainder.

Assuming, however, the plaintiff’s request to be more modest, and to reach only to a receivership of the premises during the term of the defendant Hurlburt; the same objection exists, of creating a standing trustee for at least ten years, to lease and receive rents during that time and apply them to paying off incumbrances and satisfying the plaintiff’s claims as they accrue. If there was any pledge of such estate for years, in law or in equity, for the payment of such rents, or any equity existed to have it applied in satisfaction of them, the proper and usual exercise of jurisdiction to enforce such lien or equity would only be by a sale of the estate for years. The plaintiff, however, does not ask for that, because he claims to be the owner of such term himself and a sale of it in an action to which he' was a party, might carry with it a right to all the rents, which he claims as incident to his estate. He proposes, instead of that the exercise of an unusual kind of jurisdiction by creating a trustee, to continue after judgment has been obtained in the action, who might by a lease to a tenant who should fail to pay his rent, place hims°elf in the same predicament as that in which the plaintiff is, and require a new receiver or trustee, and so on indefinitely. But the ground urged for exercising such equity is still stranger than the exercise itself; it is that an equity arises to have the rents of the land applied in payment of the plaintiff’s claim for rent, leaving the original lessor and lessee (the defendants Lorillard and Hurlburt) still liable, bécause at law, although the plaintiff could recover possession of his term by summary proceedings or ejectment, yet the contract would be thereby rescinded and the rent would cease, as being the consideration for the úse of the land. In other words, because the only remedy at law, apart from an action or distress, is a rescission of the contract and restoration of each party to their former rights, therefore a remedy must be provided in equity, and that too, before any judgment obtained by an action of covenant for rent, which remedy, in the absence of all stipulation by the parties by way of pledge or otherwise, is to have the consideration received- by one side sold in satisfaction of the unpaid consideration due from the other. Thus leaving the party who originally received the consideration thus taken away from him, still liable to make up the deficiency of the consideration thus due; since otherwise the lessor would be compelled to leave the delinquent lessee in possession of the land, and have no redress except by action. It is seldom that any contracting party has three remedies at law to enforce a contract, but when he has, it certainly does not furnish a foundation for giving him a fourth in equity, by way of a right either in re, or ad rem. The defendants, of course, do not hold adversly to the plaintiff, nor is this action brought in order to obtain possession of the land, hi or is the basis of relief in it the protection of the property until the interests of the parties therein can be determined, for they are conceded, and there is a legal remedy for enforcing the plaintiff’s rights' therein. JSTor is there any pretense of a trust in the defendants for the plaintiff’s benefit, hi or is there any of waste done on the premises. The fact that the defendant Hurlburt refuses to occupy under the lease, may be ground for the plaintiff’s taking proceedings to get possession because the lease is void, but that can be done at law, and such refusal constitutes no ground for any relief in equity separate from so taking possession. The plaintiff must rely on his action against the lessee and his assignor for their covenants and his power of dispossession, and not on any supposed aid from a court of equity. There is no implied- or equitable pledge of lands by a lessee to lessor for rent, either conditionally or unconditionally, ■which would justify the appointment of a receiver in an action to enforce such imaginary lien. Besides, there is nothing to prevent the plaintiff from pursuing any line of remedy he has upon an action for rent at the same time. He, however, proposes to take out of the defendant’s hands the property in question and lock it up by a trusteeship or receivership, while he is in fact pursuing such other remedies. The law presumes that rent is a fair equivalent for the land. The plaintiff proposes to lease such land anew, and out of the new rents to pay the old, without any proof what part of it they can pay, and so the receivership might continue forever. Yet in the meantime to harrass the parties by actions. Such a course smacks rather of oppression than equity. As, therefore, I cannot find in this case a resemblance to any one of the grounds upon which a receiver is usually appointed, the plaintiff is not entitled to it as assignee or grantee of the reversionary interest in the term for years.

The possession by the defendant, Blase Lorillard, of the premises in question, his failure to make alterations required by the lease to Hurlburt, and the refusal of the " latter to take possession, in consequence, are utterly immaterial on the question of a receivership. The plaintiff, if grantee of the reversionary interest in the term of years in question, can get possession if his rent is not paid. He stood in the place of the lessor when the alterations were to be made, and could, himself have made them so as to make Hurlburt liable if not so otherwise. Fraud in the conveyances to Lorillard’s son and wife of the remainder, does not concern the plaintiff, since they took subject to his rights if he took a grant of Lorillard’s reversionary interest'for the term of years in question by the assignment, inasmuch as that instrument was recorded.

I have considered the case as if the assignment to the plaintiff, of the lease to Hurlburt, constituted a grant to the former of the reversionary interest of the defendant Lorillard in the land for the term of years specified in the lease; but if it only carried a right to the rents and other covenants as choses in action, which seems the better opinion, although such an assignee can sue in his own name (2 Hill, 274,) he has still less right to a receiver before judgment, than if he owned both the reversion of the land for the term and the rents; unless the want of power to re-enter, at law, constitutes a claim for a remedy in equity.

The charge of fraud in regard to the conveyances to the son and wife of the- defendant Lorillard is denied on behalf of the defendants^ and Mrs. Lorillard claims the premises in question as a bona fide purchaser for value, consisting of a release of her estate in dower in other premises. This is not denied by the plaintiff, and he could not, therefore, have a receiver appointed by reason of any such fraud, were this otherwise a proper case for one.

The order appealed from should be affirmed, with costs.

Barbour, J.

In view of the conclusion to which I have arrived upon a careful examination' of this ease, it is not necessary to consider whether the conveyance of the premises in Bleeker street by Blase Lorillard to his son for the purpose of being transferred by the latter to the wife of the former, without any valuable consideration being paid or given therefor, so far as the papers show, except a relinquishment by such wife, at some time, of her inchoate right of . dower in. other property, was or was not a fraud upon the plaintiff as a creditor of Blase Lorillard.

By the assignment to the plaintiff, Blase Lorillard transferred and set over to him, not only the lease of the premises known as. Ho. 69 Bleeker street, and all his right, title and interest therein and thereto, but, also, all his right “ to the rents, and issues and profits, arising and to hereafter arise during the whole term of the lease.

Those words “ issues and profits," are wholly inapplicable to the lease, in any technical or legal sense, and can properly be construed as applying only to the land itself. For, the word “ issues” or “profits,” used singly, means the profits produced, or proceeds of lands, and, as a term in law language, is never used in any other sense. (3 Black. Com. 280. 2 Steph. Com. 2, 3. Burr. Law Dic.) And, where the three words are used, and the grant is of the rents, issues and profits of land, either for a term or in perpetuity,. the land itself passes, pro tanto. (Co. Litt. 4, b. Com. Dig. Grant, E 5. Cro. Eliz. 190. 17 John. 548.) The assignment, therefore, is, by its terms, a grant of the land itself, with all the rents, issues and profits which may arise therefrom, for and during the period fixed by the lease; and for that reason, if such assignment is valid, the plaintiff has a full and perfect remedy at law by his action in ejectment, for the recovery of the possession of the premises, and does not need the interposition of the equitable powers of the court for any purpose ; not even to set aside the deed executed to Mrs. Lorillard, subsequent to the assignment, as a cloud upon his title and right to possess and enjoy the premises for the term.

Besides; the affidavit of the principal defendant states that the assignment in question was made upon and in consideration of a loan to him, then made by the plaintiff, of the sum of $10,000, upon the undertaking of such defendant, that he would pay to the plaintiff therefor $25,000, in forty equal quarter yearly payments of $625 each, and upon the ' assignment to the latter of the lease in question, to be held by him as security for the payment of the said sum of $25,000; and those averments are not only uncontradicted, but are fully proven and established, it appears to me,, by the deed of assignment itself. For, in that instrument, the defendant acknowledges the receipt, upon the day of its date, of the sum of $10,000 from the plaintiff^ and in consideration thereof, assigns and transfers the lease, and covenants and agrees that he will make certain alterations upon the premises, pay off all mortgages, pay all taxes and assessments, and keep the property fully insured, and, also, guaranties the performance of the covenants and agreements of the lessee in said lease, including, of course, the agreement of the latter to pay the rents for ten years at $2500 per year. Considering all the circumstances detailed by the defendant with the • agreement appearing upon the face of the deed, it appears to me impossible to resist the conclusion that it was the intention of the parties to the latter instrument, not merely to sell and purchase a lease, but to provide therein for the payment of an usurious loan. Such instrument is therefore void.

For these reasons, the order appealed from should he affirmed.


source: Caselaw Access Project

author: McCunn, J.

license: Public Domain

text:
    In the matter of the proceedings on the re-arrest of James Johnson.
    1. The remedy given by the act of 1831, called the “ Stilwell act” was given in lieu of the remedy taken away, of arrest in the one case on mesne process, and in the other on final process. And it must appear before a warrant is granted under that act that the 'defendant is not and cannot be arrested and imprisoned in the action, on mesne process.
    2. After a defendant has been arrested and held to bail on mesne process, under the 178th and 179th sections of the Code, the plaintiff cannot re-arrest him for the same cause of action, under the act of 1831.
    Before McCunn, J. at special term,
    October —, 1867.)
    Motion to discharge from arrest,

      Mr. Torrence, for the plaintiff.

      T. P. Felton, for the defendant.
   McCunn, J.

This is a proceeding under the non-imprisonment act. The defendant was brought before me by virtue of a warrant issued under the act of 1831, commonly known as the “ Stilwell act.” His discharge is moved for on the ground that in the original action in the Supreme Court, which action is yet pending, the defendant had been arrested on mesne process for the same causes as those alleged in the affidavit upon which this warrant was granted, and that he was held to bail in the sum of $28,000, and that as the defendant cannot be arrested a second time in the same action he should be discharged by the court. The remedy given by the laws of 1831, and upon which the defendant is now before me, was given in lieu of the remedy taken away, of arrest, in the one case on mesne process, and in the other on final process. (Spear v. Wardell, 1 N. Y. Rep. 150.) Moreover it must appear before the warrant is granted that the defendant is not, nor cannot be arrested and imprisoned in the action on mesne process. (4 N. Y. Stat. at Large by Edmonds, § 3, p. 465.) Indeed, the plaintiff seems to be aware of the fact that it is not only in cases where no arrest can be had that such Stilwell warrant, as I call it, can issue, for he has sworn in his affidavit upon which the warrant is based that the “defendant cannot be arrested or imprisoned in the action,” thereby admitting that if the defendant could have been arrested on mesne process this warrant would not lie. Justice Wright says, in his able opinion in the case above cited, “it” (the non-imprisonment act) “ is a remedy given by statute to reach property where an ordinary execution fails, and where no arrest or mesne or final process can be had.” The act was .created for the very purpose of en-' abling parties to reach the property of a fraudulent debtor where he could not be otherwise arrested in the action. On a careful examination of the statute I am convinced that the intent of the act of 1831 was, after abolishing imprisonment for debt in suits arising upon contract, to provide a remedy for those, immediately affected by such abolishment, through which they might reach the fraudulent debtor’s property. But this plaintiff’s remedy was . not affected by the act to abolish imprisonment for debt, and the best evidence of that fact is, that he has selected his remedy and has chosen to arrest the defendant on mesne process, in the original suit in the Supreme Court. I therefore hold that the choice of the plaintiff in selecting the remedy of arrest under the 178th and 179th sections of the Code deprives him at present of the remedy under the non-imprisonment act. A very nice question might arise in a case of this kind where, after the remedy in the Supreme Court had been exhausted and the judgment left unsatisfied, property should afterward come into the hands of the defendant and he refuse to apply the property to the payment of the judgment. I am inclined, however, to think a warrant under the non-imprisonment act would lie.


text:
    Edwin E. Plant, plaintiff, vs. Spencer D. Schuyler and James Plant, defendants.
    1. Where a negotiable note is made and passed before maturity, an allegation, in an answer, that the note was not to be negotiated, and that the defendant was to have the right to return the consideration, is frivolous.
    2. Allegations in an answer, that the plaintiff is not the lona fiio owner and holder of the note sued on; that he did not receive the same in the usual course of business, nor advance any new or full consideration therefor; that another person is the party in interest, &c.; are all frivolous.
    3. Where the answer does not "deny the facts constituting ownership in the plaintiff, but states only the conclusions of the defendant, this is bad pleading.
    4. -The allegation that the plaintiff is not the owner and “holder of the note, and that A. B. is,” creates no issue, and amounts to a mere traverse, not recognized by our practice.
    6. Where it is not denied, in the answer, that the plaintiff advanced a consideration for the note, these denials, or allegations of conclusions, are frivolous.

      6. A denial, following such allegations in an answer, “ of all matters inconsistent with” the answer, is merely a reaffirmance, or repetition of the matters previously pleaded.
    (Before McCunn, J. at special term,
    December —, 1867.)
    Motion for judgment, on the pleadings.
    The complaint alleged that the defendant Schuyler, on or about the 16th day of March, 1867, at the city of Yew York, by his promissory note in writing, dated on that day, for value received, promised to pay to the defendant, James Plant, or order, the sum of $500 on the 15th day of July next ensuing; and Plant afterwards, and before the same became due, for value received,. indorsed the said note, and the same was therefore, for value, transferred to the plaintiff, who is now the lawful owner and holder thereof. That payment of said note was duly demanded at maturity, and the same was thereupon duly protested for non-payment, and notice thereof duly given to the indorser, the expense of which protest was $1.34. That the said defendants have never paid said note, nor any part thereof, but are now justly indebted to the plaintiff therefor. Wherefore the plaintiff demanded judgment against the defendants, for the said sum of $500, with interest from the 18th day of July, 1867, besides the costs of this action, and said $1.34, notary’s fees.
    The defendant Schuyler, in his answer, alleged that the said James Plant, the payee of the note, at the time of the same, was justly indebted to one George S. Stringfield, in the sum of $200, and being justly indebted therefor, promised to pay the same on request; and that, though often requested, the said James Plant never paid the same nor any"part thereof; and that before the commencement of this action the said Stringfield duly sold, assigned and transferred the said claim or demand to this defendant, and that he was the owner and holder thereof. And the defendant alleged, upon information and belief, that the plaintiff was not a Iona fide holder of said note, that he did not receive the same in the usual course of business, nor advance any new or full consideration therefor, and received the same with full knowledge of the defendant’s set-off to the same, and for the purpose of depriving the defendant thereof; and that he is not the real party in interest in said matter, but prosecutes the same for the benefit of the said James Plant.
    Second. The defendant further alleged that at the time of the making of said note, the said payee, James Plant, and this defendant, were stockholders in the American Bolt and Rivet Company, a cprporation organized under the laws of the state of Hew York, and the said James Plant at the date of said note executed to this defendant a nominal transfer of his said stock, for the purpose of enabling this defendant to exercise a greater control and influence in the said corporation for the use and benefit of this defendant and the said James Plant, stockholder, as aforesaid; and the said note mentioned and described in the complaint was executed and delivered to the said James Plant as a memorandum note, and not for the purpose of negotiating the same; by the said James Plant, and it was expressly understood and agreed that the defendant was to have the right and privilege of returning the said stock to Plant, and which he is ready and willing to do, upon the return of the said note, pursuant to the said agreement and understanding; and the defendant alleged, upon information and belief, that the plaintiff was not a bona fide holder of the said note, that he did not take the same in the ordinary course of business, nor advance any new or full consideration therefor, and that he received the same with knowledge of the circumstances under which the same was made as aforesaid; and that he is not in fact the owner of said note, but is prosecuting the same for the benefit of the said James Plant; and the defendant denied each and every allegation contained in the said complaint,, inconsistent with the foregoing answer, and demanded judgment that the said complaint be dismissed, with costs.
   McCunn, J.

The answer does not deny the making of the note for value, its terms, its indorsement and delivery to the plaintiff that it became due, &c.

In the second part of the answer, for the purpose, as is supposed of showing a want of consideration, the defend- ' ant has pleaded a number of “ understandings ” about stock, &c. but what connection they had with the making and delivery of the note does not appear. Indeed, if any thing can be inferred from the pleaded matter, it is that the note was given for the assignment of stock which was beneficial to the defendant Schuyler, and which therefore constituted a consideration sufficient to hold the note.

The allegations in the answer that the note was not to be negotiated, and that the defendant should have the right of returning said stock, &c. are frivolous, because the terms of the note are admitted in the answer, from which the court can see it was negotiable; and no agreement that James Plant should take a re-assignment of said stock, in payment of the note, is alleged. Moreover, the pleadings show that the note was payable in money, and it is clearthat all such agreements or understandings, if made, would be void. (Edwards on Bills, 147.)

Again, there was no tender or offer to pay the note by a re-assignment of the stock or otherwise; on the contrary, it appears that the defendant refused to pay the same in any manner; The allegations in the answer, on information- and belief, “ that the plaintiff is not the bona fide owner and holder of said note; that he did not receive the same. in. the usual course of business, nor advanpp any new or full consideration therefor; that J ames Plant is the party in interest,” &e. are all frivolous.

The answer does not deny the facts constituting ownership in the plaintiff. The conclusions only of the defendant are pleaded; this is bad pleading. (Russell v. Clapp, 4 How. 347.)

The allegation that the plaintiff is not the owner and “holder of the note, and that A. B. is,” creates no issue, and amounts to a mere traverse not recognized by our practice. (Brown v. Ryckman, 12 How. 313. Adams v. Holley, Id. 326. Seeley v. Engell, 17 Barb. 530.) And it is not denied in the answer that, the plaintiff advanced a consideration for the note; therefore these denials or allegations of conclusions are frivolous. (Witherspoon v. Van Dolar, 15 How. 266. Holstein v. Rice, Id. 1. Tompkins v. Acer, 10 id. 309.)

It seems to me that the denial following such allegations in the answer “ of all matters inconsistent with the answer,” is merely a re-affirmance, or repetition of the matters previously pleaded.

I hold, therefore, that the matters pleaded are entirely insufficient to constitute a set-off to the note. There is not a single fact pleaded, showing that James Plant ever became indebted to Stringfield.- The mere statement of the conclusion that Plant so became indebted is insufficient. (Van Schaick v. Winne, 16 Barb. 95. Myers v. Machado, 14 How. 149.)

Again, it does not appear that the assignment to Schuyler was made before the note to the plaintiff, and therefore • it cannot be allowed as a set-off to the note. (2 R. S. 450, 451, 3d ed.)

Judgment must be ordered, on the pleadings, for the plaintiff.


author: Jones, J.

text:
    Maurice R. Clark, plaintiff, vs. Sarah Esther Clark, defendant.
    1. Where an answer sets up the defense of another action pending, which allegation, though true at the time the answer is served, is untrue at the time of noticing a motion to strike out the defense, by reason of an order for discontinuance having been entered, in the mean time, that part of the answer will be stricken out as sham.
    2. In an action by a husband against his wife, for a divorce on the gz'ound of adultery, the defendant alleged in her answer that the plaintiff, in February and March, 1867, at the cities of New York and Brooklyn, committed adultery, and thereby contracted a venereal disease, which he communicated to the defendant, some time about the month of March, 1867. Held that the allegations in the answer were sufficiently specific, and that the adultery of the plaintiff was well pleaded.
    8. When such allegations in an answer will not be struck out as false.

    (Before Jones, J. at special term,
    December —, 1867.)
    Motion to strike out defenses as sham.
   Jones, J.

As regards the defense of another action pending, alleged in the tenth paragraph of the answer, the allegations in that paragraph were true at the time the answer was served, for no order of discontinuance had been entered.. (See opinion in Bishop v. Bishop, ante p. 194.) But at the time this motion was noticed they were not true, because then an order of discontinuance had been entered. This paragraph must consequently be stricken out as sham. (1 John. Ch. 397. 3 How. Pr. 414. 10 N. Y. Rep. 500.)

With regard to the allegations in the sixth, seventh and eighth paragraphs of the answer respecting adulteries committed by the plaintiff, I do not understand it to be claimed that these allegations are false; at all events there is no affidavit denying them. But it is claimed that inasmuch as the defendant fails to allege in her answer that she has not cohabited with the plaintiff since the discovery of the adulteries therein alleged, and as the affidavits clearly show that she has been living with the plaintiff, apparently as man and wife, in perfect amity, long after her discovery of those adulteries, it is apparent that a defense based on them cannot be sustained; and, therefore, although the allegations made, so far as they go, are true, yet as other matters which are not alleged, without whose existence those which are alleged cannot constitute a good defense, and are disproved, the whole defense becomes a sham, because, although true in the parts alleged, there is falsity in essential parts not alleged. And this is sufficient to authorize the striking out of the true allegations as sham. It is also contended that these allegations, by reason of there being no averment of non-cohabitation, constituted no real defense and therefore are sham. In the view which I have taken of the answer it is unnecessary to decide the points thus raised.

The answer also alleges adultery committed subsequent to those before referred to, and that by reason thereof the plaintiff communicated to the defendant a venereal disease. If this be so, then the effect of the previous adulteries, although' condoned by voluntary cohabitation, would be revived, and are proper to be set forth in the answer. The questions then arise whether the subsequent adultery set forth in the fifth paragraph, is sufficiently pleaded, and if so, whether the allegation is clearly shown to be false. The allegation is, in effect, that the plaintiff, in February and March, 1867, at the cities of Hew York and Brooklyn, committed adultery, and thereby contracted a venereal dis- . ease which he communicated to the defendant some time about the month of March, 1867. This allegation is as specific as that in the complaint in Johnson v. Johnson, (14 John. 637,) upon which the court of errors, under the •circumstances of that case, was of opinion that the plaintiff was entitled to a divorce. The circumstances in this case are in the essential points similar to those in the case stated. I am aware of the general rule that the time when, place where, and person with whom the adultery charged was committed, should he alleged. But that is matter of form and regularity only, and the rule is not universal. There are many exceptions to it; one of them is where the husband, long after marriage, communicates a venereal disease to the wife. In such case that fact is prima facie evidence of adultery having been committed, although when, where, or with whom, is not proved. The innocent party, upon proving that fact, may rest his or her case, and if the proof be not rebutted is entitled to a divorce, except in those cases where it is essential to the jurisdiction of the court that the adultery should have been committed within this state. In which case other circumstantial evidence will be sufficient to warrant a finding that the adultery was committed in this state. As then, where the wife alleges the communication to her by her husband, of a disease, and proves it the fruit of an illicit connection, she is not bound to prove when, where or with whom the husband had the adulterous intercourse' which resulted in his contracting the disease, it would be superfluous to require her to be thus specific in the allegations in her answer or complaint. I think therefore the. adultery ' alleged in the fifth paragraph is sufficiently pleaded.

But are the allegations respecting it clearly shown to be false ? It is urged that they are, b'ecause she swears that the disease was communicated to her about March last, and that she could not so swear unless she then knew it; that as she must have known it in March, although she swears that she has not cohabited with her husband since she discovered it, while the proof is incontestable that she lived with him afterwards, it is evident that the whole thing is false; and it is further said that her admitted act of adultery took place long after March, and if she knew in March that she had contracted the disease, or even if she had known it at the time of committing the adultery, she would not have done so. This is convicting the defendant of perjury by a process of reasoning which is not satisfactory to my mind. In order thus to convict, there should be no escape from the conclusions deduced by the reasoning. In this case it may be that the very admitted act of adultery led to the defendant’s discovery of her affliction. The person with whom that adultery was committed may have first opened her eyes, upon which on going to a physician she may have learned from him that indications which were not observed until March, 1867, were evidences of the disease. Upon this she may base her allegation. The possibility of this having been the mode in which the defendant first discovered her affliction and arrived at a knowledge of the time when her husband infected her, is sufficient to prevent me from acting on the reasoning of the plaintiff’s counsel and striking out the allegation as clearly false. It is true the plaintiff unequivocally denies this allegation. But that only raises an issue between the parties. What may be the result of the trial of that issue it is not my province to speculate on. Suffice it to say that the allegations are not so clearly and palpably false as to justify me in debarring the defendant from a trial upon them.

So much of the motion as calls for striking out the tenth paragraph must be granted; the rest of it must be denied, without costs.


text:
    John DePol et al. plaintiffs, vs. Auguste Sohlke et al. defendants.
    1. A court of equity will not enforce the specific performance of a contract for the rendition of mere personal services. A temporary injunction cannot, therefore, he sustained as a means of enforcing such performance.
    2. An injunction is granted to prevent the breach of a covenant not to perform an act of a personal character, or relating to personal property, only on the ground that the performance of the act would produce irreparable damages. Consequently, when no damages can result, there can be no injunction.
    3. If the object of a restrictive clause, in a contract for personal services by the defendant as a danseuse, is to prevent the defendant from dancing for others, without any substantial benefit to arise therefrom to the plaintiffs, an injunction should not issue to restrain a breach of it.
    (Before Jones, J. at special term,
    December —, 1867.)
    Motion to vacate a temporary injunction.
   Jones, J.

As the law now stands in England and this state a court of equity will not enforce the specific performance of a contract for the rendition of mere personal services. The temporary injunction in question cannot, therefore, be sustained as a means of enforcing such performace. If there is no other ground for sustaining it, it must be dissolved. This injunction, however, was sued out to prevent the defendant Sohlke from violating a'covenant not to render her personal services as a danseuse to persons other than the plaintiffs, on the ground that her breach of that covenant would inflict irreparable injury on the plaintiffs. Assuming that this is a good cause for issuing an injunction, I will address myself to the question as to whether* the papers show that a temporary injunction is necessary to prevent irreparable damage to the plaintiffs, which-would otherwise arise from the breach' of that covenant. To determine this it will he necessary to glance at the contract. Its provisions have a tw# fold object: 1st. To secure the services of the defendant Sohlke. 2d. To prevent her appearing at another theatre, so that she shall not add to the attractions of another theatre within a reasonable vicinage of the plaintiffs, thereby drawing custom from the plaintiffs’ establishment. To effect this latter object the restrictive clause in question is inserted in the contract. The reason for its insertion is not given in the contract, it is true. But for the decision of this motion it is necessary to inquire and ascertain the reason of the prohibition, for equity does not interpose its strong arm through its writ of injunction, pendente lite, except when it can perceive that some benefit is to be gained which is substantial and commendable in its nature. If, then, the object of the restrictive clause was to prevent the defendant Sohlke from dancing for others, without any substantial benefit to arise therefrom to the plaintiffs, an injunction should not issue. How what benefit can arise to the plaintiffs from such prevention ? It is said that if she is prevented from gaining her livelihood in the employment of others, she will necessarily be obliged to keep her contract with the plaintiffs. Even conceding, for th¿ purposes of this motion, that the conclusion drawn from the premises of this argument is correct, still such expected benefit is insufficient to authorize an injunction. It is\ calling on the court to effect indirectly that which it J refuses to do directly, viz: to compel a specific perform- / anee. That, I for one, decline to do. We must either */ overturn the doctrine that a specific performance will not, be compelled, or steadily refuse to grant relief which is solely designed to effect that object. It is conceded by the plaintiffs’ counsel that a specific performance will not be decreed, and even if it were not, the propriety of a principle which has been announced and sustained by the courts of England and this state down to the present time would not be permitted to be discussed, much less overruled, on a motion to vacate a temporary injunction. The only other benefit which I can perceive as likely to arise to the plaintiffs from the prevention is that above suggested, viz. the prevention of the defendant Sohlke drawing [J custom from the plaintiffs by dancing at another establish-I ment. It can readily be perceived how important it might be for a manager, even if he could not compel the services of one whom he had employed, still to be able to prevent the' appearance of that employee at a rival theatre. IjFor a strong illustration, take two rival ballet companies, giving performances in the city of New York, one having in its engagement a danseuse superior and more attractive than any in the city, but otherwise being uequalin strength and attractions. Now if the superior ManseS&e-sefuse-to-perform for tiie company to whom she is engaged, the two companies become equal, but if she performs for the other company, then that company becomes the superior in strength and- attractiveness. In the case put, it is evident that the damage ensuing on the transfer of the services is greater than that which would ensue on the mere non-performance. The damage it is clear, would be more or less according to the' merit, attractiveness or reputation of the performer. In some cases the damage would be merely nominal, while in others it would be impossible to measure .it. It is for the reason that it is utterly impossible to measure the damages, that equity interferes to prevent the violation of such a restrictive clause as the one in question, when it can perceive that such violation will damnify the party seeking its interference. /Bearing these principles in view, can the court upon the papers presented, perceive that the prevention asked for will benefit the plaintiffs ? These papers show that the plaintiffs have at present no establishment in the city of New York, or its immediate vicinity or elsewhere, in active operation. And that there is no prospect of having one for some length of time to come. It cannot, therefore, be said that the performance of the defendant Sohlke at another theatre draws, or tends to draw, custom from them. It may be urged that at some period hereafter they may have an establishment, and in that event the public performance of the defendant Sohlke in the meantime will have so satiated the public as that they will not care to go to see her when she again performs for them. This assumes that she will again perform for them. Such a bare assumption affords no basis for legal action.

As, then, this injunction can be sustained only on the ground that it will benefit the plaintiffs by preventing a withdrawal of custom from them, and as from the papers it appears that her performing for other parties cannot, for the present at least; withdraw custom from the plaintiffs, the injunction must be dissolved. This may be expressed somewhat differently. An injunction is granted to prevent the breach of a covenant, not to. perform an act of a personal character, or relating to personal property, only on the ground that the performance of the act would produce irreparable damages. Consequently, when no damage can result, there' can be no injunction. In the present case the performance of the act in question (considered irrespective of any connection with the obligation to render services to the plaintiffs) can only produce damage by withdrawing custom from the establishment of the plaintiffs. As then, the plaintiffs have not at present, and are not likely to have for some time to come, . an establishment in active operation, therefore no custom can, at present, be withdrawn from them, and it follows that no damages are now resulting, or can be anticipated to result, for some time to come, from the act which it is sought to enjoin. For this reason, without adverting to any other, the present temporary injunction should be dissolved, with $10 costs.


text:
    Clark vs. Clark.
    1. In an action brought against a wife, for a divorce, on the ground of adultery, neither counsel fees nor alimony will be allowed the defendant, upon a mere recriminatory charge of adultery, made in the answer on information and belief, in very general terms.
    2. But where the wife swears positively that the husband, by reason of his adulteries, contracted a venereal disease, which he communicated to her, the case comes within the rule which allows a wife counsel fees and alimony when she swears positively to allegations constituting an affirmative defense.
    (Before Jones, J. at special term,
    December 18, 1867.)
    Motion by the defendant for counsel fees and alimony.
   Jones, J.

In Strong v. Strong, (1 Abb. N. S. 358,) it is laid down that, as a general rule, in an action for divorce, fro causa adultery brought against the wife, if she sets up an affirmative defense, such as recrimination, counsel fees and alimony will be allowed her unless the court is satisfied that she has no reasonable ground of defense, in which case the court, in the exercise of a sound discretion, may refuse counsel fees and alimony. In that case it was also further laid down that if the wife swears particularly to the allegations in the answer constituting affirmative defenses, then, although affidavits may be produced contradicting her positive oath as to the affirmative defenses, still the court will be satisfied that she has a reasonable ground of defense.

In the present case, the defendant, in the fifth paragraph of her answer makes, upon information and belief, a recriminatory charge of adultery, in certainly very general terms. If the answer stopped here (there being no affidadavit to support it,) neither counsel fees nor alimony could be allowed. But the answer goes further, and positively charges that the plaintifij by reason of such adulteries contracted a venereal disease which he communicated to the defendant. On the motion to strike out sundry of the defenses in this answer, it was held that the fact that the hushand, long after marriage, had communicated a venereal disease to the wife, was prima facie evidence of adultery having been committed by him. If then the wife swears positively that the husband, long after marriage, communicated such disease to her, the case comes within the rule which allows a wife counsel fees and alimony when she swears positively to allegations constituting an affirmative defense. There are some strong and special cases which constitute exceptions to the above general rules laid down in Strong v. Strong. Suffice it to say this case does not fall within these exceptions. The affidavits of Planby, Petit, Huestis and Agnew, read in behalf of the plaintiff, do not affect the question involved. These affidavits merely go to show a condonation of adultery committed previous to those charged in the fifth paragraph. I do not understand that such condonation is denied, but it is claimed that these previous adulteries have been revived by the commission of the subsequent ones charged in the fifth paragraph.

Counsel fees and alimony must be allowed. Upon a view of the whole case and affidavits, I think $15 per week should be allowed for alimony, and $50 for counsel fees. The alimony to commence when the plaintiff left off paying the weekly stipend he has heretofore been voluntarily paying; also the costs of this motion.


author: Monell, J.

text:
    John Garvey, plaintiff, vs. John G. Carey, defendant.
    1. Misconduct on the part of arbitrators, and mistake in ascertaining the amount due from one party to the other, were always sufficient grounds, in equity, to vacate and annul an award, and may now he set up as a defense to an action upon the award.

      % In an action upon an award, the defendant alleged, in his answer, (1.) That the arbitrators, after first notifying the parties to appear before them, and after having partly heard the allegations of the defendant, proceeded irregularly and illegally, without notice to the defendant, .and without fixing any day for the hearing of the matters .submitted; and made their award before the defendant had concluded his proofs and allegations before them; and (2.) That the arbitrators, in computing the amount of profits to which each party would be entitled under the agreement, made a mistake in such computation, which mistake was a clerical error, and that the award was the result of such clerical error. Held, on demurrer, that the answer was sufficient, both in substance and form,
    (Before Monell, J. at special term,
    January —, 1868.)
    The action is upon an award of arbitrators. The submission was “ to settle all accounts and differences between said Carey and Garvey, growing out of and relating to five certain buildings erected on the southwest corner of Fiftieth street and Sixth avenue, in the city of New York; said settlement to be governed and founded on a certain agreement made and entered into by and between said Carey and Garvey, bearing date the 23d day of January, 1867.” Upon such submission, the arbitrators made an award, “that John Garvey is entitled to receive from John G. Carey the sum of five thousand one hundred and twenty-five dollars and sixty cents, as his share of the profits derived from said buildings, cash advanced by Carey to Garvey to be refunded by said Garvey.”
    To the complaint the defendant answered: 1. That the arbitrators, after first notifying the parties to appear before' them, and after having partly heard the allegations of the defendant, proceeded irregularly and illegally, without notice to the defendant, and without fixing any day for the hearing of the matters submitted; and made their award before the case was finally submitted to them, and before the defendant had concluded his proofs and allegations before them; and, 2. That the arbitrators, in computing the amount of profits to which each party would be entitled under the agreement, made a mistake in such computation, which mistake was a clerical error, and that the award was the result of such clerical error.
    The demurrer was to the sufficiency of the answer as a defense.

      George C. Genet, for the plaintiff.

      Nelson Smith, for the defendant.
   Monell, J.

The answer in this case is, I think, sufficient both in substance and form. The defendant seeks to avoid the award on two grounds, namely, misconduct on the part of the arbitrators, and mistake in ascertaining the amount due from the defendant to the plaintiff! Such grounds were always sufficient, in equity, to vacate and annul an award, (Herrick v. Blair, 1 John. Ch. 101; Van Cortlandt v. Underhill, 17 John. 504; Bouck v. Wilber, 4 John. Ch. 405 ; Knox v. Symmonds, 1 Ves. Jr. 369 ; Corneforth v. Geer, 2 Vern. 705,) and may now be set up as a defense to an action upon the award. (Dobson v. Pearce, 12 N. Y. Rep. 156. N. Y. Cen. Ins. Co. v. Nat. Pro. Ins. Co., 14 id. 85.)

The misconduct complained of, was in proceeding without notice to the defendant, and without fixing any day for the hearing of the matters submitted, and in making the award before the case was finally submitted to the arbitrators, and before the defendant had .concluded his proofs.

If the defendant shall be able to sustain these charges of misconduct, by proof, I think he will make out a strong case against the validity of the award, and be entitled to have it set aside. The charges of misbehavior are stronger than in any of the cases to which I have referred.

The second defense demurred to, of. mistake in the computation made by the arbitrators, is a little indefinitely stated. It does not appear what the nature of the mistake was, except that it is alleged that it is a clerical error. I think, however, it is sufficient in form, and proof may be given under it of such a mistake as the court will recognize as sufficient to vacate the award.

The disposition I have made of the demurrer renders it unnecessary for me to determine whether the complaint states a cause of action.

The defendant must have judgment on the demurrer, with costs.


text:
    Joseph Ferrier, plaintiff vs. The American Glass Silvering Company, defendant.
    The provisions of the Code of Procedure do not .authorize the property of corporations created hy or under the Jaws of this state to he attached. Foreign corporations, only, were intended to he subjected to the Jaw of attachments, in actions.
    (Before Monell, J. at special term,
    January —, 1868.
    Motion to vacate an attachment.
   Monell, J.

The defendant in this case is a corporation created by or under the laws of this state, and an attachment against its property has been granted on the ground of" a fraudulent disposition of its property. The motion is to vacate and set aside such attachment.

I have not been able to find any provision in the Code which authorizes the issuing of an attachment against a domestic corporation. The question is new, and has not, that I am aware, been adjudicated upon.

If the power to grant attachments in actions against property, which is given in terms by section 227 of the Code, was confined to that section, it might be interpreted to embrace domestic as well as foreign corporations; for although it declares that in actions, &c. “ against a corporation created by or under the laws of any other state, government, or country, or against a defendant who is not a resident of this state, or against a defendant who has absconded or concealed himself,” the plaintiff may have the defendant’s property attached; yet it also provides, that “ whenever any person or corporation is about to remove any of his or its property from this state, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his or its property, with intent to defraud creditors,” &c. an attachment in like manner may be issued. There would, therefore, seem to be, not only two classes of defendants, but two classes of cases, subject to the provisions of that section : (I.) Foreign corporations and non-resident, absconding or concealed defendants, in the one class; and (2.) Persons and corporations doing or intending to do some of the acts specified to defraud creditors, in the other class. The term “ corporation,” where it occurs the second time in the section, unlike its occurrence in the first part, is not apparently restricted or confined to foreign corporations, but is general; and if the section stood alone, might well be construed to mean any corporation; and strength therefore would be given to such construction, from the fact that the property of a foreign corporation can be attached as of course, and without any allegation of a fraudulent disposition of it. Whereas the property of other corporations, necessarily including such as were created by or under the laws of this state, can be attached only on proof of an intention to defraud creditors; thus rendering the use of the term “ corporation ” in the second branch of the section unnecessary, unless it was the intention of the legislature to apply the section to such latter corporations; and I should yield to such construction were there not other parts of the Code which seem to me to wholly destroy the inference.

Although the section referred to specifies the cases in which attachments may issue, and apparently includes domestic corporations, yet the requisite proof to obtain their issue is prescribed in the two hundred and twenty-ninth section. That section provides that “the warrant may he issued whenever it shall appear, by affidavit, that a cause of action exists * * * and that the defendant is either a foreign corporation, or not a resident of this state, or' has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or that such corporation or person has removed, or is about to remove, any of his or its property from this state, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his or its property, with the like intent, whether such defendant be a resident of this state or not.”

It will be seen that in this section, which prescribes the manner and substance of the proof required, the words “ such corporation ” is employed, which necessarily, it seems to me, refers to the foreign corporation in the beginning of the section, and not to the term “ corporation ” in the two hundred and twenty-seventh section. It would be difficult, I think, to discern a satisfactory reason for the change or difference of designation in the two sections, unless upon the supposition that the direct and immediate reference intended by the word “ such ” was deemed more important in the section which prescribes the nature of the proof required, than in the section which designates the cases in which attachments may be issued; or that it was omitted, through oversight or mistake, from the first section.

It cannot be said, in reference to the two hundred and twenty-ninth section, that the apparent or seeming want of any necessity in the two hundred and twenty-seventh section for a further provision for attachments against foreign corporations or non-resident defendants being required, inasmuch as their property can be attached without proof of a fraudulent intent, is a reason for the belief that the legislature intended the latter proof to apply to domestic corporations or residents of the state only; for the latter clause of the two hundred and twenty-ninth section in express terms authorizes the issuing of attachments, upon proof of a fraudulent intent, “ whether such defendant be a resident of this state or not;” thus clearly including non-residents among those whose property may be attached, upon proof of its fraudulent disposition, notwithstanding an attachment may be issued upon proof of non-residence merely.

This accumulative proof, so seemingly unnecessary in the case of nón-residents, aids us in getting at' the intention of the legislature, which would seem to have been that the property of foreign corporations only, was to be made liable to seizure on attachment; for otherwise the word “ such ” would have no significance. It seems to me, therefore, that not only the literal reading, but also the fair interpretation of the two sections taken together, is that foreign corporations only were intended to be subjected to the law of attachments in actions.

There is another section which strengthens the view I have takén of this question. The two hundred and thirty-ninth section provides that if the foreign corporation, or absent, or absconding, or concealed defendant, recover judgment against the plaintiff in such action,” &c. the sheriff shall deliver the property attached, or the proceeds, to the defendant; that the warrant he discharged and the property released from the attachment. In. that section corporations other than foreign are not mentioned, and no provision is made for a judgment in favor of a domestic corporation; thus leading to the conclusion that such corporations were not included in the class mentioned in the previous sections.

Under the Revised Statutes, attachments against property .were allowed only against foreign corporations and absconding, concealed, or non-resident debtors, (2 R. S. 1 and 459;) and therefore the provisions of the Code extending such provisional remedy to debtors who had fraudulently disposed of their property, is new.

It may be, that in excluding corporations existing under the laws of this state, the legislature had in view the power, which the Revised Statutes has given to the courts, (2 R. S. 462, § 33, subd. 7, 8,) to set aside alienations of property, made by trustees or other officers of corporations for purposes foreign to the lawful business and objects of the corporation; and to restrain and prevent any such alienations, in cases where it may be threatened; and that such power was regarded as a sufficient remedy and protection to creditors, without extending to them the remedy which the Code provides.

I have referred, I believe, to all the provisions of the Code which can aid in determining the question presented upon this motion; and their examination has satisfied me that they do not authorize the property of corporations created by or under the laws of this state to be attached.

The motion to set aside the attachment must, therefore, be granted.


text:
    Margaret Irvine, plaintiff, vs. Amasa Spring et. al. defendants.
    An attorney’s clerk, however extensive his general powers may he, can not discontinue an action without the consent of his principal.
    (Before McCunn, J. at special term,
    May —, 1865.)
    Motion by the plaintiff to set aside an order entered for the discontinuance of this action.
    P. Y. Gutter, for the motion.

      Mr. Niles, opposed.
   McCunn, J.

In this case it appears that a trial was had at the circuit, on the 9th day of Hovember, last, before a jnry, and the plaintiff recovered a verdict for $400; that before judgment was perfected, or costs taxed, Mr. Hiles, the defendant’s attorney, approached a person by the name of Walsh, who had at times acted as clerk in the office of the plaintiff’s attorney, and procured from him, unknown to the plaintiff’s attorney, a consent to the effect that an order might be entered discontinuing the action on payment of $400, the amount of the verdict, saying nothing of the costs. On this consent, an order was accordingly entered, discontinuing the action.

It is quite clear, that no clerk, however extensive his general powers may be, can discontinue an action without the consent of his principal. Indeed, the courts are so jealous of the interests of the different suitors that they will only allow an attorney to give a satisfaction piece within two years after entry of judgment, and that on receiving the full amount of the claim.

The person claiming to be the clerk of the plaintiff’s attorney, and who consented to the entry of the order for discontinuance, makes two affidavits on this motion, one for the plaintiff and one for the defendant*; and as there was some slight contradiction in the affidavits, I ordered the appearance of Walsh in court and examined him. I then learned that Mr. bTiles handed $55 to Walsh individualy, in consideration that he, Walsh, would receive the certified check of $400 for Mr. Cutler, and sign the consent to enter the order of discontinuance.

Under such a state of facts, I deem it my duty not only to set aside the order of the 20th of December, unconditionally, but to deny the defendants’ attorney’s request for time to make a case.

Motion granted, with $10 costs.


author: By the Court, Garvin, J.

text:
    Washington Ritter, plaintiff and respondent, vs. James S. Cushman et al. defendants and appellants.
    1. Although the owner of stock may agree with a broker, that the latter may sell without notice, when stocks fall in price so that the margin does not cover the difference between current rates and the price paid, yet, in the absence of any such agreement, it would be a breach of good faith and common honesty to allow the owner’s property to be sacrificed, without giving him an opportunity to increase his margin and hold the stock for a favorable change in the market.
    2. The rule that the report of a referee, like the verdict of a jury, in a case of conflicting evidence, is conclusive as to questions of fact, applies to the findings of a judge on the trial of an action.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard January 16, 1867;
    decided May —, 1867.
    Appeal from a judgment entered at a special term, on a trial before the chief justice, without a jury.
    The action was brought to recover a certain sum ($800) lent by the plaintiff to the defendants, and damages for the wrongful sale and conversion of two hundred shares of the stock of the Erie Railway Company, and of one hundred shares of the stock of the Michigan Southern and Northern Indiana Railroad Company.
    In the summer of 1863, the plaintiff employed the defendants as partners and stockbrokers to purchase and sell stocks for him, and in the course of such dealings he deposited with them the sum of $4500 as security. On the 15th of March, 1864, they were indebted to him in $4662.50, on account of which they paid him $162.50 on that day. Between this date and the 18th of April, 1864, they bought and sold stocks for him; which transactions, in the aggregate, amounted to about $150,000. All of these transactions were approved by the plaintiff, except the sale by the defendants, on the 18th of April, 1864, of two hundred shares of the capital stock of the New York and Erie Railway Company, and one hundred shares of the capital stock of the Michigan Southern and Northern Indiana Railroad Company. These stocks had been purchased or held by the defendants for thé plaintiff upon an agreement to hold or “ carry ” them, retaining the plaintiff’s money in their hands as “ margin ” or security at pleasure of the plaintiff, while his security was ample. These sales (of April 18,1864,) were claimed to have been made without the authority or ratification of the plaintiff, and without any deficiency of security, and without any notice of time or place of sale, or of intention to sell. During the same month of April, 1864, the stocks were worth, in the market, a much larger sum than the sum for which they were sold by the defendants.
    The plaintiff claimed to recover damages for the conversion of these stocks, at their market value, on the 25th of April, 1864, and to have his accounts with the defendants restated, giving him credit at the prices of April 25, in- ■ stead of the prices for which they were converted by the defendants. By this computation, the defendants were indebted to the plaintiff in $1961.24, for which he had judg ment, and the defendants appealed.'

      A. J. Perry, for the appellants, defendants.
    I. The main questions are of fact, and the defendants submit that the plaintiff has failed to prove that the defendants agreed “ to hold or carry said stocks for said plaintiff during his pleasure.” The only testimony upon that subject is by the plaintiff, and by his son, in which there is an entire failure to show any expressed or implied agreement to hold or carry for any time.
    II. The defendants claim that they had authority to sell the stocks, and that the fact ought to be so found. That this authority was communicated to the defendants by Henry T. Hitter, the plaintiff’s son, who was the authorized agent of his father for the purpose.
    HI. The defendants have proved that they offered to return the stocks to the plaintiff on the 19th or 20th of April, and also to return his money in their hands, but that he declined the offer.
    IV. These facts being established, the judgment below should be reversed, and judgment of dismissal directed by this court.'

      Albert Mathews, for the respondent, plaintiff.
    I. The question of fact as to the unauthorized sale of the stocks, and all other questions of fact made by the defendants, rested upon conflicting evidence, and the decision of the judge at special term, is conclusive. (Cohen v. Dupont, 1 Sandf. 262. Smith v. Tiffany, 36 Barb. 25. Hoogland v. Wight, 7 Bosw. 394.)
    H. The defendants having sold the stocks in question without authority, and converted the same to their own use, were liable in damages. (Dykers v. Allen, 7 Hill, 497.
      Rankin v. McCullough, 12 Barb. 103. Andrews v. Clerke, 3 Bosw. 585. Wilson v. Little, 2 Comst. 443. Wilson v. Mathews, 24 Barb. 295. Brass v. Worth, 40 id. 655.)
    III- The proper rule of damages was applied at the trial, and the judgment should be affirmed, with costs. (Cortelyou v. Lansing, 2 Caines’ Cases, 200. West v. Wentworth, 3 Cowen, 82. Dillenback v. Jerome, 7 id. 294. Kortright v. Buffalo Com. Bank, 20 Wend. 91. Arnold v. Suffolk Bank, 27 Barb. 424. Romaine v. Van Allen, 26 N. Y. Rep. 309. Rawdon v. Barton, 4 Texas Rep. 289. Calvit v. McFadden, 13 id. 324. Bank of Montgomery v. Reeve, Penn. Rep. 143. Ewing v. Blount, 20 Ala. Rep. 694. Stilwell v. Meigs, MS. Supreme Court, June, 1866. Scott v. Rogers, 31 N. Y. Rep. 676. Blot v. Boiceau, 3 id. 82.)
   By the Court, Garvin, J.

The principal objections, as presented upon the argument, and as I understand now to be insisted upon, are questions of fact.

The defendants insist: (1.) That the plaintiff failed to prove that the defendants agreed to hold and carry the stock, for the conversion of which this action is brought. (2.) That there is no proof of want, of authority to sell the stocks, but, on the contrary, the defendants claim there was evidence of authority to sell. The stocks so alleged to have been converted by the defendants were two hundred shares of the Erie Railway Company, and one hundred shares of the Michigan Southern and Northern Indiana Railroad Company.

The chief justice found in substance as follows: (1.) That the defendants made agreements with the plaintiff and his son, respecting the purchase and sale of stock and securities on account of the plaintiff. (2.) That, in pursuance of such agreements, the defendants purchased and held two hundred shares of Erie for the plaintiff, and that the remaining one hundred shares of Michigan Southern and Northern Indiana were transferred to the account of the plaintiff, and thereafter held by the defendants for him. (3.) That the defendants sold the whole three hundred shares without authority from, or notice to, the plaintiff, or any default on his part.

Upon the question of an agreement to carry the stock . for the plaintiff, both parties say there was an agreement so to do; but no length of time is proved. This cannot be necessary, there being no notice to the plaintiff that the margin was too small, or that the defendants felt insecure. Clearly, before any sale of the plaintiff’s stock was made, he should have had notice of the defendants’ intention to sell. Doubtless, parties may agree that the broker may sell without notice, when stocks fall in price so that the margin does not cover the difference between current rates and the price paid. But, in the absence of any such agreement, it would be a breach of good faith and common honesty to allow the plaintiff’s property to be sacrificed, without giving him an opportunity to increase his margin and hold the stock for a favorable change in the market. I know it is said that fluctuations in the stock market are so sudden and unexpected, that there is not time to give notice; but these abrupt transitions in the value of stocks are, and have been, well known for many, years, and should be provided for by brokers, and those with whom they deal. If no such provision is made, parties must abide by the rules of law. ■ We think the findings of fact are sustained' by the evidence. Much of the evidence is conflicting; especially upon the question of the unauthorized sale of the stock. This question of fact was passed upon by the judge who tried the case, and found for the plaintiff. His decision is conclusive—as much so as if found by the verdict of a jury. The rule stated by Judge Sandford is: “ Where there is testimony on either side sufficient to warrant a verdict,* if standing alone, we are not at liberty to overturn the verdict, for the reason that there was counter testimony on the other side, even if it be apparently equal in point of weight.” There must be a preponderance against the finding, so great as to show a case of mistake, passion or prejudice. (1 Sandf. 262.)

Again, the report of a referee, like the verdict of a jury, in a case of conflicting evidence, is conclusive as to questions of fact. (Hoogland et al. v. Wight, 7 Bosw. 394. Davis v. Allen et al. 3 Comst. 168.) I see no reason why the same rule should not be applied to the findings of a judge who takes the testimony, sees and hears the witnesses, and is quite as well able as a juiy or referee to come to a correct conclusion upon the facts. There is no question made upon the rule of damages adopted by the court.

It is, therefore, plain the stocks belonged to the plaintiff, and were sold without authority; that the defendants' converted them, and aré liable for the damages.

The judgment should be affirmed, with costs.


author: Barbour, J.

text:
    William H. Masterson et al. plaintiffs, vs. Arthur Short et al. defendants.
    1. The corporate authorities of the city of New York have power, under the charter, to license hackney-coaches, and to designate such portions of the streets of the city, for the standing places thereof, as they see fit.
    2. But they are bound to exercise that power with reasonable discretion. No ordinance of the common council can lawfully authorize the creation of a private nuisance; and no such ordinance will justify him Who creates one.
    S, The continual blocking up, by individuals, of the only doorway of another’s stables, by a continuous line of carriages in front thereof, is a nuisance, which can not be justified under an ordinance setting apart and designating a certain portion of a street as a hackney-coach stand; and will be restrained by a perpetual injunction.
    (Before Barbour, J. at special term,
    November, —, 1867.)

      The plaintiffs are the lessees of the premises at the northwest corner of Seventh avenue and Fifty-ninth street, and carry on the livery-stable business there. The defendants are engaged in the same business, and stand their hackney-coaches on a line, on the Seventh avenue, from Fifty-eighth to Fifty-ninth street, so that there remains no opening for the plaintiffs to drive their horses into, and out of, their premises. This action was brought to restrain the defendants from standing their horses and coaches in front of the plaintiffs’.premises, on the ground that such act of the defendants was a private nuisance. The defendants justified under ad ordinance of the common council, setting apart and designating the portion of the street and avenue in question as a hackney-coach stand.
    At the commencement of the action, a motion for a preliminary injunction was made, before Jones, J. and denied. (See ante p. 241.)
    The action was afterwards tried, on its merits, before Barbour, J. by whom the following opinion was delivered.
    A. H. Reavy, for the plaintiffs.

      Ira Shafer, J. H. Coleman and J. C. Shaw, for the defendants.
   Barbour, J.

This action is brought to restrain the defendants from using the street and avenue in front of the .plaintiffs’ livery stable, as a stand for their hackney-coaches, and for damages. The defendants justify under a license of the corporation of Sew York, setting apart and designating the portion of the street and avenue in question as a hackney-coach stand.

The evidence shows that the defendants, and also the plaintiffs, stand their carriages, while waiting for fares, along the entire front of the stables of the latter, and that as one carriage is withdrawn, the others move up and fill the space, so that there is, always, a continuous line of carriages in front of the plaintiffs’ passage-way for vehicles into and fróm their stables. The injury caused to the latter by this, seems to be "quite small, but not sufficiently so, I think, to fall within the maxim “ de minimis non curat lex.” Indeed, the only injury sustained by the plaintiffs, for which they can have a remedy in this action, is that which is caused by the detention of their coaches when about to leave or enter their premises, long enough to furnish an opening to be made in the line by the withdrawal of one or more of the carriages; which has always been done upon their request.

Undoubtedly, the corporate authorities of the city of Uew York have power, under the charter,- (if, indeed, it can be said, since the recent decisions of our highest court, that a charter is still in existence,) to license hackney-coaches, and designate such portions of the streets of the city for the standing places thereof, as they see fit. But, they are bound to exercise that power with reasonable discretion. Uo ordinance of the corporation can lawfully authorize the creation .of a private nuisance; and it follows that no such ordinance will justify him who creates one. The continual blocking up of the only doorway of the plaintiffs’ stable is, certainly, a nuisance—ua thing that worheth, hurt”—to them; and it is none the less so by reason of the letter of the ordinance which confers upon the owners of public hacks the right thus to use that portion of the streets.

The plaintiffs must have judgment perpetually restraining the defendants from obstructing the passage way in question, with costs.

As I am unable to determine from the evidence what amount of pecuniary damage has been sustained by the plaintiffs, I can make no direction as to that, except to say that if they desire it, they may take a reference to ascertain what damages they have sustained by the obstruction to their passage way.

The decree will be settled before me, if necessary, on two days’ notice.